Codington Cnty. v. Bd. of Com'rs of Codington Cnty.

• Decision Date: 07 March 1927
• Docket Number: No. 6400.,6400.
• Citation: 51 S.D. 131,212 N.W. 626
• Parties: CODINGTON COUNTY v. BOARD OF COM'RS OF CODINGTON COUNTY. et al.
• Court: South Dakota Supreme Court

51 S.D. 131

212 N.W. 626

CODINGTON COUNTY

v.BOARD OF COM'RS OF CODINGTON COUNTY. et al.

No. 6400.

Supreme Court of South Dakota.

March 7, 1927.

Appeal from Circuit Court, Codington County; W. W. Knight, Judge.

An appeal to the Circuit Court by the County of Codington from the decision of the Board of County Commissioners of Codington County, consisting of James E. Kiley and others, selecting the firm of Freed, Perkins & McWayne as architects for a courthouse. From an order dismissing the appeal, the County appeals. Affirmed.A. B. Jaynes, State's Atty., and Perry F. Loucks, both of Watertown, for appellant.

Hasche & Foley, of Watertown, for respondent Board.

McFarland & Kremer, of Watertown, for respondents Architects.

GATES, J.

The board of county commissioners of Codington county selected the firm of Freed, & McWayne as architects to furnish plans and specifications for, and superintend the construction of, a courthouse. The bid of said firm was not the lowest which had been submitted at the invitation of the board. From that determination the state's attorney, pursuant to the written demand of seven taxpayers, took an appeal to the circuit court. Rev. Code 1919, § 5886. Thereupon the board and the architects separately moved to dismiss the appeal. From an order of the circuit court dismissing the appeal this appeal is taken on behalf of the county.

The only question before us is whether the action taken by the board in selecting the firm of architects can be reviewed by the circuit court upon an appeal taken under the provisions of section 5886, Rev. Code 1919.

That statute provides, and the law has been the same since early territorial days:

“From all decisions of the board of county commissioners upon matters properly before it there shall be allowed an appeal to the circuit court.”

Notwithstanding the broad language of the statute, the Supreme Courts of Dakota Territory and of this state have consistently declared that it is only from such determinations as are of a quasi-judicial nature that an appeal will lie. The reasons for such holding are well stated in the following quotation from Fulkerson v. Board of Com'rs, 31 Kan. 125, 1 P. 261, which was quoted with approval by Chief Justice Tripp in Pierre Water-Works Co. v. Hughes Co., 5 Dak. 145, 37 N. W. 733:

“Now will an appeal lie from the board of county commissioners to the district court upon every ‘decision’ made by the board in the exercise of any of its various powers? The plaintiff in error claims that it will; and he makes this claim solely and entirely upon the broad language of section 30 of the act relating to counties and county officers. [Comp. Laws Kan. 1879, § 1419.] He says that ‘any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court.’ And he claims that a decision may be made by the board in the exercise of one power as well as in the exercise of any other power. This is true. The board must make decisions in the exercise of its legislative powers as well as in the exercise of its quasi judicial powers. And even in the exercise of its discretionary powers, or any of its political powers, it must also make decisions. And in any single matter that may come before the board it may make decisions. Many of such decisions may be preliminary or intermediate; and will the plaintiff in error claim that an appeal lies from each and every one of such decisions? Suppose that the board in the present case, instead of refusing to grant the petition of the plaintiff in error, and the fifty-five others who signed the same, had simply decided to postpone the matter until the next meeting of the board; and suppose the plaintiff in error had felt aggrieved at such decision could he have taken an appeal to the district court? And could he have continued to take appeals from every decision made by the board with reference to the matter? In the present case, Fulkerson alone appeals. Now has each one of the other fifty-five signers of the petition a like appeal? In the establishment of a county road, the board may make one hundred, or even a much greater number of decisions preliminary, intermediate and final; and will an appeal lie from such decisions? It seems to us there must be a limit somewhere; that the Legislature never intended that an appeal should lie from every decision made by the board of county commissioners. Then what are the limitations upon the privilege of persons to take appeals from the decisions of the board of county commissioners? The district court is simply a court, and exercises only judicial power; hence we would suppose that appeals from the board of county commissioners to the district court must be limited to such cases as require the exercise of purely judicial powers; and therefore that when the board of county commissioners exercises political power or legislative power, or administrative power, or discretionary power, or purely ministerial power, no appeal will lie.”

See, also, Taubman v. Board of Com'rs, 14 S. D. 206, 84 N. W. 784;Board of Com'rs v. C., M. & St. P. Ry. Co., 26 S. D. 57, 127 N. W. 728; Re Sorenson Drainage Ditch, 27 S. D. 342, 131 N. W. 300;State ex rel. Cook v. Board of Com'rs, 29 S. D. 358, 137 N. W. 354; Re Yankton-Clay County Drainage Ditch, 30 S. D. 79, 137 N. W. 608;Hoyt v. Hughes Co., 32 S. D. 117, 142 N. W. 471;Yankton County v. Board of Com'rs, 46 S. D. 245, 192 N. W. 179; and County of Codington v. Board of Com'rs, 47 S. D. 520, 199 N. W. 594.

[1] The selection of an architect to plan and supervise the construction of a public building is not the exercise of quasi judicial power, but is an administrative act. In Kraus v. Board of Com'rs, 39 Ind. App. 624, 80 N. E. 544, the court said:

“Appellee, the board of commissioners of the county of Miami, on December 18, 1905, entered into a contract, in writing, with Lehman & Schmitt, architects, for the preparation of plans and specifications for a courthouse in said county, and the superintendence of the construction thereof. Appellant, as a taxpayer and aggrieved thereby, filed his affidavit and bond for an appeal to the Miami Circuit Court from said action of said board, under section 7859, Burns' 1901, section 5772, R. S. 1881. The cause was transferred from the Miami circuit court to the Cass circuit court, and there, upon motion of appellee, the appeal was dismissed. This ruling of the court on the motion to dismiss is assigned as error.

The action of the board in entering into said contract with Lehman & Schmitt was an administrative act, and not a decision from which an appeal will lie under said section. Board, etc., v. Davis (1894) 136 Ind. 503 22 L. R. A. 515;Moffit v. State ex rel. (1872) 40 Ind. 217;Farley v. Board, etc. (1891) 126 Ind. 468 ;Platter v. Board, etc. (1885) 103 Ind. 360 ;O'Boyle v. Shannon (1881) 80 Ind. 159;Good v. Burk (1906) 167 Ind. 462 ;Potts v. Bennett (1894) 140 Ind. 71 . This being true, the motion to dismiss the appeal was properly sustained.”

The selection of an architect is, or should...