Elfring v. Paterson

• Decision Date: 20 April 1939
• Docket Number: 8295.
• Citation: 285 N.W. 443,66 S.D. 458
• Parties: ELFRING v. PATERSON et al.
• Court: South Dakota Supreme Court

285 N.W. 443

66 S.D. 458

ELFRING v. PATERSON et al.

No. 8295.

Supreme Court of South Dakota

April 20, 1939

Appeal from Circuit Court, Codington County; Vern G. Wohlheter Judge.

Action by John Elfring, a resident and taxpayer of Codington County against James A. Paterson and others to enjoin defendants as Board of County Commissioners, Auditor and Treasurer, from issuing bonds to fund the floating indebtedness of Codington County. From a judgment dismissing the complaint, the plaintiff appeals.

Affirmed.

A. C Campbell, of Frederick, and George H. Fletcher, of Aberdeen, for appellant.

Alan L. Austin and Perry F. Loucks, both of Watertown, for respondents.

ROBERTS Judge.

Plaintiff, a resident and taxpayer of Codington County, brought this action to enjoin defendant board of county commissioners, auditor and treasurer, from issuing bonds to fund the floating indebtedness of Codington County.

Defendants answered, admitting that they were negotiating for the sale of bonds in the amount of one hundred thousand dollars to fund the floating indebtedness of the county under the provisions of Chapter 22, Laws 1939. The lower court entered judgment dismissing the complaint and from this judgment plaintiff has appealed to this court.

The statute involved in the consideration of this case was originally enacted as Section 19 of Chapter 79, Laws 1927, known as the County Budget Law. This Section provided that the floating indebtedness of the county could be retired either by "issuing bonds" or "by levying taxes sufficient to pay such floating indebtedness with interest." This statute read in part as follows:

"The Board of County Commissioners of each county having, at the close of the fiscal year ending December 31, 1927, a floating indebtedness consisting of subsisting outstanding warrants drawn against any fund or funds, * * * and being without sufficient money in any such fund or funds with which to pay the same, must provide for the payment of such floating indebtedness, or so much thereof as is in excess of the moneys in such fund or funds applicable to the payment thereof, by one of the two following methods: (a) Funding the same by issuing funding bonds and selling or exchanging the same * * * (b) by levying taxes sufficient to pay such floating indebtedness with interest thereon; provided, however, that the Board of County Commissioners may levy a tax or taxes during the year commencing January 1st, 1928, in an amount sufficient to pay the whole of such floating indebtedness with the interest thereon, or such Board of County Commissioners may levy in each year, during the fiscal year commencing January 1st, 1928, a tax or taxes in an amount sufficient to pay at least fifteen per cent (15%) of such floating indebtedness with interest thereon, in each fiscal year, but such taxes must be levied in such amounts as will be sufficient to fully pay the whole of such floating indebtedness with the interest thereon before the 1st day of January, 1935."

Chapter 110, Laws 1931, amended this Section by changing "December 31, 1927" to "December 31, 1930" and "January 1st, 1928" to "January 1, 1931". The italics above indicate where these changes occurred. The statute was similarly amended by Chapter 2, Special Session of 1936, Chapter 77, Laws 1937, and Section 12.2017 SDC1939, extending the time within which the floating indebtedness of a county could be funded. Chapter 22, Laws 1939, enacted with an emergency clause provides that the board of county commissioners of each county having "at the close of the fiscal year ending December 31, 1939, a floating indebtedness" may retire the same in the manner provided in the original act. Under the provisions of subdivision (b) boards of county commissioners may levy taxes to pay the floating indebtedness, "commencing January 1, 1939".

Defendants contend that it was plainly the intention of the legislature to authorize a board of county commissioners of a county having "at the close of the fiscal year ending December 31, 1938, a floating indebtedness" to fund the same by issuing bonds; that the insertion of "December 31, 1939", in the enrolled bill is a mere clerical or typographical error; and that this error or mistake should not be permitted to defeat the clear intention of the legislature.

An examination of the printed bill certified to by the secretary of the senate and filed in the office of the secretary of state shows that the date "December 31, 1938", was in the bill as introduced and defendants assert that it does not appear from the journals of the senate and house that this date was changed by amendment. It is insisted, however, by plaintiff that the enrolled bill is conclusive evidence as to the correctness of it contents and cannot be impeached by the certified copy of the printed bill and legislative journals, citing Narregang v. Brown County, 14 S.D. 357, 85 N.W. 602; State ex rel. Lavin v. Bacon, 14 S.D. 394, 85 N.W. 605; Krakowski v. Waskey, 33 S.D. 335, 145 N.W. 566; State ex rel. Graber v. Schmidt, 42 S.D. 294, 173 N.W. 951; In re Opinion of the Judges, 43 S.D. 648, 180 N.W. 957.

In construing statutes the intention of the legislature must be ascertained, if possible, and, when once ascertained, it will be given effect, even though it may be inconsistent with the strict letter of the statute. State ex rel. Cook v. Polley, 30 S.D. 528, 139 N.W. 118. It may be conceded that it is the general rule that courts may not strike out and insert other words or numerals in a statute. The rule, however, is not without well defined exceptions. The scope of judicial interpretation and the caution necessarily exercised in order to carry out the legislative purpose are clearly stated by the court in Commonwealth v. Barney, 115 Ky. 475, 74 S.W. 181, 184:

"It is for the Legislature to choose its subjects, and its own mode of expression. It is for the court to interpret the language employed so as to carry into effect the legislative purpose, so far as it may not be unquestionably at variance with the Constitution. It may be said that the work of interpretation must be confined to the construction of the words of the act. But that manifestly falls short of the true office of the courts. The Legislature has used certain language to express its purpose. It is the purpose, then, that must be sought for. It will be presumed at the beginning of such an inquiry that the language used will probably best show that purpose. But if it undoubtedly does not, then to stop further

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