Hofer v. Board of County Com'rs of McCook County, 13762
| Decision Date | 19 January 1983 |
| Docket Number | No. 13762,13762 |
| Citation | 334 N.W.2d 507 |
| Parties | Roger HOFER, Plaintiff and Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF McCOOK COUNTY, State of South Dakota, and Walter Stevens, Chairman, Ralph Hetland, Orville Hofer, Terry Krantz, and William Nafziger, Defendants and Appellees. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Dale L. Strasser of Blue & Strasser, Freeman, for plaintiff and appellant.
Douglas R. Bleeker of Shandorf, Bleeker, Boldt & Koch, Mitchell, for defendants and appellees; Roger R. Gerlach, McCook County State's Atty., Salem, on brief.
This appeal arises from a referendum calling for a vote on a resolution adopted by appellees, McCook County Commissioners (Commissioners). Commissioners voted the resolution was not referable and appellant Roger Hofer (Hofer) brought this action in circuit court. Circuit court affirmed the Commissioners' actions and Hofer appeals. We reverse and remand.
On June 2, 1981, Commissioners adopted the following resolution:
BE IT RESOLVED that the Hanson Rural Water System, Incorporated, a Corporation shall be allowed and permitted to run a pipeline for transmitting water for domestic and livestock and for all other purposes for which said Corporation is formed along any and all right of ways between all sections in the county of McCook, state of South Dakota, so long as their transmission is buried so as not to interfere with building of any roads or causing any liability to the county.
BE IT FURTHER RESOLVED that the Hanson Rural Water System, Incorporated, a Corporation shall be responsible for all relocation costs and/or cost of repair to said waterline as a result of county highway construction. This resolution shall apply whether line is inadvertently or negligently damaged by the county of McCook during road maintenance or construction.
On July 7, 1981, sufficient referendum petitions calling for the submission of said resolution to the voters of McCook County for approval or rejection were filed with the county auditor. Commissioners, at a meeting held on July 8, 1981, voted that the action was not subject to a referendum since it was a ministerial act. Hofer appealed this decision of Commissioners by mailing a copy of the notice of appeal upon one of the Commissioners and the state's attorney on July 16, 1981. The circuit court held that Commissioners' action was not subject to a referendum since it was brought pursuant to SDCL 7-18A-15 which the court thereby found unconstitutional.
We first take note of the serious procedural error that has occurred in the proceedings below. SDCL 15-6-24(c) provides, in pertinent part:
When the constitutionality of an act of the Legislature affecting the public interest is drawn in question in any action to which the state or an officer, agency or employee of the state is not a party, the party asserting the unconstitutionality of the act shall notify the attorney general thereof within such time as to afford him the opportunity to intervene.
The Commissioners of McCook County do not fall within the category of "the state, or an officer, agency or employee of the state." Id. There could hardly be a clearer case for the necessity of intervention by the attorney general, the chief legal officer for the state. A local branch of government using taxpayers' funds was assailing an enactment of the state legislature. Defense of the legislative action was left to a private citizen. The record is barren of any notice to the attorney general in compliance with the statute and we cannot conceive that, had such notice been given, the attorney general would have failed to take action to intervene. We therefore hold that the attorney general had a right of intervention on behalf of the state, that absent the requisite notice or waiver by the attorney general the trial court below proceeded to judgment absent an indispensable party.
Because remand for rehearing without some direction would possibly produce the same result, we proceed to the merits of the constitutional issue.
Appellant Hofer acted under SDCL 7-18A-15 when he obtained the signatures to refer the Commissioners' resolution. This statute provides:
Any ordinance or resolution adopted by a board of county commissioners may be referred to a vote of the qualified voters of the county by the filing of a petition signed by a number of qualified voters equal to at least five per cent of the total votes cast for Governor in the county in the last gubernatorial election, except such ordinances and resolutions as may be necessary for the immediate preservation of the...
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