Holmes v. Miller

• Decision Date: 15 July 1946
• Docket Number: 8836.
• Citation: 23 N.W.2d 794,71 S.D. 258
• Parties: HOLMES v. MILLER et al.
• Court: South Dakota Supreme Court

23 N.W.2d 794

71 S.D. 258

HOLMES v. MILLER et al.

No. 8836.

Supreme Court of South Dakota

July 15, 1946

Rehearing Denied Aug. 19, 1946.

N. E. Wanous, State's Atty., of Dupree, and Morrison & Skaug, of Mobridge, for appellants.

Stephens & Riter, of Pierre, for respondent.

RUDOLPH Presiding Judge.

The Board of County Commissioners of Ziebach County, purporting to act under the authority of Sec. 6, Ch. 25, Laws of 1939, as amended by Ch. 38, § 2, Laws of 1941, exchanged certain county owned land for land owned by one Mitchell. The respondent, Holmes, was in possession of the county land under a lease, and appealed from the action of the County Commissioners to the circuit court. The circuit court held that the action of the board in exchanging the land was unauthorized and the board has appealed to this court.

Two questions preliminary to the merits are presented. Appellant first contends that the act of the board in exchanging this land is of such a character that it cannot be reviewed on appeal. In support of this contention appellant cites and relies upon Pierre Water-Works Co. v. Hughes County, 5 Dak 145, 37 N.W. 733; Codington County v. Board of Commissioners of Codington County, 51 S.D. 131, 212 N.W. 626, 627. These cited cases hold in effect that the legislature may not through the guise of an appeal confer upon the courts powers which are purely administrative or executive, and that it is only when a Board of Commissioners acts in a quasi judicial capacity that its acts are subject to review on appeal. The rule announced in these cases is of long standing and based upon sound reason. Although announced in cases which related to the general appeal statute (SDC 12.0618) governing appeals from decisions of boards of county commissioners, the rule is equally applicable to Sec. 10, Ch. 25, Laws of 1939, which governs this appeal, and which provides that any decision of the board upon a matter pertaining to the said act is appealable. Our inquiry is, therefore, whether the act of the board in exchanging this land was in character purely administrative or executive, or was it a quasi judicial act. This court said in the Codington County case, supra, in pointing out the distinction in character between the acts of a County Board:

'It is clear that, if the circuit court had heard, without objection, the merits of the appeal, it could not have substituted its judgment for that of the board. * * * Its power could have been manifested only by affirming or vacating the action of the board; and this, it seems to us, marks the distinction between quasi judicial action on the one hand and administrative action on the other. If the action appealed from is quasi judicial, then the court on appeal can do what it finds the board should have done, but, if the action appealed from is not quasi judicial, then the court, upon appeal, cannot substitute its judgment for that of the board.'

Clearly the circuit court on appeal could not substitute its judgment for that of the board as to the wisdom of making the exchange. But involved in the appeal to the circuit court was the question of the validity of the exchange of land as made by the board. Was it within the power of the board to make the exchange, was a question before the court. The statute only authorizes the exchange of 'scattered and isolated tracts' of county land. The determination of whether the land involved was a 'scattered and isolated' tract was a fact question the determination of which depended upon investigation and evidence of some kind and is quasi judicial in character. Hoyt v. Hughes County, 32 S.D 117, 142 N.W. 471; Codington County v. Board of County Commissioners, 47 S.D. 520, 199 N.W. 594. If the land involved was not a 'scattered and isolated' tract, the action of the board was outside the authority granted by the statute and invalid; no question of the wisdom of the action would be involved under such circumstances, and the court could 'do what it finds the board should have done,' i. e., simply deny the exchange. We are convinced that the issue which presented to the circuit court the validity of the exchange as made by the board, was a judicial issue, and that court did not in passing upon such issue usurp non-judicial functions. When a board of county commissioners commits a wrong for which there is a remedy in law in some form, the broad and comprehensive terms of the appeal statute provide a simple and speedy way of getting such matters into court. Yankton County v. Board of County Commissioners et al., 46...