Lewis v. Brown Co. Comm.

• Decision Date: 21 March 1921
• Docket Number: 4789
• Citation: 44 S.D. 4,182 N.W. 311
• Parties: VINCENT C. LEWIS, Plaintiff and appellant, v. BOARD OF COUNTY COMMISSIONERS OF BROWN COUNTY, SOUTH DAKOTA, Defendants and respondents.
• Court: South Dakota Supreme Court

44 S.D. 4

182 N.W. 311

VINCENT C. LEWIS, Plaintiff and appellant,

v.

BOARD OF COUNTY COMMISSIONERS OF BROWN COUNTY, SOUTH DAKOTA, Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. Frank Anderson, Judge #4789--Reversed Amos N. Goodman Attorneys for Appellant. R. F. Williamson, State's Attorney Attorneys for Respondents. Opinion filed March 21, 1921

POLLEY, P. J.

The defendants in this action are the members of the board of county commissioners of Brown county. At the regular January, 1920, meeting said board designated the Brown County Journal as one of the official newspapers of said county for the year 1920. Plaintiff, who is the owner, editor, and publisher of said newspaper, accepted the appointment, and said newspaper, became and was one of the official newspapers of said county and continued to be such until the 2d day of June, 1920, when said board at an adjourned April meeting, without any notice to plaintiff, adopted a resolution as follows:

"Whereas, the Brown County Journal, heretofore designated as one of the county official newspapers has expressed dissatisfaction with said arrangement, be it resolved that the designation of said paper as an official paper be and is rescinded and canceled, and in lieu thereof be it further resolved that the Claremont New Era be and hereby is designated as an official paper from and after the date hereof."

Plaintiff, claiming that the board of county commissioners was without authority to act upon the matter of designating official newspapers or to cancel the designation of plaintiff's paper and fill the vacancy caused by such cancellation at the above named time, sued out by a writ of certiorari from the circuit court of Brown county directing the defendants to certify to said court all proceedings concerning the removal of said Brown County Journal from the office of official paper of said county and the appointment in lieu thereof of the Claremont New Era.

It is contended by respondents that certiorari is not appellant's proper remedy, that the order complained of by appellant is an appealable order, and that therefore certiorari does not lie.

Section 5886, Code 1919, provides that an appeal shall be allowed to the circuit court, by any person aggrieved, "from all decisions of the board of county commissioners upon matters properly before it." This does not allow appeals from all decisions of the board, but only from decisions upon matters properly before it, and it is the contention of appellant that the matter upon which the decision complained of was made was not properly before the board, and therefore is not appealable.

By section 2996, Code 1919, certiorari will lie when inferior tribunals have exceeded their jurisdiction and there is no appeal nor, in the judgment of the court, any...