Lyman County v. Board of Commissioners

• Decision Date: 02 April 1901
• Citation: 85 N.W. 597,14 S.D. 341
• Parties: LYMAN COUNTY, Plaintiff and respondent, v. BOARD OF COMMISSIONERS OF LYMAN COUNTY, Defendant and appellant.
• Court: South Dakota Supreme Court

14 S.D. 341, 85 N.W. 597 (1901)

LYMAN COUNTY,

Plaintiff and respondent,

v.BOARD OF COMMISSIONERS OF LYMAN COUNTY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Aurora County, SD

Hon. Frank B. Smith, Judge

Dismissed.

I. N. Auld and S. H. Wright

Attorneys for appellants.

John G. Bartine

Attorneys for respondent.

Opinion filed April 2, 1901

HANEY, J.

One Isaac Dirks, presented a claim to the commissioners of Lyman county for certain services performed by him for the county, upon which the sum of $90 was allowed. Upon the following written demand, the state’s attorney attempted to appeal from the decision of the board to the circuit court:

“State of South Dakota, county of Lyman. In the matter of the allowance of $90 for fixing up of Auditor’s Books. Whereas, the board of county commissioners of Lyman county did on the 7th day of September, 1897, allow Isaac Dirks the sum of $90 for correcting the 1896 tax lists, and whereas, we believe said work to be worth not to exceed fifteen dollars, we hereby request and demand the state’s attorney of Lyman county, S. D., to appeal from the said action of said board allowing $90 for that work, to the circuit court in and for said county. [Signed.] Fred V. Hotchkiss, Jay Wellman, Klaus Finstad, T. B. Strong, R. Sehnert, K. Muller, C. W. Burrows.”

The notice of appeal appears to have been served upon one member of the board, but not upon the claimant. The cause was docketed in the circuit court with the same title it bears in this court. When the matter was called for trial in the circuit court, the commissioners moved to dismiss the appeal for the reason that it did not appear upon the face of the demand upon the state’s attorney that the persons whose names were subscribed thereto were taxpayers. This motion was denied, a motion to direct a verdict in favor of the commissioners was also denied, and the jury found that Dirks’ services were reasonably worth $45. A judgment having been rendered wherein the commissioners were directed to issue a warrant for $45 upon the surrender of the warrant for $90 previously ordered, and an application for a new trial having been denied, the commissioners appealed to this court.

In order to understand the features of this peculiar proceeding, it is deemed advisable to set forth the following provisions of the statute at length (Comp. Laws.):

“Section 610. From all decisions of the board of commissioners upon matters properly before them, there shall be allowed an appeal to the district court by any person aggrieved, upon filing a bond with sufficient penalty, and one or more sureties to be approved by the county clerk, conditioned that the appellant will prosecute his or her appeal without delay, and pay all costs that he or she may be adjudged to pay in the said district court; said bonds shall be executed to the county and may be sued in the name of the county upon breach of any condition therein; provided that any district attorney upon the written demand of at least seven taxpayers of the county, shall take an appeal from any action of the board of county commissioners of any county within his district when said action relates to the interests or affairs of the county at large or any portion thereof, in the name of the proper county, when he deems it to the interest of the county to do so; and in such case no bond shall be required or given, and upon serving the notice provided for in Section 611, the county clerk shall proceed the same as if a bond had been filed, and his fees for making the transcript shall be paid as other claims by the county.

“Sec. 611. Said appeal shall be taken within twenty days after the decision of said hoard, by serving a written notice on one of the board of county commissioners; and the county clerk shall, upon the filing of the bond and the payment of his fees allowed by this chapter, as hereinafter provided, make out a complete transcript of the proceedings of said board relating to the matter of their decision thereon, and shall deliver the same to the clerk of the district court.

“Sec. 612. Said appeal shall be filed by the first day of the district court next after such appeal, and said cause shall stand for trial at such term.

“Sec. 613. All appeals thus taken to the district court shall be docketed as other causes pending therein, and the same shall be heard and determined de novo.

“Sec. 614. The district court must make a final judgment and cause the same to be executed, or may send the same back to the board with an order how...