McDonald v. State

• Decision Date: 24 July 1972
• Docket Number: No. 11016,11016
• Parties: C. B. McDONALD, Plaintiff and Respondent, v. STATE of South Dakota et al., Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 583

199 N.W.2d 583

86 S.D. 570

C. B. McDONALD, Plaintiff and Respondent, v. STATE of South Dakota et al., Defendants and Appellants.

No. 11016.

Supreme Court of South Dakota.

July 24, 1972.

Gordon J. Mydland, Atty. Gen., Carl W. Quist, Highway Asst. Atty. Gen., William J. Srstka, Jr., Asst. Atty. Gen., Larry M. Von Wald, Sp. Asst. Atty. Gen., Pierre, for defendants and appellants.

Lynden D. Levitt, Rapid City, for plaintiff and respondent.

WOLLMAN, Judge.

This is an appeal from an order denying defendants' motion for a change of venue from the Seventh Judicial Circuit, Pennington County, South Dakota to the Sixth Judicial Circuit, Hughes County, South Dakota.

On June 23, 1971, the Circuit Court of Pennington County issued an alterantive writ of mandamus ordering the State of South Dakota and the individual defendants, who are public officers of the State of South Dakota, to disburse to the plaintiff, C. B. McDonald, all forms of compensation currently being withheld from him and to reinstate plaintiff in good standing as an employee of the Highway Right-of-Way Division of the South Dakota Department of Highways. The writ of mandamus was issued pursuant to the affidavit and application of plaintiff wherein he set forth taht since 1963 he had been employed by the South Dakota State Highway Department in the Highway Right-of-Way Division; that he had developed certain rights in and to his job classification, seniority, vacation and sick leave benefits, retirement benefits and the like; that at no time from the date of his employment to the date of the application had he ever tendered his resignation to any of the defendants and that at no time since the date of his employment had he ever received from any state officer or member or employee of the South Dakota Department of Highways a notice of termination, dismissal, or reduction in force that would require plaintiff to avail himself of any administrative procedures or remedy; that since April 30, 1971 the defendants had withheld all forms of compensation from plaintiff; that plaintiff was entitled to all veterans' preferences afforded by SDCL 3--3; and that plaintiff had no plain, speedy and adequate remedy in the ordinary course of law.

Defendants' motion for change of venue was based upon that portion of SDCL 15--5--2 which reads as follows:

'Actions for the following causes, or upon the following instruments, must be tried in the county where the cause, or some part thereof, arose, or the forfeiture was declared, subject to the power of the court to change the place of trial: * * *

(2) Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who, by his command or his aid, shall do anything touching the duties of such officer;'

The issue involved in this appeal is whether the cause of action or some part thereof arose in Pennington County or in Hughes County. Plaintiff argues that those acts that are required by South Dakota law to be done in Hughes County with respect to plaintiff's employment are merely of a mechnical nature and that the mechanical, or ministerial, act of drawing checks to the order of plaintiff in Hughes County should not control the venue of the action. He argues that these same checks must be endorsed by plaintiff in Pennington County and that the checks represent reimbursement for services rendered to the State of South Dakota by plaintiff in the course of his employment in and about Pennington County and that therefore the important part played by plaintiff in the performance of the mechanical acts performed by defendants establishes that the cause of action or some part thereof arose in Pennington County.

In the case of Meihak v. Schreckenghaust, 67 S.D. 603, 297 N.W. 122, this court was faced with the question of the proper venue of an alleged cause of action for false imprisonment against the sheriff and deputy sheriff of Meade County, South Dakota, who had allegedly arrested plaintiff in Meade County and later confined him in jail in Pennington County. In the course of holding that the action was properly venued in Pennington County because it was based in part upon the imprisonment in that county, the court stated that:

'The right conferred on a defendant to have the place of trial changed to the proper county is a substantial right, and the court has no discretion except to hear and grant an application based upon a ground which entitles a defendant to a change provided a timely demand and motion in due form are made. Smail v. Gilruth, 8 S.D. 287, 66 N.W. 452; Ivanusch v. Great Northern Ry. Co., 26 S.D 158, 128 N.W. 333; see, also Olson v. City of Sioux Falls, 63 S.D. 563, 262 N.W. 85, 103 A.L.R. 1022. * * *

'If a public officer be charged with 'an act done by him in virtue of his office,' the action must be tried in the county where the cause of action or some part thereof arose. The nature of an action, when the place of trial is in question, is determined by the allegations of the complaint. It sufficiently appears from the complaint that the acts complained of were committed by each of these defendants 'in virtue of his office."

Plaintiff argues that SDCL 21--33, Appeals from Administrative Agencies, is controlling in the instant case and that venue is governed by SDCL 21--33--7, which states in part:

'The venue of the appeal shall be as follows:

(1) If the appellant is a resident of this state, to the circuit court of the county of his residence or to the circuit court of Hughes county, as he may elect;'

We agree with defendants' contention that SDCL 21--33 is not applicable to this case inasmuch as plaintiff has not elected to proceed under the provisions of that chapter.

Because plaintiff did not elect to frame his action in the nature of an appeal under the provisions of SDCL 21--33, we need not consider whether it would have been proper for him to do so in the circumstances of this case. We have considered plaintiff's argument that he has been precluded from the possibility of determining whether administrative decisions have been made affecting his interests because of the nature of the conduct of the defendants in withholding his paychecks without notifying him that his employment had been terminated. Although it is not clear whether plaintiff intends by this argument to raise the specter of a calculated program of harassment by the defendants towards certain employees of the South Dakota Highway Department, we cannot on the face of this record assume or even infer that the withholding of plaintiff's paychecks was a carefully calculated plan to deny plaintiff an administrative remedy by way of appeal to the circuit court in the county of his residence.

Plaintiff argues that SDCL 15--5--2 is inapplicable in the instant case because a mandamus proceeding is not an 'action' but rather a special proceeding, citing the case of Mitchell National Bank v. Jones, 51 S.D. 202, 212 N.W. 919, 920, where the court said: 'It is undoubtedly true that mandamus is a 'special proceeding,' as distinguished from an 'action." However, the court went on to hold that an application for a writ of mandamus in the form of affidavit was sufficiently analogous to a complaint in a civil action to permit a defendant to move to quash the alternative writ because of the insufficiency of plaintiff's application upon any of the grounds and for any of the reasons which then authorized a defendant to demur to a complaint in a civil action. The court recognized the fact that the distinction between a motion to quash the alternative writ and a demurrer was a matter of nice practice and was of form rather than substance.

Our attention has not been directed to any statute that specifically controls venue in mandamus proceedings. It is interesting to note that SDCL 3--3--3, contained within the chapter which grants veterans certain preferential rights in public employment to which plaintiff claims he is entitled, states that:

'A refusal to allow said preference, or a reduction of the salary for said position with intent to bring about the resignation or discharge of the incumbent, shall entitle the applicant or incumbent, as the case may be, To maintain an action of mandamus to right the wrong.' (emphasis added)

In the absence of any specific statutory direction to the contrary, we conclude that although a mandamus proceeding is technically denominated a special proceeding rather than an action, Mitchell National Bank v. Jones, supra, McFarland v. Chicago, M. & St. P. Ry. Co., 51 S.D. 85, 212 N.W. 493, Smith v. Otter Tail Power Co., 80 S.D. 327, 123 N.W.2d 169, see also SDCL...