Milne v. McKinnon

• Decision Date: 05 December 1913
• Citation: Milne v. McKinnon, 32 S. D. 627, 144 N. W. 117 (S.D. 1913)
• Parties: MILNE v. McKINNON et al. [d]
• Court: South Dakota Supreme Court

144 N.W. 117

32 S.D. 627

MILNE v. McKINNON et al. ^[d]

Supreme Court of South Dakota

December 5, 1913

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Suit by W. G. Milne against Thomas McKinnon and others, constituting the Board of County Commissioners of Minnehaha County, the County of Minnehaha, and Harry B. Benson as county treasurer. Judgment for defendants, and plaintiff appeals. Affirmed.

Polley J., dissenting.

Robertson & Dougherty, of Dell Rapids, for appellant.

Martin Bergh and Jones & Mathews, all of Sioux Falls, for respondents.

WHITING P. J.

This is an action in equity wherein plaintiff sought to restrain a sale of his real property in satisfaction of a special assessment made thereon under the provisions of chapter 134, Laws 1907, commonly known as the Drainage Act. Defendants demurred to the complaint, alleging as ground for such demurrer that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff appealed to this court from the order sustaining same.

Appellant contends: That his property not being "agricultural lands," and the law in question not authorizing an assessment against other property than "agricultural lands" (except highways and railroad rights of way) respondent board of commissioners acted wholly without jurisdiction in levying and returning an assessment for benefits against such lands; that the law provides but one method for the assessment of proportions of benefits, which method was not followed, so far as appellant's property was concerned, and could not be followed in the assessment of other than agricultural lands; that the law in question is unconstitutional in that it embraces subjects not expressed in the title.

Inasmuch as appellant does not question the regularity of any of the proceedings in connection with the establishment of the drainage system, construction of the ditches, ascertainment of damages and benefits, and the levy of the assessment (except as questioned under the contentions announced above) and it therefore stands conceded that proper petitions were presented and notices given to bring appellant's land within the proposed drainage district and to authorize the inclusion of such lands when the respondent board ascertained the proportion of benefits accruing thereto and assessed such lands for its share of the costs of establishing such drainage system, the jurisdiction of such board depended: First, upon whether such board had the power given it to determine whether the land in question was "agricultural land"; second, if not given such power, then upon whether such land was in fact "agricultural." The question of whether or not jurisdiction is given to the board to determine to what class a piece of land belongs, as to whether or not it is agricultural land, has not been presented by either party upon this appeal and we express no views thereon.

Respondents concede that no class of lands other than agricultural lands can be assessed, but they contend that the land in question was "agricultural." Starting from the premise that the land in question was agricultural, respondents contend that, if there was an excessive assessment levied thereon, appellant's sole remedy, no claim of fraud being made, was an appeal therefrom to the circuit court. If respondents' premise is correct, it is clear that their conclusion is; therefore we have for our determination, from the admission of the demurrer, but one question and that one of fact, Does it appear that the land is not "agricultural"? Unless the complaint states facts sufficient to show that said land is not "agricultural," the demurrer was rightfully sustained; it being incumbent upon appellant, before he shows himself entitled to the equitable relief sought, to allege facts sufficient to show the tax invalid.

The following appears from the complaint: The land in question and which seems to have been treated by the owner and by respondent board as...