Renville State Bank v. Kinsberg
| Decision Date | 08 March 1918 |
| Docket Number | 4227. |
| Citation | 166 N.W. 643,40 S.D. 191 |
| Parties | RENVILLE STATE BANK v. KINSBERG, County Auditor, et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Sanborn County; Frank B. Smith, Judge.
Mandamus by the Renville State Bank against John Kinsberg and others as County Auditor, County Treasurer, and Board of County Commissioners, of Sanborn County. Judgment for plaintiff, and defendants appeal. Modified and affirmed.
Null & Royhl, of Huron, for appellants.
Van Slyke & Bartlett, of Aberdeen, and L. D. Barnard, of Renville, Minn., for respondent.
The plaintiff, who is respondent in this court, instituted this action in mandamus to compel the appellants, as defendants to certify a money assessment of benefits in relation to a drainage district established under the statutes of this state. There was a trial to the court of the issues, and findings and judgment were in favor of plaintiff, and defendants appeal.
It appears from the record that petition was filed therefor and a drainage district, known as drainage district No. 21 of Sanborn county, established, and that a contract was let to Pence & Pier to construct the drain, which contract to Pence & Pier was thereafter assigned and transferred to the Woonsocket Drainage Company; that the board of county commissioners of Sanborn county thereafter issued to said Woonsocket Drainage Company, for services performed by it in constructing said drain, warrants to the amount of about $8,000, which warrants were in substantially the following form:
Said warrants were signed by the chairman of the county board and countersigned by the county auditor, and bore the seal of Sanborn county. Nearly $8,000, face value, of such warrants were assigned, transferred, and delivered by said Woonsocket Drainage Company to respondent, who became and now is the owner thereof. It also appears that such warrants were so issued and delivered to said Woonsocket Drainage Company prior to the completion of said drain; that no money assessment for benefits has ever been certified by the board of county commissioners to the county treasurer for collection for the purpose of creating a fund with which to pay said warrants; and that, although requested to certify such assessment, the board of county commissioners have refused and neglected so to do.
At the opening of the trial defendants moved to quash the petition and alternative writ upon the ground that the alternative writ was improvidently granted, and particularly that said writ was not issued upon affidavit, and that the facts stated in the petition were not sufficient to entitle plaintiff to the relief sought. Defendants now assign as error the overruling of said motion. It is first urged that the writ was not issued upon affidavit. We are of the opinion that the petition, which was sworn to under oath, should be treated as an affidavit for the purposes of this action. A written declaration, properly sworn to, may constitute an affidavit, even though in the form of an ordinary pleading. Woods v. Pollard, 14 S.D. 44, 84 N.W. 214; State v. Peterson, 29 Wash. 571, 70 P. 71; 2 C. J. 318. We are also of the opinion that the petition stated facts sufficient to authorize the alternative writ.
It is also contended by appellants in this connection that the rights of the parties to this action should have been determined by a judgment of the court in an ordinary action and not in the first instance by mandamus. We are of the view that this contention is not tenable. As must be observed by a reading of chapter 134, Laws of 1907, chapter 102, Laws of 1909, the only method provided for the creation of a fund for the payment of such warrants is a money assessment for benefits certified by the board of county commissioners for collection to the county treasurer. Under this situation of affairs we are of the view that mandamus to compel such action on the part of the county board is an appropriate remedy. No judgment could be obtained against the county, as the county is not a party at all to such drainage procedure. No suit for money judgment could be maintained against the board of county commissioners or the individual members thereof, as they were acting merely in an official capacity. Neither could any action be maintained against the county treasurer to pay such warrants without a special fund first having been created for that purpose. We are therefore of the view that mandamus was an available and an appropriate remedy under the circumstances of this case. The following decisions fully sustain this proposition: Reed v. Helie et al., 19 N.D. 801, 124 N.W. 1127; Osborn v. Selectmen of Lenox, 2 Allen (Mass.) 207; People v. Mead, 24 N.Y. 114; State v. Bollinger Co. Court, 48 Mo. 475; People v. Marsh, 21 A.D. 88, 47 N.Y.S. 395; State v. Seattle, 42 Wash. 370, 85 P. 11; Himmelmann v. Cofran, 36 Cal. 411; People ex rel. v. Pontiac, 185 Ill. 437, 56 N.E. 1114; Conway v. Chicago, 237 Ill. 128, 86 N.E. 619; Chicago Library v. Arnold, 60 Ill.App. 328; German Bank v. Spokane, 17 Wash. 315, 49 P. 542, 38 L. R. A. 259; Union Trust Co. v. State, 154 Cal. 716, 99 P. 183, 24 L. R. A. (N. S.) 1111; Redmon et al. v. Chacey, 7 N. D. 231, 73 N.W. 1081.
It is also contended by appellants that there was no competent evidence tending to support the finding that said drainage ditch had been constructed substantially according to the terms and specifications of the contract and that the same had been practically completed at the time the injunction action was instituted; said injunction action having been instituted long before the commencement of this action. This contention brings up for consideration the question and necessity of the completion of the drainage ditch as a condition precedent to respondent's right to maintain this mandamus proceeding. Under the provisions of the statute the board of county commissioners are authorized to make assessments prior to the completion and during the progress of the construction of a drain, as in their discretion they may determine; the statute also provides that if the contractors are required and agree to take warrants for their services, which was done in this instance, assessments need not be made until the completion of the work. Under these provisions of the statute it is contended that inasmuch as the work of constructing the drain has never been completed and inasmuch as it was a discretionary matter on the part of the county board whether or not assessments should be made prior to the completion of the contract work, the board of county commissioners have never been placed in a position where it was their legal duty under the statute to certify an assessment to the county...
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