Rex Twp. v. Bailey Twp.
| Decision Date | 19 November 1929 |
| Docket Number | 6019 |
| Citation | 227 N.W. 488,56 S.D. 119 |
| Parties | REX TOWNSHIP, LYMAN COUNTY, SD, Respondent, v. BAILEY TOWNSHIP, LYMAN COUNTY, SD Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lyman County, SD
#6019—Affirmed
M. Q. Sharpe, Kennebec, SD
Attorneys for Appellant.
Brown & Brown, Chamberlain, SD
Attorneys for Respondent.
Opinion Filed Nov 19, 1929
A complete statement of the issues on this appeal was given in the former opinion of this court, reported in 54 SD 307, 223 N.W. 200. They may be summarized thus: In April, 1922, Rex township, which had been organized for about 15 years as a civil township of Lyman county, was subdivided into Rex township and Bailey township. It had an outstanding indebtedness of $2,400 and owned some personal property consisting largely of road scrapers. The board of adjustment appointed under authority of section 6039, Rev. Code 1919, found that the assessed valuation of Bailey township was $403,723 and of Rex township $603,354, and on that ratio apportioned the indebtedness, charging Bailey township with $960 and Rex township $1,440. The personal property was equitably apportioned by giving specific items to each township. This division was made. Rex township paid the entire indebtedness of $2,400 and called upon Bailey township for reimbursement of $960. Upon the refusal of Bailey township to make reimbursement, suit was brought therefor.
In the answer of Bailey township, it was alleged that, while the board of adjustment had signed and filed a report adjusting the indebtedness as above stated, said report did not truthfully set forth the actual determination of the board of adjustment. The answer alleged: “Said board of adjustment by mutual agreement, determined that they would ascertain the proportion which the assessed valuation of the plaintiff bore to the assessed valuation of the defendant, and make a report dividing all of the indebtedness on that basis, but with the specific understanding that the Board of Supervisors of the plaintiff and the defendant assemble in a joint meeting and adjust the road and bridge indebtedness upon a basis of each township being chargeable for the work and material furnished within its boundaries, but by oversight or mistake in drafting the said adjusters’ report, this latter provision was omitted from said report as signed and filed and set forth in ... plaintiff’s complaint, and said report is therefore incomplete and incorrect and is not in fact the true determination and adjustment made by the board of adjustment.”
This appeal is from the order sustaining a demurrer to such answer.
The authority of the board of adjustment is stated in section 6039, Rev. Code 1919, in the following language:
“Such board shall have power to determine and declare what portion of the bonded or other indebtedness of the original township shall be assumed and paid by each of the new townships so organized, and also to ascertain and determine what sum either of such new townships shall pay to the other on account of school buildings or other public improvements which such township may have received prior to and retained on such division, and also to make a just and equitable division of all money or other property belonging to such original township at the time of such division.”
The statute then proceeds to prescribe the basis of such adjustment in the following language:
“All such divisions and adjustments shall be made, as near as may be, on the basis of the assessed valuation of property in each of such townships, as determined by the assessor for the year preceding such division, and on the value of such school buildings and other property at the time of such division of such townships. “
Did the board of adjustment, however inadvertently, adjust the indebtedness according to law? Certainly it was made on the basis of assessed valuation. Bailey township contends, however, that, during the 15 years of existence of old Rex township, at least 90 per cent of the money raised by taxation was expended for roads and bridges in what is now the new Rex township, and that, during the year preceding the division, more than 80 per cent of the funds raised from taxation were expended for roads and bridges within the new Rex township; that, had the indebtedness been apportioned in accordance with the actual, though unexpressed, intention of the board of adjustment, Bailey township would not have been required to pay to exceed $480. Assuming that roads and bridges are “other property” within the meaning of section 6039, it is apparent that Bailey township is not attempting to have their value “at the time of such division of such township” used as a basis of adjustment, but instead seeks to use as a basis of adjustment the respective amounts expended. In appellant’s brief, the contention is advanced that the adjusters decided to have the warrant register canvassed and to have each township assume and pay for the recent road work done within its boundaries. While this would reduce the period of investigation from the approximately 15 years of old Rex township’s existence down to the period beginning with the oldest outstanding warrant and ending with the latest outstanding warrant, it would still not use as the basis of adjustment the “value” of such roads and bridges “at the time of such division of such township.”
But is it right to assume that roads and bridges are such “other property” as forms one of the bases of adjustment under section 6039? Counsel for Rex township takes the position that under no circumstances can roads and bridges be considered property of such a kind as is used as a basis of adjustment between townships. Counsel admits that they are public improvements, but not the kind of public improvements contemplated by section 6039. Counsel contends that the property intended to be considered by the statute is property of such a nature that its benefits inure solely to one or the other of the two townships, that is, property in which one or the other township may be said to have a proprietary interest; that roads and bridges are not property of this kind, because any resident of the other township has just as much right to use them as does a resident of the township where they are located. In support of these contentions, counsel cites State ex rel. Montrail County v. Amundson, 1118; State ex rel. Foster v. Ritch, 49 Mont. 155, 140 P. 731; State ex rel. Judith Basin County v. Poland, 61 Mont. 600, 203 P. 352.
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