Spencer v. Sully Co.

• Decision Date: 31 December 1887
• Citation: 4 Dak. 474,33 N.W. 97
• Parties: Spencer and others v. Sully Co.
• Court: South Dakota Supreme Court

33 N.W. 97

4 Dak. 474

Spencer and others

v.Sully Co.

Supreme Court of the Territory of Dakota.

1887.

Appeal from district court, Sully county.Charles Butts and Coe T. Crawford, for appellants. Thomas J. Goddard, for respondent.

MCCONNELL, J.

This was begun by summons, as an original action in the district court. Appellants were plaintiffs below, and claim in the complaint that the respondent, an organized county in this territory, is indebted to them, on a contract obligation, in the sum of $1,350. It appearing, from the pleadings, that the claim sued on had been presented before the board of commissioners of the county, and payment demanded, and that the board had refused to allow the claim, the district court, on motion of respondent's counsel, dismissed the action; holding that the district court had no jurisdiction, and that plaintiffs' only remedy lay in appeal from the order of the board of commissioners disallowing their claim. The action of the district court in ordering the cause to be dismissed is assigned as error, and is properly before us for review.

An organized county in this territory is “a body corporate.” As such it may sue and be sued, plead and be impleaded, in any court of the territory. Pol. Code, § 13, c. 21. The decision of the learned court below affixes to this section of the statute an important limitation. By holding that what, at common law, (conceding respondent to be a body corporate,) would have been an ordinary action ex contractu, is defeated by the fact that, prior to the beginning of the action, the plaintiffs' claim had been adversely passed upon by the board of commissioners of the defendant county, the learned court holds, in effect, that the decisions of boards of county commissioners in this territory, given upon claims against their respective counties, may be pleaded in bar of subsequent action on such claims with the force and effect of a final judgment between the same parties, upon the same matter, rendered by a court of competent jurisdiction.

If this holding be correct, then boards of county commissioners in Dakota have judicial powers; and the liability to be sued in any court of the territory means only an indirect liability, by way of appeal from the decisions of such boards, as elsewhere provided in the statutes,-unless the construction intimated by the court in Brady v. Supervisors New York, 10 N. Y. 260, should be adopted to the effect that “claims for the malfeasance of county officers, and claims for torts, for which a county may be liable,” are not proper subjects for the action of the commissioners, but should go directly into the courts.

In construing sections 87, 88, 89, and 90 of chapter 112 of the Session Laws of 1883; sections 46, 47, 48, 49, and 50, of chapter 21 of the Political Code; chapter 5 of the Session Laws of 1883, so far as amendatory of said section 46,-being the statutory law cited and relied upon by respondent in support of the decision below,-we shall be aided by considering the constitutional inhibitions pertinent thereto; for the legislature is never presumed to have intended a violation of the constitution, and of possible or doubtful meanings that one is adopted by the courts which does not violate the constitution.

Could the legislature, then, of Dakota, have constitutionally vested in boards of county commissioners judicial powers? The authorities from state courts, cited by counsel, have little pertinency. In these authorities there is no question as to the constitutional powers of state legislatures to vest such boards with judicial powers. The sole question is as to the legislative intent; and the highest courts of New York and Nebraska are particularly emphatic to the effect that such boards in those states have judicial powers. Brady v. Supervisors, etc., supra; Martin v. Board Sup'rs, 29 N. Y. 645;Brown v. Otoe Co., 6 Neb. 111.

Section 1907 of the Revised Statutes of the United States, which is a part of our organic act or constitution, provides that “the judicial power in Dakota *** shall be vested in a supreme court, district courts, probate courts, and in justices of the peace.” It would seem that this language is too plain and simple to cast any doubt upon the proposition that no judicial power can be constitutionally vested in this territory except in the courts mentioned. “The judicial power in Dakota” cannot be construed to mean only some of the judicial power in Dakota, without a violation of the fundamental laws of thought.

The decision of the learned trial judge was doubtless based upon a doubt as to the power recognized by him in the commissioners being a judicial power. Upon this it may be said, briefly, that we know things only by their attributes; and if to the action of the county board the essential attributes of res adjudicata be conceded, ( vide supra,) it follows that the power they assumed to exercise in the given case is a judicial power. If to this it be objected that such action could not have the attributes of a final judgment, except through the failure or refusal of the claimant to pursue the statutory remedy of appeal, it may be replied that this is neither more nor less than may be said of any court from whose orders and judgments an appeal will lie.

Counsel for respondent argues that boards of county commissioners in this territory can and do constitutionally have judicial powers,-enumerating as such the power to try school township officers for neglect of duty or malfeasance in office, and to oust them if found guilty, (Laws 1883, c. 44, § 101;) and the power to punish contempts, and enforce, by attachment or other compulsory process, all orders made, (Pol. Code, c. 21, § 23.)

Without discussing the nature or validity of these powers, we may remark that judicial power is but one of the powers or forms of sovereignty. This is not the place for the enumeration of such powers. A county, however, as “a body politic for civil and...