State ex rel. Adkins v. Lien

• Decision Date: 28 October 1896
• Citation: 9 S.D. 297,68 N.W. 748
• Parties: STATE ex rel. ADKINS v. LIEN et al., County Com'rs.
• Court: South Dakota Supreme Court

9 S.D. 297

68 N.W. 748

STATE ex rel. ADKINS

v.LIEN et al., County Com'rs.

Supreme Court of South Dakota.

Oct. 28, 1896.

Original application by the state of South Dakota, on the relation of George Adkins, for a writ of mandamus to compel E. E. Lien and others, constituting the board of county commissioners of the county of Roberts, state of South Dakota, to submit the question of the location of the county seat of such county to the voters thereof, in conformity with the requirements of the constitution. Writ granted.D. C. & W. R. Thomas and Aikens, Bailey & Voorhees, for relator. Howard Babcock, State's Atty., and Mr. Crossfield, for defendants.

FULLER, J.

This original application for a writ of mandamus, made by the state, on the relation of George Adkins, is to compel the board of county commissioners of Roberts county to submit the question of the location of the county seat of said county to the voters thereof, in conformity with section 2 of article 9 of the constitution of this state, which will receive merited attention with reference to its application to the undisputed facts presented, which, as the record stands, must be treated as verities. To the petition of the relator the defendants demurred, on the following grounds: “(1) That the application upon which the writ is issued and based does not show that the person making the same is properly interested. (2) That the application upon its face does not state facts sufficient to warrant the issuance of the writ. (3) That the application does not upon its face show that the necessary steps were taken to require or demand that the board should act upon the petition presented. (4) That the act sought to be compelled cannot be compelled by this proceeding.” This demurrer was overruled, and, in the absence of a properly verified answer, the matter was heard and determined on the papers of the applicant, who is shown to be a citizen of the United States, and a resident, freeholder, taxpayer, and elector of said Roberts county. It further appears that by a special act of the territorial legislature passed and approved on the 9th day of March, 1885, said county seat was established at Wilmont, from which place it has never been removed; that said county is organized, and the county seat thereof has never been located by a majority vote; that, at least 60 days before the next general election, a petition signed by more than a majority of the legal voters of said county was presented to the board of county commissioners, requesting that the question of the location of the county seat be submitted to the qualified electors of said county at the next general election; and that notwithstanding said petition, and a subsequent demand duly made, said board refused, and still refuse, to submit said proposition in accordance with the constitutional provision above cited, which is as follows: “In countiesalready organized, where the county seat has not been located by a majority vote, it shall be the duty of the county board to submit the location of the county seat to the electors of said county at a general election. The place receiving a...