State ex rel. Andrews v. Boyden

• Decision Date: 11 August 1906
• Citation: 108 N.W. 897,21 S.D. 6
• Parties: STATE ex rel. v. BOYDEN, County Com'r, et al. ANDREWS
• Court: South Dakota Supreme Court

108 N.W. 897

21 S.D. 6

STATE ex rel. ANDREWS v. BOYDEN, County Com'r, et al.

Supreme Court of South Dakota

August 11, 1906

Appeal from Circuit Court, Charles Mix County.

Mandamus by the state, on the relation of T. E. Andrews, to compel O L. Boyden and others, as county commissioners of Charles Mix county, and the board of county commissioners of such county and another, as county auditor, to submit the question of changing the county seat at a general election. From a judgment dismissing the application, relator appeals. Affirmed.

G. P Harben, for appellant.

French & Orvis, for respondents.

HANEY J.

This is an appeal by the relator from a judgment dismissing his application for a peremptory writ of mandamus commanding the defendants, as county commissioners, to submit the question of changing the location of the county seat at the general election of 1904. The facts as found by the circuit court are substantially as follows: On January 4, 1904, T. E. Andrews presented a petition to the board at its regular session signed by 1,528 persons, asking to move the county seat from Wheeler to Platte, and for an order submitting the proposition at the next general election. On the same day J W. Lindsay filed a statement and asked for time in which purported signers of the Platte petition might be heard. Such statement was sworn to and stated that a large number had signed the Platte petition under a misapprehension of facts, giving particulars wherein they had been misled and the names of the signers so misled. Such statement also alleged upon information and belief that a large number of the signers of such petition, more than enough to reduce the number below a majority of the voters of the county, were induced to sign it by reason of false and fraudulent representations made by the persons circulating the same. It also contained the allegation that several hundred signers of such petition had already signed a petition to the board, asking and demanding that their names be withdrawn from the Platte petition, and that a large number of other persons who had signed it would also petition to have their names withdrawn therefrom, because of such false and fraudulent representations. It was thereupon agreed by and between the board, the representatives of Platte, and the representatives of Geddes, that before the board would act upon such petition, Lindsay and Ward, representatives of Geddes, would be given an opportunity to prove the allegations of the above-mentioned statement. On January 6th the board proceeded to examine the Platte petition and found the same to be signed by 1,523 men, of which number 1,506 were found to be legal voters of the county, and the board also determined that 1,506 signers of such petition constituted a majority of all the legal voters of the county, but this last finding was omitted from its record. Thereupon the representatives of Platte demanded that the board make an order as prayed in their petition, which was refused as not in accordance with the agreement to postpone action until Lindsay and Ward should have an opportunity to be heard, and thereupon the board directed notice to be served on Lindsay and Ward that they would be heard at 1 o'clock p. m. on January 7th. Further proceedings having been suspended by reason of a temporary injunction, which was subsequently dissolved, on January 13th, an agreement was reached between parties representing Platte and Geddes that those representing the latter should on the following day file their withdrawals from the Platte petition and that the board would take no action whatever until January 21st, at 1 o'clock p.m. On January 14th, a remonstrance against granting the Platte petition, signed by 573 voters of the county, who previously had signed the Platte petition, was filed with the county auditor, the board being then in session, in which it was stated that the persons signing such remonstrance withdrew their names from the Platte petition, and at the same time a petition purporting to be signed by 1,804 legal voters of the county, asking for the removal of the county seat from Wheeler to Geddes and for an order submitting the proposition at the next general election, was filed. On the same day another similar remonstrance and withdrawal, signed by six voters who previously had signed the Platte petition, was filed.

On January 20th, the circuit court issued an alternative writ of mandamus commanding the board to grant the Platte petition or show cause on February 5th why it had not done so. This writ and the affidavit on which it was based were silent as to the aforesaid remonstrances and withdrawals. It was served January 21st, on which day the following motion was made and carried: "That board obey the order of E. G. Smith judge of the circuit court, and the petition of T. E. Andrews and others, for removal of the county seat from Wheeler to town of Platte, be granted, and county auditor be instructed to at the proper time have the necessary ballots prepared to submit this proposition to the voters of this county, at the next general election.' On January 26th, a writ of certiorari was issued by the circuit court commanding the board and auditor to certify and return all proceedings of the board concerning the removal of the county seat from Wheeler to Platte; all proceedings in regard to the petition for removal of the county seat from Wheeler to Geddes; and all papers filed and proceedings had prior to and including January 22d. Return to this writ having been made on March 25th, the circuit court rendered its judgment annulling, vacating, and setting aside the order of the board granting the Platte petition and remanding all matters connected therewith to the board for such further proceedings as might be proper and regular under the authority of the board. Thereafter, on April 7th, the Platte petition was again considered by the board, together with all withdrawals therefrom, and it was found and determined that such petition, not counting withdrawals, then contained the names of 1,566 voters, 60 of these having been filed April 5th, and that 514 persons who had previously signed such petition had withdrawn therefrom, leaving the names of only...