State ex rel. Clark v. Stakke

• Decision Date: 29 June 1908
• Citation: 22 S.D. 228,117 N.W. 129
• Parties: STATE OF SOUTH DAKOTA ex rel. S. W. Clark, Attorney General, Plaintiff, v. K. O. STAKKE et al., Members of the City Council of Woonsocket, and E. M. Newcomb, City Auditor. Defendant.
• Court: South Dakota Supreme Court

22 S.D. 228

117 N.W. 129

STATE OF SOUTH DAKOTA ex rel. S. W. Clark, Attorney General, Plaintiff,

v.

K. O. STAKKE et al., Members of the City Council of Woonsocket, and E. M. Newcomb, City Auditor. Defendant. South Dakota Supreme Court Original proceeding Writ of certiorari granted S. W. Clark, Attorney General Aubrey Lawrence Attorneys for plaintiff. L. L. Lawson, T. J. Spangler, and T. H. Null Attorneys for defendant. Opinion filed June 29, 1908

FULLER, J.

On the 3d day of June, 1908, a writ of certiorari directed to the city auditor and the respective members of the city council of Woonsocket, as the duly authorized board of canvassers for the last annual election held in that city, was granted on the Attorney General’s sworn application, which recites facts deemed sufficient to invoke the original jurisdiction of this court. Whether the action of such board of canvassers may be reviewed by certiorari is the principal jurisdictional question presented by a motion to quash the writ filed and taken under advisement concurrently with the return of the defendants.

In support of the contention that certiorari does not extend to the ministerial acts of a canvassing board, and can be directed only to judicial proceedings, numerous California decisions are cited, which we find to be governed by a statute expressly limiting such remedy to cases where jurisdiction has been exceeded by “an inferior tribunal, board or officer, exercising judicial functions,” and such was the prevailing rule at common law. Section 754 of our Revised Code of Civil Procedure is as follows: “A writ of certiorari may be granted by the Supreme and circuit courts, when inferior courts, officers, board or tribunals, have exceeded their jurisdiction, and there is no writ of error or appeal, nor, in the judgment of the court. any other plain, speedy and adequate remedy.” Section 760: “The review upon this writ cannot be extended further than to determine whether the inferior court, tribunal, board or officer, has regularly pursued the authority of such court, tribunal, board or officer.” In State ex rel. v. County Comm, Hughes County, 10 LRA 588 (1890), it was declared that “this statute is not only unlike the common law, but equally unlike the law of any other state, so far as we have had the means to pursue inquiry,” and it was there expressly held that the office of the writ is not confined to a review of judicial proceedings, but extends to the erroneous determination of a question of law in a matter concerning which no judicial function is exercised. There being no writ of error or appeal, nor any other plain, speedy, and adequate remedy, this decision, based on the provisions above quoted, amply justifies the granting of the writ, and we therefore proceed to examine the return of the defendants thereon for the purpose of determining whether their authority as a board of canvassers was pursued and exercised in a manner warranted by the statute.

From a duly authenticated transcript of the record returned by the defendants in obedience to the mandatory requirement of the writ, it appears that the question, “Shall intoxicating liquors be sold at retail?” was submitted to the legal voters at the annual election held in the city of Woonsocket on the 21st day of April, 1908, for the selection of municipal officers. The returns duly canvassed and abstracted by the defendants show that 275 legal votes were cast gat the election for the respective candidates for the office of mayor, and...