State ex rel Cook v. Richards

• Decision Date: 20 December 1932
• Docket Number: 7399
• Citation: 61 S.D. 28,245 N.W. 901
• Parties: STATE OF SOUTH DAKOTA ex rel ROY W. COOK, et al., Respondents, v. CLINTON G. RICHARDS, Appellant.
• Court: South Dakota Supreme Court

61 S.D. 28

245 N.W. 901

STATE OF SOUTH DAKOTA ex rel ROY W. COOK, et al., Respondents,

v.

CLINTON G. RICHARDS, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Lawrence County, SD Hon. James McNenny, Judge #7399—Affirmed Chambers Kellar, Lead, SD Attorney for Appellant. Francis J. Parker, Deadwood, SD Attorney for Respondents. John T. Heffron, Deadwood, SD Attorney for amicus curiae. Opinion Filed Dec 20, 1932

CAMPBELL, Presiding Judge.

Prior to 1932, Lawrence County, S.D., was divided into five commissioner districts; the first embracing the City of Deadwood and some outside territory, the second the City of Spearfish and some outside territory, the third a portion of the City of Lead with some outside territory, the fourth a portion of the City of Lead with some outside territory, and the fifth the towns of Nemo and Terry and some adjacent outside territory. At the regular meeting of the county commissioners in January, 1932, said commissioners undertook to redistrict the county pursuant to the requirements of section 5864, R.C. 1919, which reads as follows:

“It shall be the duty of the board of county commissioners, at its regular meeting in January, 1920, and every four years thereafter, after giving notice by publication for three weeks in the official papers of the county, to change the boundaries of the commissioner districts whenever such change shall be necessary in order that each district shall be as regular and compact in form as is practicable, and it shall so divide and redistrict its county that each district may contain as near as may be within one hundred of the same number of votes, as shown by the official returns of the votes cast at the last election held prior to the date of the meeting mentioned herein at which election state and county officials were elected; providing, in such redistricting, no voting precinct shall be divided; provided, also that no incorporated city shall be divided into more than two commissioner districts.”

Certain taxpayers of the county suggested to the county commissioners a proposed plan of redistricting as follows: The first district to consist of a portion of the City of Lead; the second district of the remainder of the City of Lead; the third district a portion of the City of Deadwood with certain adjacent territory; the fourth district the City of Spearfish and certain surrounding territory; and the fifth district the remainder of the City of Deadwood and certain adjacent territory. On that basis the votes of the respective districts proposed by the official returns at the last previous election would have been for the first district, 813; for the second district, 873; for the third district, 827; for the fourth district, 802; and for the fifth district, 792. The board of county commissioners failed to approve of said suggestion, however, and presently unanimously adopted a resolution for redistricting in the following form:

“The matter of redistricting Lawrence County, South Dakota into commissioner districts, having come on before the Board of Commissioners of Lawrence County, on due notice as by law required, upon the 12th day of January, 1932, and certain parties requesting a change in the boundaries of said district having appeared before said Board, and having been fully heard and the Board being full advised in the matter of the extent of the territory and the number of residents in each of said Commissioner districts now existing, on motion of Mr. Curran, seconded by Mr. Dixon, it is by the said Board of Commissioners, resolved:

“That the boundaries of the commissioner districts in Lawrence County, South Dakota, be established, so as to include in each of the several districts territory as follows;

District No. 1:

Central City ............................... 99

Deadwood,

1st Ward ......................... 98

2nd Ward ........................ 167

3rd Ward ........................ 236

4th Ward ........................ 333

Mountain Ranch ............. 12 945

District No. 2:

Hathaway ........................ 20

Crook City ...................... 11

Centennial ....................... 29

Crow Creek ..................... 42

Reeds ............................... 55

Spearfish ........................ 577

Spring Creek .................. 15

School District No. 57 .... 25

St. Onge ......................... 78

Upper False Bottom ....... 23

Whitewood ...................... 97 972

District No. 3:

Lead,

1st Ward .......................... 338

2nd Ward ......................... 197

3A Ward .......................... 278

3B Ward .......................... 173 986

District No. 4:

Lead,

4th Ward .................... ...... 162

5th Ward .................... ...... 274

6th Ward .................... ...... 264

Terraville ......................... 53

Golden Gate ..................... 16 769

District No. 5:

Terry ............................ 28

Cheyenne ...................... 9

Bear Gulch .................... 31

Elkhorn ......................... 14

Englewood ................... 19

Galena .......................... 17

Hanna ........................... 14

Mountain Meadow ........ 32

Nemo ........................... 149

Portland ........................ 30

Roubaix ....................... 39

Savoy ............................ 4

Underwood ................... 17

Pluma ........................... 22 425

Total ............................. 4,097 “In the selection of the above districts, the Board has given consideration to the question of administration and have chosen the districts with a view of giving proper representation to the various citizens of the County and to the Agricultural, Mining, Timbering and Commercial sections thereof.”

Thereafter some seventeen taxpayers of said county residing in Spearfish made written demand upon the state’s attorney of said county to take an appeal from the action of the board of county commissioners with reference to redistricting, such demand being made under that portion of section 5886, R.C. 1919, reading as follows:

“... Provided, that any states attorney, upon written demand of at least seven taxpayers of the county, shall take an appeal from any action of the board of county commissioners, when such action relates to the interests or affairs of the county at large or any portion thereof, in the name of the county, when he deems it to the interest of the county so to do; and in such case no bond shall be required or given, and upon serving the notice provided for in the following section the county auditor shall proceed the same as if a bond had been filed, and his fees for making the transcript shall be paid as other claims by the county.”

The state’s attorney, not deeming it to the interest of the county to take the appeal demanded by said taxpayers, notified them of his unwillingness to do so by the following letter addressed to them and their attorney:

“Gentlemen:

“I have carefully examined the petition requesting an appeal from the action of the Board of Commissioners changing the boundaries of the commissioner districts in Lawrence County, as contained in the resolution adopted on January 13, 1932, and examined the law and facts relative thereto.

“The law provides that the State’s attorney shall take an appeal upon the proper petition ‘when he deems it to the interest of the County so to do.’ The power thereby vested in the States Attorney is not a personal right to decide. whatever way he may wish, but is quasi-judicial and must be exercised in the light of and governed by the law and facts of the case.

“The law provides (section 5864) that when changing boundaries of commissioner districts, with certain exceptions not material here, two things are to be considered by the Commissioners. First, each district shall be as regular and compact in form as it is practicable; and second, each district shall contain as near as may be, within one hundred of the same number of votes. Under this statute our Supreme Court has held (Codington County v. Board of Comm., 199 NW 594) ‘that if an incorporated city should contain one-fifth the population it should constitute one district and have one commissioner. If such city should contain two-fifths of the population, it should comprise two districts, and have two commissioners.’ This rule was quoted with approval in a later case in the Supreme Court (State v. Scott,[572] ) and as a result of that decision the City of Sturgis, without other or additional territory, was established as one commissioner district and given one commissioner. Under the rule of law thus established the City of Lead is entitled to two commissioners and the City of Deadwood to one commissioner, Lead having more than two-fifths of the voting population and Deadwood having more than one-fifth the voting population. This leaves the balance of the population and territory in Lawrence County, including the town of Spearfish which is not affected by the above rule, it having considerably less than one-fifth the population of the county, to be divided as equitably as possible with due consideration for the compactness and regularity of districts and the number of votes therein contained.

“Large areas of this remaining territory are separated by impassable mountainous country. Different interests and needs exist, the chief industries in the southerly territory being mining and timbering, and the chief industries in the northerly territory being agricultural. It is practically impossible to divide this territory so that the districts will be compact and regular in form and yet have within one hundred of the same number of votes. Also it seems at this time that the territory to the south has much greater prospect of a considerable increase in population in the near future than that in the northerly part of the county.

“This being the situation, I do not believe the Board of Commissioners abused the discretion vested in them to district the county as they have, but...