State ex rel. Gosch v. Lemler

• Decision Date: 02 August 1957
• Docket Number: No. 9616,9616
• Parties: The STATE of South Dakota on the relation of Frank GOSCH, Jr., Plaintiff and Appellant, v. John LEMLER, Ervin Rischel, Reinhold E. Moser, John F. Hand and Othiol Turner, County Commissioners; Ervin E. Dupper, State's Attorney, and Henry F. Perman, County Auditor of Walworth County, South Dakota, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 418

84 N.W.2d 418

77 S.D. 23

The STATE of South Dakota on the relation of Frank GOSCH Jr., Plaintiff and Appellant, v. John LEMLER, Ervin Rischel, Reinhold E. Moser, John F. Hand and Othiol Turner, County Commissioners; Ervin E. Dupper State's Attorney, and Henry F. Perman, County Auditor of Walworth County, South Dakota, Defendants and Respondents.

No. 9616.

Supreme Court of South Dakota.

Aug. 2, 1957.

Arend F. Lakeman, Mobridge, for plaintiff-appellant.

Fred J. Homeyer, Selby, Ervin E. Dupper, Mobridge, for defendants-respondents.

ROBERTS, Judge.

This is a certiorari proceeding to review the action of the Board of County Commissioners at its meeting on January 24, 1956, as to its manner of dividing Walworth County into commissioner districts. Written demand was made by thirty-nine taxpayers of the county upon the State's Attorney to take an appeal from the action of the board. Upon the failure of the State's Attorney to comply with the demand, one of the petitioners instituted the present proceeding. The defendants are members of the Board of County Commissioners, the State's Attorney and County Auditor. Trial was had and judgment was entered sustaining the action of the board. Petitioner has appealed.

Counsel for appellant contends that the county board failed to comply with certain statutory requirements in redistricting the county; that there is an unjustifiable disparity in the population of the various districts; and that the districts are not as regular and compact as is practicable.

SDC 12.0608 requires a board of county commissioners every four years to change the boundaries of 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.' To redistrict in accordance with the provisions of this section, 'no voting precinct shall be divided; no incorporated city shall be divided into more than two commissioner districts; in counties having only three commissioner districts, no city nor town shall comprise more than one commissioner district; in no case shall any one commissioner district in a county having five commissioner districts embrace an area of more than one-half of the area of any county.'

The voting populations after redistricting were as follows: 1st district 511; 2nd district 430; 3rd district 657; 4th district 841; and 5th district 672. As a result of the redistricting the City of Mobridge containing more than two-fifths of the voting population of the county was divided into two districts, the 4th and 5th. It is conceded that this complies with statutory requirements and no issue arises as to these two districts. Wee Codington County v. Board of Com'rs of Codington County, 47 S.D. 520, 199 N.W. 594. A plan of redistricting together with a map showing bundaries of proposed districts was submitted to the county board by certain protesting taxpayers. Under this plan the three districts outside of the City of Mobridge according to the number of votes cast at the last general election prior to the meeting of the board had voting populations of 615, 576 and 407.

The statute in question was considered by this court in State ex rel. Cook v. Richards, 61 S.D. 28, 245 N.W. 901, 906, wherein we said: 'It is perfectly plain that the question of how a county shall be divided into commissioner districts is primarily a political and administrative matter for the legislative branch of government rather than the judicial, just as is the division of the state into counties or into legislative districts. The Legislature, however, in intrusting the division of counties to the boards of county commissioners, has seen fit to provide by section 5864, R.C.1919 (SDC 12.0608), that the commissioners in establishing such...