State ex rel. Jacobsen v. Hansen, 9448

• Decision Date: 02 February 1955
• Docket Number: No. 9448,9448
• Citation: 75 S.D. 476,68 N.W.2d 480
• Parties: STATE of South Dakota ex rel. Theo JACOBSEN, Plaintiff and Respondent, v. H. R. HANSEN, Herb Swedlund, and John Benda, as members of and constituting the Board of County Commissioners of Tripp County, South Dakota, a public Corporation, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 480

68 N.W.2d 480

75 S.D. 476

STATE of South Dakota ex rel. Theo JACOBSEN, Plaintiff and Respondent, v. H. R. HANSEN, Herb Swedlund, and John Benda, as members of and constituting the Board of County Commissioners of Tripp County, South Dakota, a public Corporation, Defendants and Appellants.

No. 9448.

Supreme Court of South Dakota.

Feb. 2, 1955.

J. L. Hannett, States Atty. of Tripp County, D. G. Grieves, Winner, G. F. Johnson, Gregory, M. Q. Sharpe, Kennebec, for defendants and appellants.

Parnell J. Donahue, Bonesteel, Lund & McCann, Brookings, for plaintiff and respondent.

ROBERTS, Judge.

Plaintiff applied to the circuit court for a writ of prohibition to restrain the defendant board of county commissioners from purchasing the Rosebud Community Hospital at Winner with proceeds from the sale of bonds. After hearing, the court sustained the claim that defendant board was acting in excess of authority conferred by statute and entered a decree accordingly. Defendants have appealed.

There is no dispute in the controlling facts. On October 14, 1952, there was presented to the board of county commissioners of Tripp County a petition signed by the required number of electors of the county who were named as owners of real property therein which asked that a county hospital be established and that bonds in the amount of $120,000 be issued. The county board adopted a resolution calling a special election to submit to the electors of the county the questions of establishing a county hospital and of issuing bonds 'for the purpose of procuring, establishing and maintaining' the same. It appears that the questions as stated in the resolution were submitted to the electors at the election held on November 4, 1952, and that a majority of the votes cast was in favor of establishing a hospital and of issuing bonds. The county board offered to purchase at a receivership sale the Rosebud Community Hospital and its equipment and supplies for $116,000 and the offer was accepted. Before the bonds were in fact issued and the transaction completed, the present action was instituted.

A county in this state is a creature of statute and has no inherent authority. It has only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted. Pearson v. Johnson, 59 S.D. 163, 238 N.W. 644; South Dakota Employers Protective Ass'n v. Poage, 65 S.D. 198, 272 N.W. 806; State ex rel. Bell v. Board of County Commissioners of Beadle County, 68 S.D. 237, 300 N.W. 832. As the representative of the county having general control over its property and the management of its business and fiscal affairs, SDC 12.0617, the county board can exercise authority in these respects only in so far as statutes confer power upon the county.

Defendant board contends that under the provisions of SDC 27.1901 authorizing a county to 'establish and maintain a county hospital' and to issue bonds 'for the purpose of purchasing a site for such hospital and for the erection, equipment, and maintenance thereof' it may purchase a hospital already constructed and use the proceeds from the sale of bonds for its payment; that the authority to 'establish and maintain' confers power to do anything necessary to provide a county with a hospital either by purchasing a site with a hospital as a part of it or otherwise acquiring a site and erecting a hospital. Plaintiff contends that a county may not issue bonds the proceeds of which are to be used for the purchase of a hospital already in existence; that the statute was enacted to enable a county not having adequate hospital facilities to obtain them by acquiring a site and building a new hospital.

It is necessary to an understanding of the contentions of the parties to have in mind the origin and history of certain portions of the statute relating to county hospitals. The statute, SDC 27.19, had its origin in Chap. 265, Laws 1909. By this statute, any county having the required population was authorized to 'establish and maintain a county hospital'. This statute amended by Chap. 110, Laws 1911, became Section 7694, R.C. 1919. This section was amended by Chap. 282, Laws 1919, and the legislature for the first time undertook specifically to authorize the issuance of bonds to provide for county hospitals and to enact comprehensive provisions for their control and management. This amendment provided that bonds could be issued 'for the purpose of purchasing a site for such hospital and for the erection, equipment and maintenance thereof'. The section referred to was again amended by Chap. 247, Laws 1923, but this amendment is immaterial to a decision herein. An amendment made by Chap. 210, Laws 1929, broadened the powers of the board of county commissioners. The legislature added to Section 7694, supra, sections 14 to 17, both inclusive. The first of these subsections read in part as follows: 'the board of county commissioners may provide for a sinking fund and may levy a tax to provide for a sinking fund from year to year * * * for the purpose of purchasing a site, erecting a hospital and equipping the same, and that when a sufficient amount has been raised for such purpose, the board may dispense with the issuance of bonds and may call a special election or submit the question at a general election as to whether or not a county hospital shall be purchased or erected and equipped for the purposes and under the conditions hereinbefore mentioned, and in such case the question of the issuance of bonds shall not be submitted to...