State ex rel Olson v. Tarr

• Decision Date: 18 April 1933
• Docket Number: 7538
• Citation: 61 S.D. 218,248 N.W. 200
• Parties: STATE OF SOUTH DAKOTA ex rel OLE N. OLSON, Respondent, v. E.B. TARR, M.T. Branam, and B.W. Bailey, County Commissioners of Gregory County, Appellants.
• Court: South Dakota Supreme Court

61 S.D. 218

248 N.W. 200

STATE OF SOUTH DAKOTA ex rel OLE N. OLSON, Respondent,

v.

E.B. TARR, M.T. Branam, and B.W. Bailey, County Commissioners of Gregory County, Appellants. South Dakota Supreme Court Appeal from Circuit Court, Gregory County, SD Hon. John G. Bartine, Judge #7538—Reversed Edward Prchal, State’s Attorney, Burke, SD A.H. Orvis, Yankton, SD Charles A. Davis, Burke, SD Attorneys for Appellants. W.J. Hooper, Gregory, SD Geo. A. Buffington, Dallas, SD Attorneys for Respondent. Opinion Filed Apr 18, 1933

CAMPBELL, Judge.

In November, 1932, Gregory County, S.D., consisted of five commissioner districts. The duly elected, qualified, and acting commissioners were as follows: First district, E.B. Tarr, term expiring January, 1935; second district, T.B. Olson, term expiring January, 1933; third district, Ole N. Olson, term expiring January, 1935 ; fourth district, M.T. Branam, term expiring January, 1933; fifth district, B.W. Bailey, term expiring January, 1935.

At the November, 1932, general election, John F. Kaspar was elected commissioner from the second district to succeed T.B. Olson for the term January, 1933, to January, 1937, and M.T. Branam was elected commissioner from the fourth district to succeed himself for the term January, 1933, to January, 1937. At the same November, 1932, general election, the electors of Gregory County voted by a large majority in favor of reducing the number of county commissioners from five to three, which question had been submitted to them pursuant to the provisions of section 5862, Rev. Code 1919.

The result of the November, 1932, general election having been duly ascertained, the board of county commissioners of Gregory County met within thirty days thereafter, and on December 6, 1932, undertook the redistricting of said county to the end that there should henceforth be three districts in lieu of five.

The commissioners created and established the boundaries of what we will call for purposes of distinctive reference new district number one. This embraced all of old district number two, all of old district number one, excepting one township, and one township of old district number four. Within the territory created as new district number one was the residence of Mr. Tarr, commissioner of old district number one, T.B. Olson, commissioner of old district number two, and J.F. Kasper, elected in November, 1932, to succeed T.B. Olson as commissioner of old district number two.

They created new district number two, which included about one township of old district number one, about two and one-half townships of old district number three, all of old district number four, excepting the one township embraced in new district number one, and two townships formerly in old district number five. Within the territory created as new district number two was the residence of M.T. Branam, commissioner of old district number four who had been re-elected in November, 1932, to succeed himself as commissioner from the fourth district.

They created new district number three, consisting of all of old districts number three and five, excepting the four and one- half townships thereof embraced in new district number two. In the territory included in new district number three was the residence of Ole N. Olson, commissioner of old district number three, and B.W. Bailey, commissioner of old district number five. No fault is found in this proceeding with the redistricting so far as boundaries or territory are concerned.

We have then this situation. Tarr, commissioner from old district number one, term expiring in 1935, resides in new district number one, as do likewise T.B. Olson, commissioner from old district number two, term expiring in 1933, and Kaspar, elected to succeed T.B. Olson as commissioner for old district number two for the term 1933 to 1937. The only commissioner residing in new district number two is Branam, who was commissioner of the old fourth district for the term expiring January, 1933, and who was re-elected in November, 1932, to succeed himself for the further period of four years. Ole N. Olson, commissioner of the old third district for a term expiring in 1935, and B.W. Bailey, commissioner of the old fifth district for a term expiring in 1935, both reside in new district number three.

In connection with and as part of the redistricting thus undertaken on December 6, 1932, the old board of county commissioners purported to name and designate the commissioners who should thenceforth represent the three newly created districts. They designated as commissioner for new district number one, Tarr, commissioner of old district number one; for new district number two, Branam, commissioner of old district number four; and for new district number three, Bailey, commissioner of old district number five, omitting entirely T.B. Olson, commissioner of old district number two (and Kaspar, his successor), and Ole N. Olson, commissioner of old district number three and plantiff herein.

Under these circumstances, plaintiff Ole N. Olson secured from the circuit court of Gregory County an alternative writ of mandamus requiring the defendants to recognize relator as a duly qualified county commissioner of Gregory County, and to designate the new commissioner district which he should represent, and allow him to perform the duties of the office. Defendants moved to quash the alternative writ and, said motion being denied, elected to stand thereon rather than answer to the writ, whereupon the peremptory writ issued recognizing the division of Gregory County into three districts in lieu of five as accomplished by the county commissioners in December, 1932, holding, in substance, that the commissioners to represent the three new districts should be the commissioners from old districts number one, two, and three; to wit, Tarr, T.B. Olson (or Kaspar, his successor) and Ole N. Olson, and requiring the old board of five members to reconvene forthwith and designate which of the three new districts should thenceforth be represented by Tarr, formerly representing old district number one, Kaspar, successor to T.B. Olson, formerly representing old district number two, and Ole N. Olson, the plaintiff, formerly representing old district number three. From the judgment of the court awarding the peremptory writ the defendants have appealed.

The controversy between the parties involves a question of statutory construction. It is the position of respondent, and was the view of the learned trial judge, that when the electors voted to reduce the number of districts from five to three the commissioners who had represented districts number four and five were automatically eliminated from office, and that it was the duty of the board to redistrict the county into three districts and allot such districts to the commissioners who had formerly represented districts one, two, and three when there were five districts. It is the contention of appellants, on the other hand, that when the electors voted to reduce the number of districts from five to three it was the duty of the old board of five commissioners to meet within thirty days, divide the county into three districts, determine what two of their members should cease to function, and assign the other three to the three new districts.

The solution of this controversy requires, of course, an examination of applicable statutes. There has been provision in our law since territorial days (sections 576, 577, Comp. Laws Dak. 1887) for increasing the number of commissioners from three to five. Not long after the division of the territory North Dakota made provision for reduction of the number of commissioners from five to three when desired by the electors of the county. No such effort was made in South Dakota, however, until 1917. By that time the North Dakota law upon the subject had crystallized into sections 3260, 3261, Comp. Laws North Dakota 1913, reading as follows:

“The number of county commissioners of any county may be increased to five or reduced to three in the manner following whenever the legal voters of the county, equal in number to twenty percent of the legal votes cast at the preceding general election, petition the board of county commissioners for an increase or decrease in the number of county commissioners, said board shall submit the question to a vote of the electors of the county at a special election to be held either at the next state primary election, or general election, as the petition may pray. Notice of the submission of such question shall be given in the notice of election prescribed by section 982. If the petition is for an increase in the number of commissioners, the proposition shall be submitted in this form:

“‘For five commissioners.’

“‘Against five commissioners.’

“If it is for reduction, the proposition shall be in this form:

“‘For three commissioners.’

“‘Against three commissioners.’”

“When the returns of such election show a majority of all the legal votes cast to be for an increase from three to five, it shall be the duty of the board of county commissioners, within ten days after the votes have been canvassed, to divide the county into five districts. The districts shall be numbered from one to five, those last created being designated Fourth and fifth, respectively. At the ensuing general election commissioners for such additional districts shall be elected, the commissioner for the fourth district for a term of two years, and the commissioner for the fifth district for a term of four years. The tenure of office of the existing board of county commissioners shall not be affected. The district which each commissioner shall represent shall be designated by such board. When the special election results in a majority for a decrease of from five to three the existing county board shall, at the end of the first two expiring terms of the same year, declare such...