State ex rel. Widdoss v. Esmay
| Decision Date | 30 June 1948 |
| Docket Number | 8989. |
| Citation | 33 N.W.2d 280,72 S.D. 270 |
| Parties | STATE ex rel. WIDDOSS et al. v. ESMAY, County Auditor et al. |
| Court | South Dakota Supreme Court |
Smiley & Clark, of Belle Fourche, for appellants.
Lem Overpeck, State's Atty., Butte County, of Belle Fourche for respondents.
By resolutions reciting respectively that there is in the treasury of Butte County the amount of $43,600 in the sinking fund, and the amount of $30,800 in the sinking fund interest fund 'in excess of the amount necessary to pay all obligations, claims, or contemplated expenditures against said fund, including all interest which may accrue on and the principal of the outstanding bonds,' and the amount of $31,600 in the permanent school fund land fund, 'and the purpose for which this fund was created has been fully subserved, there remains no further use for such balance for the purpose for which it was created,' the Board of County Commissioners authorized the transfer of the named amounts from these respective funds to the county road fund. Upon advice from the attorney general, the auditor and treasurer of the county refused to complete or recognize the transfers. Thereupon the plaintiffs, describing themselves as residents, freeholders and taxpayers of the county, applied for an alternative writ of mandamus requiring them to make the described transfers or to show cause for their failure so to do. The answer of the defendant county officers alleges that the transfers are prohibited by SDC 57.0505 Chapter 322, Laws of 1945. The trial court sustained this defense and entered judgment denying plaintiffs' application. The plaintiffs have appealed.
The sole question presented for our consideration is whether SDC 57.0505 Ch. 322, Laws of 1945, limits the amount of expenditures as well as the levies by the county for county road purposes.
As amended by Ch. 322, Laws of 1945, the pertinent portion of SDC 57.0505 reads as follows:
'(4) For county roads, in addition to the road taxes levied by the several civil townships, cities, and incorporated towns, not to exceed three mills on the dollar of the assessed valuation of all taxable property within the county, including organized civil townships, cities, and incorporated towns, and it shall have the entire supervision of the expenditure of such taxes and it may levy a higher rate, not to exceed five mills on the dollar, if it shall have been directed to do so by a majority of all of the electors of the county.'
In asserting the competency of the board of commissioners to make these transfers, the plaintiffs place reliance upon the grant of power contained in SDC 12.1904, and in SDC 12.2016.
SDC 12.1904 reads as follows:
'Whenever there remains in the treasury of any county an unexpended balance of any special fund, and all claims against such fund have been fully paid, and the purpose for which it was created has been fully subserved, and there remains no further use for such balance for the purpose for which it was created, it shall be lawful for the board of county commissioners to transfer such balance to any other fund of the county or subdivision to which such balance belongs.'
SDC 12.2016 reads as follows:
'The board of county commissioners may transfer the surplus moneys that may be on ...
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State v. Feyereisen, 14109
...of the offense. And this Court cannot and should not amend a statute to avoid or produce a particular result. See State v. Esmay, 72 S.D. 270, 33 N.W.2d 280 (1948). II. Jury instruction number 12 You are instructed that Chief of Police Paul Schueth was acting within the scope of his authori......