State v. Board of Comm's

• Decision Date: 01 February 1916
• Docket Number: 3876
• Citation: 156 N.W. 96,36 S.D. 606
• Parties: STATE OF SOUTH DAKOTA, Plaintiff, v. BOARD OF COMMISSIONERS OF EDMUNDS COUNTY, Defendant.
• Court: South Dakota Supreme Court

36 S.D. 606, 156 N.W. 96 (1916)

STATE OF SOUTH DAKOTA,

Plaintiff,

v. BOARD OF COMMISSIONERS OF EDMUNDS COUNTY,

Defendant.

South Dakota Supreme Court

Original proceeding

#3876--Writ issued

C. C. Caldwell, Attorney General

Byron S. Payne, Assistant Attorney General

Attorneys for the State.

Edward D. Barron, State's Attorney

Howard G. Fuller

Attorneys for Defendant.

Opinion filed February 1, 1916

GATES, J.

This is an original proceeding in mandamus to compel the defendant board to repay to the state the sum of $891.23 paid by the state for the per diem, and expenses of an assistant executive accountant of this state in making an examination and audit of the books and accounts of certain officers of Edmunds county. The essential facts as they appear from the application for the alternative writ, the return thereto, and admissions of counsel are here summarized. On or about July 1, 1913, pursuant to written requests from taxpayers and officials of said county, the Governor of this state, deeming an examination and audit of the books and accounts of said county necessary, directed the executive accountant or one of his assistants to make such examination. On July 10, 1913, defendant board resolved that such examination cover the period from January 1, 1911, to that date. During the months from July to November, 1913, inclusive, an assistant executive accountant examined and audited the books and accounts of the various officers of said county. In October, 1913, the Governor, deeming it necessary, required an additional examination and audit to be made for the year 1910 covering the office of the clerk of courts of said county, which was done. Prior to beginning such examinations the Governor fixed the per diem of assistant executive accountants at $6. For such examination the assistant executive accountant was paid at divers times out of the general fund of the state of South Dakota, pursuant to vouchers presented to and audited by the state auditor, sums aggregating $678 for per diem and $213.23 for expenses, making in the aggregate $891.23. Claims for said amount on behalf of the state, verified by the executive accountant, were presented to defendant board in the months of October and December, 1913, and the same were rejected by the board on January 9, 1914. The defendant board has made no levy out of which to pay said claims, and has no money in its hands from which the same can be paid. The alternative writ commanded the defendant board to pay said claim to the state treasurer, or, if without funds, to cause a levy therefor to be made, or to show cause, etc. The defendant board demurred to the affidavit upon the fourth and sixth grounds of section 121, C.C.P., and by its further showing raises certain other legal questions.

By its general demurrer the defendant board raises the question that, because the affidavit for the writ alleges that the board has not made a levy and has no money in its hands from which the claim can be paid, the affidavit does not state facts justifying the issuance of the writ, in that it is not also alleged that the levy would not be in excess of the constitutional debt limit of said county. We are of the opinion that the question as to whether the issuance of a warrant in payment of this claim would cause the constitutional debt limit of Edmunds county to be exceeded is a matter of defense, and not a matter required to be negatived in the affidavit for the writ. The cases cited are inapplicable. This claim is not a special indebtedness to be paid out of a special fund or for which a special levy must be made, but payment should be made by a warrant on the general fund of the county. It is a current expense that does not require a specific levy precedent to its payment. Section 13, c. 206, Laws 1913. So far as counties are concerned, it is only after the constitutional debt limit has been reached that current expenditures must be kept within the current tax levy or revenues for that year. Dring v. St. Lawrence Tp., 23 S.D. 624, 122 N.W. 664; Lawrence v. Meade Co., 10 S.D. 175, 72 N.W. 405; Atty. Gen.'s Opinions, 1913-14, p. 771.

Defendant next urges that there is a defect of parties plaintiff in that either the state treasurer or the assistant executive accountant is a necessary party plaintiff. Section 765, C.C.P., provides that the writ of mandamus must be issued "upon the application of the party beneficially interested." As will hereinafter appear, when the state has paid the claim of the assistant executive accountant, such officer has no further interest in it. The state treasurer, it is true, is the custodian of the funds of the state, but it is the state that is beneficially interested in recovering the amount of the claim from the county. Therefore the state is a proper party plaintiff and the only necessary party plaintiff.

It is next urged that there is a non-joinder of necessary parties defendant. It is first claimed that the members of the county board should have been made defendants by name "as the board of county commissioners of such county." Section 809, Pol. Code, designates these commissioners as the "board of county commissioners." Section 764, C.C.P., authorizes the writ to issue to a "board." We think it unimportant whether the members of the board are brought into the court merely as the "board of county commissioners" or by designating their names as the board of county commissioners. 24 Cyc. 414.

Neither is there any merit in the claim that the state board of equalization (now the state tax commission) is a necessary party. The claim of the state against the county is to be paid by warrant on the county treasurer. It is to be paid out of current revenue as a general claim against the county. No special levy for that particular purpose is contemplated or necessary.

The next four objections of defendant may be considered together. They are:

(1) "That there is no equity in plaintiff's cause, and the relief demanded should not be granted, for the reason that plaintiff has heretofore by uniform taxation throughout the state raised and collected to itself the full amount of moneys claimed to have been disbursed, as alleged, for the specific purpose mentioned in plaintiff's petition, and that plaintiff has been thereby paid the claim alleged to exist."

(2) "That the tax, the levy of which plaintiff seeks to compel, is for the purpose of general state interest and benefit, for the maintenance of a state office and institution in connection with a current expense in operation of state government, and can only be levied upon all property within the state by a rule of uniform taxation, and not upon the property in the county of Edmunds alone."

(3) "That all property in the county of Edmunds has already paid its share of the expense or claim mentioned in the petition in the levy or collection of those items recited in paragraph 42 of chapter 23, Session Laws 1913, being the General Appropriation Act of that year, and that the imposition of the tax prayed for would compel the property of Edmunds county to bear a second or double taxation for the same purpose."

(4) "That the assessed valuation of the property of Edmunds county in the sum of $17,544,752 bore to the assessed valuation of the property of the state of South Dakota, in the sum of $1,195,123,854 for the year 1913, 1.47 per cent., which represents the percentage in the sum of $220.50 which said Edmunds county paid to plaintiff in taxation for the year 1913 in contribution to the sum of $15,000 raised by the plaintiff state for the payment of salary and expenses of assistant executive accountants, and that in any event the respondent, defendant, should receive the offset and credit upon plaintiff's claim in said amount of $220.50."

There is no merit to any of these objections. In so far as the labors of the executive accountant and his assistants are confined to the examination of the accounts of state officials, such work is purely of state interest, and is paid for by the several counties in proportion to their assessed valuation by their payments of state taxes. In so far as such officers incur expense in the audit and examination of the accounts of county officials, their labors, while in a sense of state interest, are more particularly of county interest, and it is fair and right that the particular county should ultimately bear the expense, although as between the state and the officer it is paid for out of the state appropriation. It certainly is as much within the power of the Legislature to say that a county shall bear the expense of the examination of the accounts of its own officers as it is to compel it to bear the expense of maintaining law and order within its boundaries. It certainly would also have been within the power of the Legislature to have dispensed with the provision requiring repayment to the state of the expense of such examination if it had so elected. In State ex rel. Guilbert v. Shumate, 72 Ohio St. 487, 74 N.E. 588, the court, in considering the reimbursement features of the Ohio Accountant Act, said:

"The present act provides for entire uniformity of its operation, the charge for the maintenance of the bureau being upon all the counties of the state in proportion to their population, and that for the auditing being, as provided in the tenth section, the particular expense incurred by the bureau in each examination. The latter section appears to find ample justification in facts which may be presumed, if we may not take, notice of instances of their actual occurrence. In some of the counties of the state the public officers elected by the people are so efficient and scrupulous in the conduct of their affairs and in the keeping of their accounts that but little time is required and but little expense incurred in making the examinations by the bureau. Whatever may be the differences in this respect in the several counties of the state, they seem to be...