State v. Knudtson
| Decision Date | 24 November 1937 |
| Docket Number | 8128 |
| Citation | 276 N.W. 150,65 S.D. 547 |
| Parties | STATE OF SOUTH DAKOTA, ex rel., J. H. BOTTUM, Jr., Director of Taxation of the State of South Dakota, Plaintiff, v. W. T. KNUDTSON, County Auditor for Minnehaha County, (Ole M. Gunderson, Intervenor) |
| Court | South Dakota Supreme Court |
This is an original proceeding in this court in which a writ of mandamus is sought against W. T. Knudtson as county auditor of Minnehaha county. Under the provisions of chapter 254, Laws 1937, it is made the duty of the state board of equalization annually to levy a tax of two mills for rural credit purposes upon the assessed valuation of all taxable property within the state, except the homestead as defined by law. Plaintiff claiming that a homestead is limited as to value instituted this proceeding for the purpose of compelling the extending of the two-mill levy against the amounts in excess of the alleged statutory limitation. Ole M. Gunderson intervened in this proceeding alleging that he is the owner of 160 acres of land in Minnehaha county occupied by him and his family as a homestead and that the assessed valuation of this tract of land including structures is $9,300 and praying that the application for writ of mandamus be denied. The plaintiff has interposed demurrers to the petition in intervention and the answer of the defendant county auditor.
During the same session of the Legislature a statute exempting homesteads from any tax imposed by the Legislature to defray the expenses of the state or to pay any deficiency and providing the manner of listing the same for taxation was enacted. Chapter 209, Laws 1937. This statute, as in the act providing for a rural credit tax, refers to “the homestead’ as defined by law.” The homestead right depends entirely upon constitutional and statutory provisions and we must look to those provisions to determine what that term or designation means. Bailly v. Farmers’ State Bank of Sisseton, 150 N.W. 942. The Constitution of this state, section 4, article 21, directs that “the right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws, exempting from forced sale a homestead, the value of which shall be limited and defined by law, to all heads of families, and a reasonable amount of personal property, the kind and value of which to be fixed by general laws.” Under the provisions of section 456, Rev. Code 1919, “the homestead must embrace the house used as a home by the owner.” Under section 457, Rev. Code 1919, the homestead “must not embrace more than one dwelling house or any other buildings except such as are properly appurtenant to the homestead as such; but a shop, store or other buildings situated thereon and really used or occupied by the owner in the prosecution of his own ordinary business may be deemed appurtenant to such homestead.” A homestead may contain one or more lots or tracts of land with the buildings thereon, but under the provisions of section 458, Rev. Code. 1919, the homestead “must in no case embrace different lots and tracts unless they are contiguous, or unless they are habitually and in good faith used as part of the same homestead.” Section 459, Rev. Code 1919, reads;
“The homestead as created, defined and limited by law,” under the provisions of section 323, Code of Civil Procedure 1877, was exempt “from attachment or mesne process and from levy and sale on execution, and from any other final process issued from any court.” By amendment of this section, chapter 86, Laws 1890, there came into existence for the first time a limitation of value to. apply in favor of creditors. Subdivision 7, section 2658, Rev. Code 1919, had its origin in that statute. It reads in part as follows “The homestead, as defined and limited in title 1, to be selected by the debtor, his agent or attorney; provided, if, in the opinion...
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