Stuart v. Kirley

• Decision Date: 22 November 1899
• Citation: 81 N.W. 147,12 S.D. 245
• Parties: STUART et al. v. KIRLEY et al.
• Court: South Dakota Supreme Court

81 N.W. 147

12 S.D. 245

STUART et al. v. KIRLEY et al.

Supreme Court of South Dakota

November 22, 1899

Appeal from circuit court, Hughes county; Loring E. Gaffy, Judge.

Action by James Stuart and others against Joseph Kirley and others. From an order denying an injunction to restrain defendants from giving notice of the submission of the question of a change of county boundaries, plaintiffs appealed. Affirmed.

Thomas Drake, Joseph Donahue, and Chas. E. De Land, for appellants. John A. Holmes, Ivan W. Goodner, and Royal B. Stearns, for respondents.

CORSON P. J.

This is an action by the plaintiffs, as residents, property holders and taxpayers of the unorganized counties of Nowlin Sterling, and Jackson, against the defendants Kirley McGarry, and Hayes, as members of and constituting the board of county commissioners of Stanley county, and Frost, as county auditor of said county, and the defendant Stanley county, to obtain an injunction enjoining and restraining said board from giving notice that the question of changing and defining the boundaries of said Stanley county would be submitted to the electors of Stanley county at the general election to be held in said county November 8, 1898, and enjoining defendant Frost, as such auditor, from preparing or sending out to the election officers, for use at said election, poll books, etc., with forms for the returns of the electors of said Stanley county upon the question of changing and defining the boundaries of the same, and from preparing ballots for use at said election in which shall be printed or inserted any question as to the change of the boundaries of Stanley county. The defendants, by answer, admitted substantially all of the material allegations of the complaint. Upon the complaint and answer an order to show cause was issued, and on the hearing the court denied the injunction, and from this order plaintiffs appealed to this court.

It appears from the complaint that the board of county commissioners of Stanley county and its county auditor were proceeding under the provisions of chapter 41 of the Laws of 1897, which provides that (section 1): "At the general election in 1898 the question of changing and defining the boundaries of Stanley county as hereinafter provided in this act shall be submitted to the voters of Stanley county, and if a majority of the votes cast in the said county of Stanley shall be in favor of changing and defining the boundary lines of said Stanley county as in this act hereinafter provided, then the boundaries of said Stanley county shall be made as in this act hereinafter provided, and shall include all the territory that shall be included in the boundaries hereinafter stated." Section 2 provides that the board of county commissioners of Stanley county shall give due notice that the question of changing and defining the boundaries of said county will be submitted to the voters of said county. Section 3 defines the boundaries of said Stanley county in case the proposed change in the boundary shall be adopted by the voters of said county. Section 4 provides what records shall be kept in said Stanley county. The unorganized counties of Nowlin, Sterling, and Jackson are not, in terms, mentioned in the act, but it is alleged in the complaint that the proposed new boundaries of Stanley county would embrace and include all the territory embraced and included within the boundaries of said unorganized counties. Counsel for respondents have presented a number of preliminary objections to this proceeding, but, in view of the fact that the important question involved in this case, namely, the constitutionality of the act referred to, was fully discussed by respective counsel in their oral arguments and in their printed briefs, we have concluded to consider and decide this case upon its merits, without expressing or indicating any opinion on the preliminary questions presented.

It is contended by the appellants that the law above referred to under which the proceedings sought to be enjoined were being had, is in conflict with section 1, art. 9, of the constitution of this state, and therefore unconstitutional and void, for the following reasons: (1) The law in question is not a general law, applicable to all counties of the state. (2) The question of the change in the boundaries was not proposed to be submitted to the electors of the unorganized counties of Nowlin, Sterling, and Jackson, but only to the electors of Stanley county. (3) The title of the act is not sufficient to include the submitting of the question to the electors of Stanley county. (4) There was no provision in the law for an adjustment of the outstanding indebtedness of Stanley, Nowlin, Sterling, and Jackson counties. The section of the constitution referred to reads as follows: "The legislature shall provide by general law for organizing new counties, locating the county seats thereof and changing county lines; but no new counties shall be organized so as to include an area of less than twenty-four congressional townships, as near as may be without dividing a township or fractional township, nor shall the boundaries of any organized county be changed so as to reduce the same to a less area than above specified. All changes in county boundaries in counties already organized, before taking effect, shall be submitted to the electors of the county or counties to be affected thereby, at the next general election thereafter and be adopted by a majority of the votes cast in each county at such election. Counties now organized shall remain as they are unless changed according to the above provisions." Section 1, art. 9, Const. S.D. It will be observed that this section, in effect, provides for two classes of cases. In the first part provision is made for organizing new counties, locating the county seats thereof, changing county lines, and defining the area of such new counties, and prohibiting the legislature from changing the boundaries of organized counties so as to reduce the same to a less area than therein specified. The second part of the section refers to changes in county boundaries in counties already organized, and provides that, before taking effect, such changes shall be submitted to the electors of the county or counties to be affected thereby. In this case it appears from the complaint that neither of the counties Nowlin, Sterling, nor Jackson was an organized county, hence neither of these counties comes within the second clause of the section above quoted. It is too well settled to require the citation of authorities that counties are local subdivisions of the state for governmental purposes, created by the sovereign power of the state, without the consent or concurrent action of the people who inhabit them, and their boundaries may be modified or changed by the legislature, unless prohibited by some constitutional provision. When, therefore, the legislature is restrained from changing the boundaries of counties already organized, unless the question of changing such boundary shall be submitted to the electors of the county or counties to be affected thereby, it necessarily follows that the boundaries of unorganized counties are left to be changed by the legislature without the question of such change of boundaries being submitted to the residents of such unorganized counties. It is also well settled that residents of such unorganized counties can exercise only such political rights as are conferred upon them by the legislature. There being no county...