Taubman v. Board of Commissioners

• Decision Date: 31 December 1900
• Parties: THOMAS W. TAUBMAN, Plaintiff and appellant, v. BOARD OF COMMISSIONERS OF AURORA COUNTY, Defendant and respondent.
• Court: South Dakota Supreme Court

14 S.D. 206

84 N.W. 784

THOMAS W. TAUBMAN, Plaintiff and appellant, v. BOARD OF COMMISSIONERS OF AURORA COUNTY,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Aurora County, SD

Hon. Frank B. Smith, Judge

Affirmed

Grigsby, Wright & Grigsby

Attorneys for appellant.

H. C. Preston

Attorney for respondent.

Opinion filed December 31, 1900

[14 SD

CORSON, J.

This is an appeal by the plaintiff from a judgment entered in a mandamus proceeding dismissing the same. An alternative writ of mandamus was issued by the circuit court in and for Aurora county, upon an affidavit filed by the plaintiff herein. The facts set forth in the alternative writ may be stated as follows: That the plaintiff is a citizen, resident, property owner, and taxpayer of said Aurora county, and that he is the owner, proprietor, publisher, and editor of the Plankinton Herald, which is now, and for many years past has been, a legal newspaper printed and published weekly at and in the city of Plankinton, in said county, by said plaintiff, in an office maintained at the place of publication, which newspaper has, and has had for many years a bona fide circulation far in excess of 200 copies weekly. That said county is a duly organized county, and has a hoard of county commissioners composed of five persons, all of whom have been duly elected, qualified, and acting members of said board since the second (lay of January, 1900. That there are three, and only three, legal newspapers published and printed in said county—the Plankinton Herald, aforesaid, which is and has been for many years democratic in its political faith; the Standard, published at Plankinton, “which is in fact, control, sentiment and management republican in its political faith, although professing to be otherwise"; and the White Lake Wave,which is also republican—and that the aforesaid three newspapers have been ever since on or before January 1, 1900, the only legal newspapers printed and published in said county, and the only newspapers eligible under the law to be designated as official newspapers, as defined by Chapter 50, Session Laws 1897. That said board of county commissioners, at their regular meeting on the 6th of January, 1900, willfully, knowingly, and wrongfully designated, selected and appointed the Plankinton Mail, which is and was republican, and which is not, and was not, a legal newspaper, in that it was not printed either in whole or in part in said county from July 11 to September 10, 1899. one of the official papers of and for said county for the year 1900. That on the 3rd day of January, 1900, and before action had been taken by said board, the plaintiff filed with said board an affidavit in due form, showing that his newspaper was in all respects a legal newspaper and published in said county. That a motion was made before said board that the Mail, Wave, and Standard be made the official papers for the year 1900, to which it was moved as an amendment that the Herald, Wave and Standard be made the official papers, which amendment was lost, and the original motion was carried. That under the law the Herald, owned and published by the plaintiff, is and was entitled as matter of legal right, to be selected and designated as one of the official newspapers for said county instead of the Mail. That the value of the official printing for said county for the year 1900 would exceed the sum of $100 at the rates prescribed by law, and that the plaintiff will be damaged in a sum exceeding that amount if the aforesaid designation is permitted to stand, and that the official printing in and for said county will not be performed according to the requirements of the statute, and that the said plaintiff is without adequate remedy at law. The said board of county commissioners was therefore required to revoke, set aside, and rescind the said order, and in lieu thereof designate and appoint the Plankinton Herald as one of the official newspapers in and for said county, or said board should show cause to the contrary thereof on the 2d day of February, 1900. On February 7th, the cause having been continued to that date, the defendants appeared, and filed a demurrer and motion to quash the alternative writ upon the following grounds:

“(1) That the said writ does not state sufficient facts to entitle the plaintiff to said writ, either in the alternative or peremptorily; (2) that the plaintiff is not entitled to the writ, for the reason that the defendant had acted upon the subject, and designated the official papers, and that if the plaintiff was aggrieved thereby he had an adequate and speedy remedy at law; (3) the writ being issued at the instance of plaintiff as a private person, seeking to enforce a private right, in which he is beneficially interested, the plaintiff must first make demand upon the defendant to perform what he seeks, and that no demand was made before the issuing of the said writ.”

The demurrer was sustained by the court, and from the order sustaining the demurrer and judgment entered thereon this appeal is taken.

It is contended on the part of the appellant that as it is shown by the alternative writ and admitted by the demurrer that there are but three legal newspapers printed and published in Aurora county, of which the Herald, printed and published by the plaintiff, is one, it was the legal duty of the board to designate the Herald as one of those newspapers, for two reasons; First, because it constitutes one of the three legal newspapers published in said county; and, second, because it was democratic in its politics, while the other three designated are republican, and that it was by law made the duty of the board to designate as official papers not more than two papers of the same political faith. The defendant contends—First, that the plaintiff’s only remedy was by an appeal from the order made by the board to the circuit court; and, second, that it is not alleged that any demand was made upon the board by the plaintiff that the Herald, owned and printed by him, should be designated as one of the official newspapers of the county; and, third, that, the board having acted and designated the official newspapers of the county, mandamus will not lie to vacate and set aside the order so made.

The act providing for the publication of the county commissioners’ proceedings, being Chapter 50 of the Session Laws of 1897, provides that:

“At their first regular quarterly meeting after taking effect of this act, and annually thereafter in January, it shall be the duty of the board of county commissioners of the several counties of this state to designate three legal newspapers printed in their several counties as official newspapers: … provided, however, that not more than two newspapers of the same political faith shall be designated within the county, nor more than one of the same political faith within the same municipality if there are other...