Wells v. City of Sioux Falls

• Decision Date: 07 April 1903
• Citation: 94 N.W. 425,16 S.D. 547
• Parties: R. J. WELLS, Plaintiff and appellant, v. CITY OF SIOUX FALLS et al., Defendants and respondents.
• Court: South Dakota Supreme Court

16 S.D. 547

94 N.W. 425

R. J. WELLS, Plaintiff and appellant, v. CITY OF SIOUX FALLS et al.,

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

Bailey & Voorhees

Attorneys for appellant.

Hosmer H. Keith

Attorneys for respondents.

Opinion filed April 7, 1903

HANEY, P. J.

The object of this action is to prevent the sale of certain city bonds. The appeal is from an order overruling a demurrer to the answer.

When the case was called for oral argument, Park Davis, Esq., appeared as a friend of the court and moved to dismiss the appeal, alleging, in substance, that the action was collusively instituted, without any real dispute between the parties, for the purpose of obtaining a decision favorable to the validity of the bonds. After hearing numerous affidavits in support of, and in opposition to, the motion, and the able and exhaustive argument of counsel in relation thereto, the court concluded to allow Mr. Davis, and other counsel associated with him, to file printed briefs, and to participate in the oral argument upon the merits of the appeal, reserving its decision upon the motion to dismiss. Mr. Davis and his associates having declined to avail themselves of the offered opportunity to argue the merits of the appeal, and counsel of the parties to the action having been heard, the issues presented thereby were taken under advisement, together with the motion to dismiss.

It is not deemed necessary to reproduce the contents of the affidavits, or to review the authorities relating to the motion to dismiss. We do not believe that the parties to this action or their counsel intended to deceive or mislead either the court below or this court. The circumstances attending this litigation are not exceptional. An issue of city bonds was contemplated; their validity was in doubt; and, as is frequently done, an action was instituted, and speedily appealed, for the purpose of having an early determination of the legal questions involved. No issues of fact will be determined by any decision this court may render in this action. Persons who are not parties to it will not be precluded from establishing in another action a different state of facts from those presented by the pleadings in this. it is true that our decision may become a controlling precedent as to the legal questions properly presented and determined on this appeal, but we see no impropriety in determining such questions after able and respected counsel, who earnestly oppose the issuance of these bonds, have been given an opportunity to be heard by printed briefs and in oral argument. Our decision will not extend beyond the issues of law raised by plaintiff’s demurrer to the defendants’ answer. If facts which render the proposed bonds invalid were omitted from the complaint in this action—and such was the contention of counsel in support of the motion to dismiss—no reason existed why any taxpayer, or other person having the requisite interest, might not have instituted another action wherein such facts could have been established. In view of the issues involved and all the circumstances as we understand them, without attempting to formulate a general rule applicable to motions of this character, we conclude that the appeal should not be dismissed or the action abated because of collusion between the parties.

Corning now to the merits, we observe that no material allegation of the complaint is denied, and that the only facts alleged in the answer, not found in the complaint, are

(1) that the due and unpaid taxes and assessments made on the taxable property in the said city were and are sufficient to meet all of the outstanding warrants mentioned in the complaint, and

(2) that a majority of the legal voters of said city voted in favor of issuing the bonds, at the special election on November 5, 1901, referred to in the complaint.

Therefore the question arises whether these facts, taken in connection with the properly pleaded allegations of the complaint, constitute a defense to the cause of action therein alleged. It appears from the complaint that Sioux Falls is a city of the first class; that the plaintiff is a citizen and taxpayer therein; that the defendants are the mayor, the auditor, and the aldermen thereof; that the electors thereof, at a special election on November 5, 1901, voted upon the proposition of issuing bonds to the extent of $210,000 for the purpose of providing water for domestic uses; that the auditor was, on December 1, 1902, directed by...