Wickhem v. City of Alexandria

• Decision Date: 03 September 1909
• Citation: 23 S.D. 556,122 N.W. 597
• Parties: P. F. WICKHEM et al., Respondent, v. CITY OF ALEXANDRIA, Appellant.
• Court: South Dakota Supreme Court

23 S.D. 556, 122 N.W. 597 (1909)

P. F. WICKHEM et al., Respondent v CITY OF ALEXANDRIA,

Appellant

South Dakota Supreme Court

Appeal from Circuit Court, Hanson County, SD

Hon. Frank B. Smith, Judge

Affirmed

P. A. Zollmann, and E. E. Wagner

Attorneys for appellant.

T. J. Spangler and H. J. Mohr

Attorneys for respondents.

Opinion filed Sept. 3, 1909

WHITING, J.

The plaintiffs herein petitioned council of the defendant city, and prayed that certain lands belonging to plaintiffs and situate within the corporate limits of defendant be excluded therefrom, in accordance with the provisions of sections 1509 and 1510 of the Political Code. The defendant, through its council, refused the prayer of such petition, and plaintiffs presented their petition to the circuit court in accordance with the provisions of section 1511 of the Political Code, and, under the power in the court vested by section 1512 of such Code, the circuit court granted the petition after a trial on the merits, and the defendant has appealed to this court from the judgment of the circuit court, and from the order of such court refusing a new trial.

There are several assignments of error set forth in the abstract, some of which are not relied upon on this appeal. Among the assignments called to our attention by appellant’s brief is an assignment to the effect that the evidence is insufficient to support the judgment. Counsel do not seem to urge this claim very strongly, and we are fully satised that there is no merit in same.

The only assignments which seem to be actually relied upon are those based upon the claim that sections 1511 and 1512, above referred to, are unconstitutional. The appellant recognizes the fact that this court, in the case of Pelletier v. City of Ashton, 12 S.D. 366, 81 N.W. 735, passed upon the question of the constitutionality of these sections and held the same to be constitutional; but appellant claims that the great weight of authority supports its contention, and asks for a reconsideration by this court of the constitutionality of these sections. Since the decision of the Pelletier Case, in 1900, two other cases based upon these sections have been before this court, and in those cases it seems to have been conceded that the sections were constitutional. It is a well-established rule of law that “only when the collision between the legislative and the fundamental law is certain and inevitable do the courts feel justified in declaring a law void.” State v. Becker, 3 S.D. 29, 51 N.W. 1018. Or, as was said by the court in Henrico (County v. City of Richmond, 106 Va. 282, 55 S.E. 683, 117 AmStRep 1001: “To doubt must be to affirm.” We certainly should hesitate before’...