Williams v. Book

• Decision Date: 24 November 1953
• Docket Number: No. 9373,9373
• Citation: 75 S.D. 173,61 N.W.2d 290
• Parties: WILLIAMS et al. v. BOOK et al.
• Court: South Dakota Supreme Court

Page 290

61 N.W.2d 290

75 S.D. 173

WILLIAMS et al. v. BOOK et al.

No. 9373.

Supreme Court of South Dakota.

Nov. 24, 1953.

M. T. Woods, Sioux Falls, M. Q. Sharpe, Kennebec, for plaintiffs and appellants.

Martens, Goldsmith & May, Pierre, George H. Taggart, Timber Lake, for intervenor and respondent.

ROBERTS, Presiding Judge.

The plaintiffs challenge the validity of Chapter 37, Laws of 1951, entitled 'An Act Changing and Defining the Boundaries of Dewey County.' This act required submission to the voters of Dewey County of the question of changing the boundaries of that county so as to include all the territory lying within the unorganized County of Armstrong. A majority vote was cast in favor of the proposed change. The act provides that if the boundaries are changed as therein provided it shall be the duty of the officers of Stanley County to deliver all the books, records, accounts and property relating to the affairs of Armstrong County to the officers of Dewey County. Plaintiffs applied for a writ of prohibition commanding the defendant officers of Stanley County to refrain from taking further proceedings under the 1951 act. Dewey County was granted leave to file a complaint in intervention. Plaintiffs and defendants filed a joint answer to such complaint. This appeal is from the judgment for intervenor dismissing the alternative writ of prohibition.

Stanley County at the time of the passage of the act in question was one of the organized counties of the state. Armstrong County had never had a county organization. Pyatt County was attached at the Fourth Session of Legislature, Chapter 48, Laws 1895, to Stanley County for judicial and other purposes and at the same session, Chapter 52, Laws 1895, the name of the County of Pyatt was changed to Armstrong County.

It is claimed that the act in question contravenes the provisions of Section 1 Art. IX, of the state constitution, which 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 county 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.'

It is also contended that the act is not a general law upon the subject of county boundaries and is in violation of Section 23, Art. III, of the constitution. This section after specifying certain subjects including 'changing the names of persons or places' and 'regulating county and township affairs' declares that in 'all other cases where a general law can be [made] applicable' a special statute shall not be enacted.

The power of the legislature over counties in the absence of limitations placed upon it by the constitution is plenary and supreme. Schomer v. Scott, 65 S.D. 353, 274 N.W. 556. The constitution, Section 1, Art. IX, recognizes a distinction between organized and unorganized counties. As to the former, the boundaries cannot be changed except by a majority vote of the electors in each of the counties affected. If a change of boundary affects two or more organized counties the change must be agreed to by a majority of the votes cast in each county. The constitution makes no provision, however, for submitting the question of a proposed change of boundary to the voters or residents of an unorganized county. Stuart v. Kirley, 12 S.D. 245, 81 N.W. 147, 148, was an action to enjoin the submission to the voters of Stanley County of the question to include territories lying within three unorganized counties. Sustaining the constitutionality of a statute substantially identical, including the title, with the provisions of the act under consideration, this Court said:

'The only organized county affected by the act we are considering is Stanley county, and it is that county alone that is to be affected by the change. * * * Such an unorganized county cannot be said to be affected by changes in county lines made in an organized county, although a part or all of such unorganized county, is included within the county lines of the organized county as changed. When, therefore, it speaks of the county or counties to be affected thereby, it includes only organized counties.'

It is claimed that there has been a complete change in the political status of unorganized counties. It is not necessary to discuss the numerous statutes conferring powers upon unorganized counties that are appropriate to an existing body politic. They do not purport to provide for the formation or creation of new counties within the contemplation of the constitution, but in fact recognize the continuous existence of unorganized counties and so far as questions now under consideration are concerned the political status of Armstrong County was that of an unorganized county.

To the objection that the act there under consideration was in conflict with the constitutional prohibition against special statutes, this Court in the Stuart v. Kirley case said:

'The general provision at the close of that section that 'in all cases where a general law can be applicable no special law shall be enacted' is designed as a guide to the legislature, and that body must itself determine whether or not a general law can be made applicable to the subject.'

It is contended that this interpretation founded on a misquotation of Section 23, Art. III, of the constitution, is not sound and should be overruled. This section as we have indicated after inhibiting special legislation in certain enumerated cases provides that 'in all other cases where a general law can be applicable no special law shall be enacted.' We are unable to agree with counsel that because of the omission of the word 'other' in the interpretation of this section of the constitution the court concluded that whether an act relating to an enumerated subject can or cannot be made a general law is a question for legislative determination. It was not contended in that case that the subject matter of the statute was within an enumerated class. This decision was referred to with approval in Viland v. Board of Education, 37 S.D. 412, 158 N.W. 906. And the subject matter of the statute there under consideration was not within a class specifically mentioned. We think that where the validity of a statute is challenged on the ground that it is a special and not a general law within any one of the eleven classes enumerated in the section under consideration, the determination of the question is for the courts and not the legislature. 16 C.J.S., Constitutional Law, Sec. 153; see also Annotations in 12 Am.St.Rep. 716, and 93 Am.St. Rep. 106.

This brings us to a consideration of the claim of counsel that the 1951 act conflicts with the specific prohibitions against special laws 'changing the names of persons or places' and 'regulating county and township affairs'. In Stuart v. Kirley, supra, referring to the provisions of Section 1, Art. IX, of the constitution, this Court said:

'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.'

The legislature under this section has power to create new counties 'by general law'. The creating of new counties and the changing of boundaries of counties already in existence are distinctly different. Wheeler v. Herbert, 152 Cal. 224, 92 P. 353. A change of boundaries of counties already organized does not affect or change the organization of the counties concerned. It does not create a new political subdivision. The terms of the 1951 act relate to change of boundaries and provide a procedure for its accomplishment in the event of an affirmative vote on the question submitted thereunder. The statute does not extend its operation beyond the time when a change of boundary has been completed. The part of this section providing for change of boundaries of existing counties does not contain the limitation of the preceding part with respect to enactment by general law and this clearly...