Lyman County v. Jones County

South Dakota Supreme Court

Lyman County v. Jones County

178 N.W. 581, 43 S.D. 177, 1920 S.D. LEXIS 76

CourtSouth Dakota Supreme Court

DecidedJuly 15, 1920

DocketFile No. 4404

StatusPublished

This text of 178 N.W. 581 (Lyman County v. Jones County) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lyman County v. Jones County, 178 N.W. 581, 43 S.D. 177, 1920 S.D. LEXIS 76 (S.D. 1920).

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Opinion

WHITING, J.

By vote duly taken Lyman county was divided. That portion of the old county wherein was situate the county seat of the old county retained the old name, while the new territory took the name “Jones county.” The county commissioners of the two counties being unable to settle the question of the apportionment of the assets and liabilities of the old county, such matter was, under chapter 175, Laws 1917, referred for adjustment to the ■ executive accountant, who made a report thereon. Such report and the apportionment therein made being unsatisfactory to Lyman county, such county brought this action to set aside such apportionment and for a new apportionment. The trial court apportioned the assets and liabilities in virtual accordance with the plan that had been followed by the executive accountant. From the judgment of such court and from an order denying a new trial, appeal has been taken to this court.

[1] Appellant. contends that said chapter 175, Laws 1917, merely provides the procedure to be followed in reaching an apportionment of the assets and liabilities, but does not prescribe the rule that shall govern such apportionment. It contends that, as directed by such act, the apportionment shall be “as provided by law,” and that the only law which prescribes the rule that shall govern in apportioning assets and liabilities is that contained in chapter 81, Laws 1909. Under the apportionment made by the trial court, both assets, and liabilities were apportioned between the two counties in the proportion that the relative assessed valuation of the territory contained in each of the new counties bore to that of the other county as showln by the assessment previous to the division. Appellant contends that the 1909 law does not support such an apportionment — that, while the liabilities should, under such law, be apportioned upon such basis, that such law does not prescribe that the assets shall be apportioned on such basis. It contends that the assets of the old county, should pass to that new county in which the same are situate. It must be conceded that, unless there is some statute controll[179]*179ing the apportionment of the assets such assets will become the property of the county wherein they were situate at the time of the division.

[2] We find no statute, other than the two acts above referred to, that in any way relates to this matter. Said chapter 81, Laws 1909, provides that—

The “bonded indebtedness of such original county shall be apportioned to each new division created ratably upon the basis of the last equalized assessment previous to the- division thereof.”

Inasmuch as there is no other statutory provision, it follows that, if it shall be held that the law! of 1917 provides nothing more than, the procedure to be followed, the trial court erred. The 19x7 law imposes the duty upon the executive accountant “to apportion the liabilities and assets * * * in the manner now provided by law.” Certainly this law contemplates that not merely, “bonded indebtedness” be apportioned but that all indebtedness howsoever evidenced and all assets be apportioned. Such Such was the clear intent of the Legislature. There was, however, no existing law providing the “manner” of apportioning anything but “bonded indebtedness.” Should -we not, realizing that it was the clear intent of the Legislature that all liabilities and all assets be apportioned, conclude that the “manner” they had in mind was that “manner” which w&s then prescribed by law for the apportionment of one certain class of liabilities, there being no “manner” prescribed for apportioning other liabilities and assets? In other words, should we not construe these two statutes together, and in so doing read the above quotation from the 1917 law as though there were added thereto the words “for the apportionment of bonded indebtedness?” In no other way can the will of the Legislature — that all liabilities as well as all assets be apportioned — be carried out. We are convinced that the trial court did not err.

The judgment and order appealed from are affirmed.

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WHITING, J.

By vote duly taken Lyman county was divided. That portion of the old county wherein was situate the county seat of the old county retained the old name, while the new territory took the name “Jones county.” The county commissioners of the two counties being unable to settle the question of the apportionment of the assets and liabilities of the old county, such matter was, under chapter 175, Laws 1917, referred for adjustment to the ■ executive accountant, who made a report thereon. Such report and the apportionment therein made being unsatisfactory to Lyman county, such county brought this action to set aside such apportionment and for a new apportionment. The trial court apportioned the assets and liabilities in virtual accordance with the plan that had been followed by the executive accountant. From the judgment of such court and from an order denying a new trial, appeal has been taken to this court.

[1] Appellant. contends that said chapter 175, Laws 1917, merely provides the procedure to be followed in reaching an apportionment of the assets and liabilities, but does not prescribe the rule that shall govern such apportionment. It contends that, as directed by such act, the apportionment shall be “as provided by law,” and that the only law which prescribes the rule that shall govern in apportioning assets and liabilities is that contained in chapter 81, Laws 1909. Under the apportionment made by the trial court, both assets, and liabilities were apportioned between the two counties in the proportion that the relative assessed valuation of the territory contained in each of the new counties bore to that of the other county as showln by the assessment previous to the division. Appellant contends that the 1909 law does not support such an apportionment — that, while the liabilities should, under such law, be apportioned upon such basis, that such law does not prescribe that the assets shall be apportioned on such basis. It contends that the assets of the old county, should pass to that new county in which the same are situate. It must be conceded that, unless there is some statute controll[179]*179ing the apportionment of the assets such assets will become the property of the county wherein they were situate at the time of the division.

[2] We find no statute, other than the two acts above referred to, that in any way relates to this matter. Said chapter 81, Laws 1909, provides that—

The “bonded indebtedness of such original county shall be apportioned to each new division created ratably upon the basis of the last equalized assessment previous to the- division thereof.”

Inasmuch as there is no other statutory provision, it follows that, if it shall be held that the law! of 1917 provides nothing more than, the procedure to be followed, the trial court erred. The 19x7 law imposes the duty upon the executive accountant “to apportion the liabilities and assets * * * in the manner now provided by law.” Certainly this law contemplates that not merely, “bonded indebtedness” be apportioned but that all indebtedness howsoever evidenced and all assets be apportioned. Such Such was the clear intent of the Legislature. There was, however, no existing law providing the “manner” of apportioning anything but “bonded indebtedness.” Should -we not, realizing that it was the clear intent of the Legislature that all liabilities and all assets be apportioned, conclude that the “manner” they had in mind was that “manner” which w&s then prescribed by law for the apportionment of one certain class of liabilities, there being no “manner” prescribed for apportioning other liabilities and assets? In other words, should we not construe these two statutes together, and in so doing read the above quotation from the 1917 law as though there were added thereto the words “for the apportionment of bonded indebtedness?” In no other way can the will of the Legislature — that all liabilities as well as all assets be apportioned — be carried out. We are convinced that the trial court did not err.

The judgment and order appealed from are affirmed.

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Bluebook (online)

178 N.W. 581, 43 S.D. 177, 1920 S.D. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyman-county-v-jones-county-sd-1920.