Renville State Bank v. Kinsberg

166 N.W. 643, 40 S.D. 191, 1918 S.D. LEXIS 47

• Court: South Dakota Supreme Court
• Decided: March 8, 1918
• Docket: File No. 4227
• Status: Published

Opinion

McCOY, J.

The plaintiff, who 'is respondent in this court, instituted! this action in mandamus to compel thie appellants, as defendants, to certify a money aisises’sment 'of 'benefits in relation to a drainage 'district -established under the statutes of this state. There was a trial to. the court lolf the islsues, and findings ainid judgment were iin- favor of plaintiff, and defendants appeal.

It appears from the record! that petition was filed therefor and a drainage district, known as -drainage district No. 21 of Sanborn counity, established, auidl 'that a contract was let to' Pence & Piier to oouslbruct the drain, which contract to Pence & Pier wlas thereafter ¡assigned and trainsf-erred itq the Woonsocket Drainage Company; that the board of county commissioners of San-born County thereafter issued to said Woonsocket Drainage Company, for services performed by it in constructing said drain, warrants to thie amount iclf about $8,000, which warrants were in 'substantially the following farm:

“South Dakota. $400.00. [Seal of Sanborn County.] No. 723. Ditch Warrant. Woonsloicket, Oct. 13, 1910. Treasurer of Slanbam Oounity, South Dakota: Pay to Woonsocket Drainage Co. or -bearer four hundred! and 00-100 dollars out of any unappropriated fund's belonging to ditch fund Na. 21. I3y order of the Board of Oclunlty Commissioners: E. E. Watsnauer. Chairman: of the Board of County Commissioners. Countersigned: Lewis Strand, County Auditor,---, Deputy.”

Said warrants were signed by the chairman of the county board and c'ounltersigned by! the count}'' auditor, and bore the seal df Sanborn county. Nel'rly $8,000, face value, of such warrants were assigned, transferred', and delivered by said Woionfs'ocke't Drainage Company to respondent, who became and now is the Owner thereof. It also appears that such warrants were i-sSued and! delivered to is'aliidl Woonsocket Drainage Company prior to the completion of said; drain; that no money assessment for benefits has ever been certified by the board of county com1 m-issioners to tihle -county It-reaisurer for collection for -the ¡purpose of creating a fund with ■which to pay said warrants; and that, although requested: to certify -such assessment, the board! of county commissioners have refused and neglected so to do.

[i, 2] Alt fee opening of the trial defendíante moved to quash fee 'petition and alternative writ upon the ground that the alternative writ was improvidently granted, and particularly that said write was- note issued upon affidavit, and feat fee facts stated in fee petition were not sufficient to entitle plaintiff to the relief sought. Defendants now -assign -as amor the overruling of salid motion. It is first urged that fee writ was not issued upon affidavit. We are of fee opinion thalt the petition, which was -swlorn to under oath,, .should 'be treated as .an affidavit for the .purpose of .this action. A written declaration, properly sworn to, may constitute an -affidavit, even though in the form of an ordinary pleading. Woods v. Polland, 14 S. D. 44, 84 N. W. 214; State v. Peterson, 29 Wash. 571, 70 Pac. 71; 2 C. J. 318. We are fails© of the opi-nilon feat fee petition -stated facts sufficient to authorize fee 'alternative writ.

[3] It is also -contended by 'appellants in this, connection that the rights of the parties to this action should have been determined by -a judgment of the court in an ordinary 'action and -not in the first instance by mandamus. We are of fee View that this contention i-s not tenable. As must be observed by .a reading of chapter 134, Laws of 1907, as amended by chapter 102, Laws of 1909, Itihe only method provided far tire creation of a .fund far the payment of such -warrants is a money assessment for benefits certified by the board -of county commis'siioners- for collection to the county treasurer, tinder feis situation of .affairs we are -of fee view thalt mandamus -to compel such' action on the part Of the county board is an appropriate remedy. No judgment ooukl be 'obtained againsit the -county, as the oounty is not •-a party at all to such ’drainage procedure. N© suit for money judgment -could be maintained against fee board of county .commissioners or the -individual members ' thereof, Us they were -act-ting merely -in -an Idfficiai 'capacity. Neither co-ukl any action be maintained against the county treasurer to pay such warrants without a special fund first having been created for -.that purpose. We are therefore of the view that mandamus was a-n available and an appropriate remedy unlder the circumstances of this dase. The following decisions fully sustain this proposition: Reed v. Helie et al., 19 N. D. 801, 124 N. W. 1127; Osborn v. Selectmen of Lenox, 2 Allen (Mass.) 207; People v. Mead, 24 N. Y. 114; State v. Bollinger Co. Count, 48 Mo. 475; People v. Marsh, 21 App. Div. 88, 47 N. Y. Supp. 395; State v. Seattle, 42 Wash. 370, 85 Pac. 11; Himmelmann v. Cofran, 36 Cal. 411; People ev. rel. v. Pontiac, 185 Ill. 437, 56 N. E. 1114; Conway v. Chicago, 237 Ill. 128, 86 N. E. 619; Chicago Library v. Arnold, 60 Ill. App. 328; German Bank v. Spokane, 17 Wash. 315, 49 Pac. 542, 38 L. R. A. 259; Union Trust Co. v. State 154 Cal. 716, 99 Pac. 183, 24 L. R. A. (N. S.) 1111: Redmon et al. v. Chacey, 7 N. D. 231, 73 N. W. 1081.

[4] It is alsra contended1 by appellants that there was no competent evidence tending to ,support .the finding that said drainage ditch had been constructed substantially according to the 'terms anld specifications' of the contract and that the same had been practically completed at the time the injunction action- was inistiiituteidi; s'aildl injunction action hlav-inig been iiimstitute'd long before the commencement of 'thi® aetiloln. This contention brings us for consideration (th'e question and necessity of the completion of 'the drainage ditch as a conidlitilom precedent to respondent’s right to maintain this mandamus' -proceeding. Under the provisions of the statute the boalrd of cou'nty Commissioners- are authorized to make as'seisSmeatis prior to the completion and during tire progress of tine 'constructibn -of -a drain, as in their diiscreation they may determine; ¡the .sitaitute al-So provides that if the contractors are required amd: agree to- (take warrants for their sevices, which was dlotae in this instance,' alsis’essmentg need not be made until the completion, of thle work. Under these provisions of the statute it i's. conlbendeldl that inasmuch as the work of -constructing the dirain has never been' .completed, and inasmuch as it was a disoretioiniaTy matter on the p-alrt of the county board whether or n|c|t aislseis-sments should' 'be made prior to the completion: of the contract' Work, the board of county comm-issiiooers have never been placed in a position where it was their legal duty under the statute to certify am assessment to the county treasurer far ccllleation.

[3, 6] We are inclined to agree with the- view that under the drainage statute it is a discretionary matter with the board of county -dommiiis'slioners whether assessments should be made during the progress of the work prior to its1 completion, or whether lome assessment for the whole octet and expense should be made after the 'construction work has been Completed; but, under the evidence in this case, w'e are oif the view ‘that there wag ample evidence to 'show that ithe ditoh in. question had heen substantially ootnsltru'Cted! and completed according to -contract prior to August,' 1912, arad wiais so Considered by the board lolf couuity com-mii'SSiotiiens of 'said aounty; that 'the salild board o-f county eommissiboers- idffld make an assessment to be filed and certified amdl collected, as & special tax or assessment, ‘by the county treasurer, but that 'the /same bate never been certified, and that one purpose oif this suit is to compel such certification. V' e do not apprehend that a boairfd of County commissioners, after substantial icompli'aruce with the Contract to- -construct. a drain, could sit down for five or Six years and refuse tO' 'Certify an assessment to the -county treasurer anldl (thereby defeat payment to those who had- performed1 the services of substantially constructing sail drain.

[7] It appears from the findings in this case, and from the evidence preserved in the record, that the board -of county commissioners made -an assessment ini money benefits, and gave nbtic-e that such aisisessment would be filed with the :ounty treasurer on the 12th: dlay ¡of August, 1912, -containing a des-c-. iptilani of each .parcel of property so 'assessed, (and fch'e -name of the owner thereof, and the aimbunit of Cach assessment, and the date when such assessment would become delinquent, with penalty amid interest; that after the 'drainage ditch had been substantially completed, owners of real- estate -affected1 thereby commenced an action against the Said board of county commissioners, county -auditor, and county1 treasurer, et al., among -other things, to restrain, the said board of county commissioners, auditor, and treasurer from spreading slaiid assessment upon the tax boobs of said County agiaiiinst salid lands., and from- Collecting the same, and- for the purpose of ‘having judicially 'declared voii-1- and illegal .all /proceeding's in relation to the establishment and construction of -said -drainage ditch, and being the identical drainage ditch, and procedure establishing the same, involved -in this instent action; that in said action the s&iildi botad'of county commissioners, county auditor, and county treasurer interposed an answer in whioh they set forth and declared that all. the proceedings of thie officers aforesaid in the establishment of said drainage ditch,- in levying an assessment for the construction thereof, -and in all proceedings 'relative thereto, were legal and valid, and that said county commissioners, auditor, and treasurer were authorized as a matter of law to certify as a tax against each tract of land affected by said drainage ditch its 'proportionate amount oif the expense of construction under and by virtue of solid proceedings; that on the trial of said injunction action findings and judgment were in favor of the defendants, whereby it was found and judicially declared 'that all the proeeeings in relation to the establishment and construction of said drainage ditch were legal and valid, incluidling the assessment for benefits, and that Said dlitdn tad been substantially completed at the time of the commencement of that action, and which judgment in said injunction action was affirmed by' the Supreme Court of this state on April 13, 1914, and is reported in Smith v. Pence & Pier, 33 S. D. 516, 146 N. W. 709.

It is now urged that the judgment roll including- the pleadings in the injunction suit was not 'competent evidence to sustain the salid findings under the issues of this ca'se. While we are of the view that the judgment and proceedings taken in that case by the board of county commissioners', auditor, and treasurer were not conclusive, nor res adjudicate, as against them, still we •are of the view that the same was prima facie evidence in the nature of quasi judicial admissions from which all consequential inferences may be drawn that materially flow from the acts of said officers taken in said injunction action. Bank v. Duncan, 80 Idam. 196, 101 Pac. 992, 28 L. K. A. (N. S.) 327, 18 Ann. Gas. 78; Commonwealth v. Bridge Co., 216 Pa. 108, 64 Atl. 909, 8 Ann. Cas. 1073; Murphy v. Hindlman, 58 Kan. 184, 48 Pac. 850; Wigmore, Ex. § 1066. From the acts of 'said boaindl of county 'commissioner's, auditor, and treasurer, as shown by the judgment roll in the said injunction suit, it might be inferred that saildl board Of county comimssibners, in the exercise of their discretionary powers under tire statute, elected to and dlid make a valid and legal money assessment for benefits against each parcel of lanid1 affected by said drainage ditch, giving a 'description-, together wliith Itih-e name of -the .owner tih-eireof, and the specific amount .in money severally lavfadl, taxed1, and als-sessad- against each parcel, for the pmrpdse -of -certifying the same to- the co-unty treasurer for -col-eotiiolni to create a futnld f-r-om which' salid warrants -could be p-aid. W-e are therefore of -the view 'that the findings made in this action), that su-dh assessment a-nicl levy had been made, and that s-aiid ¡drainage ditch had been -su-b-stanltlially co-mip-lebeld at the time -the injunction- -acitiion w-a-s commenced-, are supported by competent evidence.

[8] Appelant urges that 'tere is no evidence to show that the contract Ito construid: -s-aii'd -drain was -ever 'transiterred or assigned! by Pence & Pier to the Woans'oebet Dirain-age Oo-m-pany with th-e cons-ent and approval -o-f sla-i-d board1 of cioiunty commissioners. .It lis -contended that the re-c-oiUdsi -o-f minutes- keip-t by the -county auditor of the transactions -of said! county board while acting in relation to such -drain-age -ditch do not s-hiow the -assignment or ¡transfer -o-f salid -contract -or tihlalt said county board -consented thereto. Th-e records oir minutes of 'tllie county auditor do not show such transfer -or -consent thereto, bult oral evidence was -offered, -over the -objection that the -same was incompetent, to the effect that s-u-Ch transfer was, as a matter '.o-f fact, made with the knowledge -and consent of the county .boated. From the fact that the warrants- in -evidence were isisuiad and made payable to the Wioloinso-cket Drainage Complan-y by the said board of co-u-nty commissioners would -seem to indicaste, res ipsa loquitur, tha-t the ¡county -ccwmmi'sfsioners bald knowledge -and consented to the transfer -o-f salid -contract. We are- of the opinion that oral testimony was competent -to -show w-h-at a-ctiom- w-als taken ‘by the county board in this respect in- the absence or omission of any record or minutes showing the same. The general rule seems to be that ¡cita® evidence is not permissible to contradict or vary matters shown by sluoh -official records or minutes; hut where official acts Wave in flaCt been performed and tafeen -place, and where the record's or minutes of such acts h-av-e -been omitted, such- omission- may be shown by parol testimony o-f persons who were present, unles-s there is some law requiring 'that all such matters must appear -o-f record, and making such record th-e only evidence thereof. Dillon, Mun. Corps, §§ 298, 299, and 300; 28 Cyc. 343; Ross v. Madison, 1 Ind. 281, 48 Am. Dec. 361; Brown v. Webster, 115 Iowa, 511, 88 N. W. 1070; Nehrling v. Herold Co., 112 Wis. 558, 88 N. W. 614; German Ins. Co. v. School Dist., 80 Fed. 366, 25 C. C. A. 492; Riverside Tp. v. Stewart, 211 Fed. 873, 128 C. C. A. 251. We have mo law in this state making the minutes .or record of the tranisiacti'ons of the board of county commissioners, when acting in relation to the establishing of drainage ditches, the only evidence of such official acts.

Other assignments of error have been made, all of which have been ooinsiidiereid. We are of the view that no prejudicial error exists therein, and that it will serve no useful purpose to further refer thereto.

Finding n-o error in the retíclrd the judgment appealed from is affirmed, with the modification', however, that previous notice by publication and posting, as required1 by section 5, c. 102, Laws 1909, be given to landowners and cithers affected by s'aid drainage dfitoh of the time when and where Said assessment will be certified to the county treasurer for collection, to the end that those who are required to play said! 'assessments may avail -themselves, if any thereof so dteisire, of Ibhe provisions of section 10, c. 102, Laws 1909, to pay sia'id inidiiviidluial assessments In ¿installments.

Costs on appeal will be awarded to respondent.