State ex rel. Township of Dry Run v. Board of Assessment of Dry Run Artesian Well

45 N.W. 38, 1 S.D. 62, 1890 S.D. LEXIS 9

• Court: South Dakota Supreme Court
• Decided: April 1, 1890
• Status: Published

Opinion

Kellam, J.

Appellant brings this appeal to reverse the order of the circuit court dismissing and setting aside the writ of certiorari previously granted by the said court upon the affidavit of Pardon S. Phinney. The object of the writ was to bring before the court, for review, the proceedings of the artesian well commissioner for the county of Hughes, in establishing a certain artesian well in Dry Run township, in said county, and of the board of assessment, in making certain assessments for its construction. Before any return was made in obedience to the writ, respondents appeared, and moved the court to dismiss said writ, for the reasons: (1) Relator has a plain, adequate and speedy remedy by appeal. (2) The acts complained of were purely ministerial in character, and not subject to" review by this writ. (3) Relator in its affidavit has stated no adequate cause for the issuance of the writ, in this: that no act in excess of jurisdiction by defendants is shown. The court granted the motion, and made its order dismissing the writ, and from such order the appeal is taken.

Without setting out the procuring affidavit at length, it is sufficient for the purposes of this appeal to say that, after alleging the matters relied upon to constitute the relator a proper and competent party to institute the proceedings, it presents a detailed statement of facts which, fairly abreviated, are as follows: In August, 1887, two certain petitions were presented to said William Stough, then probate judge and ex officio artesian well commissioner in and for Hughes county, Dakota, asking for the location and construction of an artesian well ixx said Dry Run township, under the provisions of Chapter 7, Law's of 1887, being Sections 2090-2140, inclusive, Comp. Laws; that it did not appear, on the face of either of these petitions, that the persons signing the same were qualified as reported by said law, and that, as a matter of fact, neither of said petitions was signed by the requisite number of persons so qualified; that upon said petitions tlxe said well commissioner afterwards made and filed an order of determination locating and establishing a well, and named the same “Dry Run Artesian Well,” and on the 30th day of March, 1888, made an order for the letting of the contract for sinking the same. No bids having been received at the tixne advertised for receiving the same, he, by order. extended such time to June 25 th, axxd again, for the same reason, to August 1st. At this time, August 1st, an order was made that the matter of the construction of said well “be indefinitely continued until the further order of the commissioner; * -x- q'hat “prior to said adjournment, and within the time provided by law, a protest was duly made under the provisions of Section 2123, Comp. Laws, by the resident owners and freeholders of the majority of the property assessed, or to be assessed, for the consti-uction of said well, before the board of county commissioners of said couxxty, and duly filed before said board, against the laying out and construction of said well;” that no special assessments or assessment roll for the years 1887 or 1888 were made or extended; that afterwards, and on the 3d day of July, 1889, no new application having been presented, the said well commissioner made an order, and entered the same upon the artesian well records of said county, for the completion of said well; that from and after January 1, 1889, Thomas H. Green was the duly elected, qualified, and acting county treasurer of said county, Alfred S. Guthrie its sheriff, and William S. Wells the chairman of its board of commissioniers; that on the 25th day of July, 1889, there was a pretended meeting of the board of assessment under Section 14, c. 14, Laws 1889, for the purposes in said section indicated; that all of said officers last named, to-wit, county treasurer, sheriff, and chairman of the board of county commissioners, were then and there qualified to act as members of said board; that there were present at said'meeting said well commissioner, Stough, —who was disqualified to act on said board, because the owner of land to be directly assessed for the construction of said well, and who declined to act thereon, — the said treasurer, Green, and G. C. Sprague, the county coroner, and no other; and that said Green, treasurer, and Sprague, coroner, then and there assumed to organize axxd act as said board of assessment, and did then and there assume as such board, to “make certain pretended county, township, and dix-ect assessments for said well,” which assessments are particularly set forth in said affidavit; that said pretended assessment, certified to by said “0. C. Sprague, chaix’xnan,” was filed in the office of the county clerk of said Hughes county, to be extended on the regular tax books of said county. 'It will be observed that all of the foregoing proceedings, which culminated and ended in the final order of the well commissioner establishing this well, March 30, 1888, were taken and had under the law of 1887, which law remained in force uxxtil July 1, 1889, when Chapter 14. Laws 1889, took effect; and all subsequent px’oceedings, commencing with the order of July 3, 1889, for the completion of the well, were had under the new law. Upon these facts two main questions are presented — First—as to the establishment of the well; and, second, as to the assessments for its construction.

As before observed, the first question must be considered and determined under the provisions of the law of 1887. Section 2097, Comp. Laws, being of the law of 1887, provides that, before the well commissioner takes any action towards establishing any well, there shall bo filed with him an application signed by not less than five freeholders, qualified in other respects as therein particularly set forth. The affidavit of relator affirmatively declares that no such application was so filed, because neither of the applications which were filed was signed by the requisite number of qualified persons; and in the disposition of this case the statements of the affidavit must be treated as facts. The order establishing the well was, however, made March 30, 1888. Upon these facts we should have little trouble or hesitation in disposing of the order establishing this well, except lor Section 2116. That section provides “that the proceedings in establishing any well shall be subject to review upon certiorari, as herein provided. Notice of such certiorari shall be served on the commissioner within 10 days after the determination of such commissioner in establishing any well,” and then, after prescribing the manner of bringing such certiorari, and the practice and judgment of the court upon the hearing of the same, further declares: “If no certiorari be brought within the time herein prescribed, the well shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or in equity; provided, further, that, when such proceedings are brought, the commissioner shall postpone the letting of contracts and all other proceedings until after the determination of the court.”

The language of this statute is comprehensive and positive, and, as it is not claimed that this proceeding or any other was brought within the time therein limited, it is controlling, and we must hold, under it, that all inquiry as to the establishment of the well is now foreclosed and barred. This is emphatically a statute of repose, and while these facts, if properly brought before the court within the time allowed for their review, must have defeated and vacated such order, it was undoubtedly competent for the legislature to limit the time within which such attack might be made, aad to declare, as it has, that after the expiration of such time the legality of the order should be beyond the feach of question or review.

We think the claim of appellant’s counsel that Sections 2115 and 2116 — from the latter of which the above quotation is made —are designed to, cover only the matter of assessments, and that the certiorari therein provided for can only be brought after such assessments are made, is not sustained by a careful study of this act. Under Section 2112, the commissioner, upon making his final order establishing the well, proceeds to “give not less than sixty days’ notice of the time and place of letting.” Such notice must also state the time and place when and where his assessments may be reviewed, which assessments he must announce at the time and place of such letting, (Section 2115,) and they are “thereupon” subject to review and cor rection. Within 10 days after this review before the well commissioner any person aggrieved thereby may appeal; but all those proceedings are distinct from and independent of the certiorari provided for in the latter part of Section 2116, and must necessarily occur long subsequent to the bringing of the certiorari. The certiorari must be initiated within 10 days after the order establishing the well, but the announcement of assessments, and their review, cannot be had until at least 60 days after such order establishing the well. It is very evident that the legislature intended that the legality of the well should be firmly established before any assessments should be made, and so provided that within 10 days from its establishment its legality might be inquired into and determined, upon certiorari but, if not so challenged within that time, “its legality should not thereafter be questioned;” and this intention is strongly emphasized by the closing provisions of said Section 2116, “that when such proceedings are brought the commissioner shall postpone the letting of contracts and all other proceedings until after the determination of the court.” But for this statute of limitation the facts herein stated would present the case of an inferior officer assuming to perform an act which he was only authorized to perform after the occurrence of some prerequisite ,or condition precedent, as in the case of Dartmouth Sav. Bank v. School Dists., 43 N. W. Rep. 822, cited by appellant’s counsel, and of course would have been determined by the same rule applied by the court to that case; but with this statute, and controlled by it, the case is one in which the law says that, after a limited time, the absence of such prerequisite shall not be shown nor taken advantage of. The legality of the order of the well commissioner, establishing the well, is, in our opinion, fixed and set .at rest by the statute. Before proceeding to consider the matter of assessments, it may not be out of place to direct the attention of counsel to Section 2114. This section, we think, was not referred to in the briefs or arguments of either side. While we do not intend to intimate any opinion as to the effect upon subsequent proceedings of any adjournment or series of adjournments exceeding in all 40 days, its provisions may be sufficiently important to justify examination in connection with further proceedings, which may be undertaken in this case.

The next question to be examined is, did the board of assessment exceed its jurisdiction in making the assessments set out in the affidavit upon which this writ was issued? Section 14, C. 14, Laws 1889, provides for a board of assessment, to be composed of the chairman of the board of county commissioners, the county treasurer, and the well commissioner, of which board the county clerk shall be the clerk; subject however, to the provisions of Section 18 of the same act, which are that none of such officers shall be qualified to act on said board of assessment, whose lands are to be directly assessed. In case any member of such board is disqualified, his place shall be filled by the sheriff of the county, or in case the sheriff is so disqualified, by the county coroner. The affidavit upon which this writ issued states that the well commissioner, Stough, was so disqualified, and did not sit on said board, but that Wells, chairman of the board of county commissioners, and Green, county treasurer, were not disqualified, and that Guthrie, sheriff, was qualified; that on the 25th day of July there was a meeting of persons claiming to be such board of assessment, and that such board was then and there composed of Green, county treasurer and C. C. Sprague, county coroner; and that as such board they proceeded to make such township and district assessments for the construction of the well in question. For the purposes of this motion, it is conceded by both sides that the relator’s affidavit, upon which this writ originally issued, must be taken as true, and as correctly showing to the court the facts as they existed at the time; and the conclusions stated in this opinion must be understood to be based upon the recital of facts in such affidavit. The facts, then, in respect to the composition of the board of assessment, are that the county treasurer, chairman of the board of county commissioners, and the sheriff were each duly qualified to act as members of said board, and that the well commissioner was disqualified. This being so, the law is very plain as to who should constitute such board. The coroner could only take the place of the sheriff, when the sheriff was disqualified Respondent’s counsel says that the fact that the coroner was called in, and did act, raises a presumption, at least, that the facts justified it; that is, a presumption of regularity. It is doubtful if this would be the law in any case like this, but certainly not here, as against the undisputed assertion of relator’s affidavit. — equivalent upon this argument to a proved fact — that the sheriff was qualified, for the plain logic and provision of the law is that, if the sheriff was qualified, the coroner was not. The only board of assessment, then, authorized by the law, upon these facts, was a board composed of the county treasurer, the chairman of the board of county commissioners, and the county sheriff. The board that assumed to make the assessments complained of, and whose acts this writ is brought to review, was made up of the county treasurer and the county coroner. This was not the board to which the law committed the duty of making these assessments. It was not a board at all. The petition does not present the case of a legally constituted board acting in excess of authority, but rather that of a self constituted board or body of men, with no legal authority in the premises, assuming to do an act which the law had imposed upon a different body. This not being a board either authorized, created, or recognized by the law, it had no functions, j u - dicial or otherwise; and, as it had no. power to do any act, it had no authority to make any record. Upon the facts recited in the affidavit, their act in making such assessments was absolutely nugatory and void, and imposed no liability, either upon the lands assessed or their owners. The pretended act of assessment was void, not because the board exceeded its jurisdiction in making such assessments, but because there was no board. Noboav is legally responsible for it, and nobody is legally bound by it. It is not the act of any board whose conduct is subject to review in this proceeding. It was not a board having any legal existence, and it could do no legal act, nor could it make any record of its acts. Its attempted assessment wag void, and its record a blank, and certiorari will not lie to review such proceedings. If we are correct in these views, the court below was right in dismissing the writ. And, besides the attempted assessments being void upon the showing of relator, he had a plain, speedy and adequate remedy against their collection. The order appealed from is affirmed;

all the judges concurring.