State v. Gray

131 N.W. 800, 27 S.D. 461, 1911 S.D. LEXIS 63

• Court: South Dakota Supreme Court
• Decided: June 6, 1911
• Status: Published

Opinions

McCOY, J.

It appears from the record that in Stamford township, Stanley county, two vacancies occurred in the board of township supervisors. One of said vacancies occurred in March, 1910, by reason of the failure of one Casper to qualify after elec-, tion. This vacancy was attempted to be filled by Fox and Whitfield, the remaining two supervisors, who, acting by themselves, without notice to the township justices of the peace, appointed defendant Gray to fill such vacancy. The other vacancy occurred in July, 1910, by the death of Whitfield, and was filled by Fox and Gray, acting as supervisors, who- appointed defendant Tomsik to fill this vacancy. This quo warranto proceedings was commenced by' the state of South Dakota, on relation of said John H. Fox, against the said Gray and Tomsik as defendants to determine their rights to act as members of said board; the action being instituted by the state’s attorney of Stanley county. To a petition substantially setting- up the foregoing state of facts the said Gray and Tomsik demurred on the grounds (1) that there is a defect of parties defendant; (2) that several causes of action have been improperly united; (3) that the petition fails to state a cause of action. The demurrer was overruled and judgment rendered on the complaint for want of answer. The said Gray and Tomsik appeal to this court, assigning as error the overruling of said demurrer.

[1] The only alleged error discussed by appellants in their brief is the misjoinder of parties defendant. Therefore none other will be considered.

[2] It is the contention of appellants that one joint action cannot be maintained against defendants Gray and Tomsik, because they were appointed to fill different vacancies, and that the rule which forbids the joining of several distinct officers as joint defendants in one joint action of this character is applicable to this case, and that a separate action could only be maintained against each separately. Respondent contends that, where the officers are members of a joint board such as township supervisors, it is practically one and the same office involved, and that one joint action may be maintained, and that the rule applicable to separate and distinct offices is not applicable to this case. We are constrained to the view that where defendants are members of a joint board covering the same territory, with the same jurisdiction, where the facts applicable to each are substantially similar, a joint action may be maintained, although the vacancies occurred at different times. There is in reality but one office involved, that of supervisor. Section 580, Code Civ. Proc. This seems to be the view taken by the court in State v. Kearn, 17 R. I. 391, 22 Atl. 322, and in People v. Cohn, 7 Utah, 352, 26 Pac. 928. In State v. Kearn the court said: “The respondents urge that the several members of the town council are joined as respondents, instead of proceeding against each one separately as for a distinct office. The court is-of the opinion that .this is not erroneous. While undoubtedly the title of a single member may be inquired into independently of the title of the others, the court sees no sufficient reason why, upon allegations which affect the title of all alike, they may not be proceeded against in one information. They are all members of one body having joint functions; and, even if it appeared that certain members have been properly elected and others not, there is no reason why a judgment of ouster against those who are not entitled to the office may not be rendered. No reason is apperant why each respondent may not justify or disclaim, as each defendant in a civil suit may separately file a plea which sets up a distinct defense, or one peculiar to himself.” In the case at bar we are unable to discover any good reason why (when the office is a joint one), all or two or more holding as joint members of one office may' not be joined in tlie same action, and especially so when the grounds of complaint are so similar as in .this case, although they may have been appointed on different days for different lengths of service. The policy of the law is against a- multiplicity of suits.

The judgment of the circuit court is affirmed.