State ex rel. Cook v. Board of Comm'rs

SMITH, J. Appeal from the circuit court of Tripp county. Certiorari from the .circuit court to -the board of county commissioners and county auditor to review the action of the board in submitting to the legal .voters of the incorporated -city of Winner the question of the sale of intoxicating liquors. The record discloses the following facts: Ramro is one of the organized. townships o-f Tripp county. At an election called for that purpose the question of the sale of intoxicating liquors within said township was submitted to the legal voters of said township, a majority of whom voted in favor, of. such sale. -Thereafter, a, petition, plat, and -census-.were submitted to .the board of- county commissioners under chapter 14, art. -26, -of the ■ Political Code, asking- for the Incorporation of the city- of ■ Winner,- which included ■ within ' its' — 368 — proposed boundary lines section 20, in Kamro township. Pursuant to said petition, the question of the incorporation of the city was submitted to- the voters residing within its purported limits on the 21st day of March, 1911, and a majority of the voters voted in favor of incorporation, and the city was duly declared incorporated. Pursuant to resolution of the board of county commissioners of Tripp county entered on the 23d of March, 1911, notice was given of an election to be held in the city of Winner on the 18th day of April, 1911, for the purpose of electing city officers, which contained also a further notice that at the same election the question of granting permits to sell intoxicating liquors at retail, within the corporate limits of such city, would also be submitted to the legal voters at the same election. The petition, dated March 14, 1911, purporting to be signed by 26 “legal voters of the proposed city of Winner, Tripp county, S. D.,” stating that a vote was desired upon the question of granting permits to sell intoxicating liquors at retail within the corporate limits of said city of Winner, was filed in the office of the county auditor on the 16th day of March, 1911. The notice of election of officers and on sale of intoxicating liquors was signed by John J. Halligan, county auditor. An election was held pursuant to said notice, city officers were elected, and the return of the purported vote on the sale of intoxicating liquors disclosed 130 votes cast, of which 101 were for license, 27 for no license and 2 blank votes. Pursuant to this vote, the county commissioners of Tripp county granted applications and approved the bonds of three men, Sleezer, Thomas, and Koch, permitting them' to sell intoxicating liquors at retail in the city of Winner. The petition for a vote on the question of the sale of intoxicating liquors was dated March 14, 1911, was filed in the office of the county auditor March 16, 1911, and the election held on the 18th day of April, 1911. Thereafter, on the 18th day of August, 1911, an application for a writ of certiorari was presented to the judge of the circuit court within and for Tripp county by the relator, S. B. Cook, a resident legal freehold voter and taxpayer of the city of Winner, demanding that a writ of certiorari issue to the end that the proceedings of the board of county commissioners in submitting the question of the sale of in — 369 — toxicating liquors in the city of Winner be declared null and void. The county commissioners and auditor were named as defendants. Upon this petition an order to show cause was issued, returnable September 19, 1911, at which time the board and county auditor appeared by the state’s attorney of Tripp county, -and moved to quash the writ upon various grounds, which motion was overruled. The board and county auditor thereupon made return to the writ, certifying in full the proceedings hereinbefore stated, Thereafter, on November 1, 1911, the circuit court entered judgment declaring the action of the county commissioners and of the county auditor in submitting the question of the sale of intoxicating liquors at the election held on April 18, 1911, the vote thereon, and the accepting and approving the bonds of Sleezer, Koch, and Thomas for the sale of intoxicating liquors at retail, annulled and absolutely void and of no force or effect. The “defendants in the above-entitled action, and Guy D. Sleezer, Joe Koch, and F. C. Thomas,” on November 9, 1911, served a notice of appeal, signed by the state’s attorney and other counsel who' also appeared for Sleezer, Koch, and Thomas, from said judgment, and served an undertaking on behalf of Sleezer, Koch, and Thomas, which was duly approved and filed. On the 15th day of November, 1911, the county commissioners and county auditor served .a purported notice of appeal, but no undertaking on an appeal. On the 4th day of December, 1911/ another notice of appeal signed by the same counsel as the first notice, on behalf of the same defendants, and also as attorneys for Sleezer, Koch, and Thomas, was served, accompanied by an undertaking which was approved and filed on December 5, 1911. Respondent in his brief filed January 13, 1912, “moves the court to dismiss the appeal, and to strike the same from the calendar” for failure to comply with the requirements of chapter 15, Daws of 1911, and for various other reasons indicated above in the appeal proceedings themselves. • [1] An examination of the records and files in the office of the clerk of this court discloses that no motion or notice, of motion to dismiss either or any appeal has been served or filed as required by rule 22 [124 N. W. xi] of this court, and that no — 370 — such motion is now pending or has been made in this court. Motions to dismiss appeals are clearly governed by the provisions of rule 22, and the purported motion made in respondent’s brief, and not otherwise, is not authorized by law or the rules of this court, and requires no further consideration. Upon the return day the defendants moved the trial court to quash the writ upon divers grounds, the one apparently chiefly relied upon in appellant’s brief being that relator has other plain, speedy, and adequate remedy at law, and that the writ fails to show that the board of commissioners did not act within their jurisdiction and authority in approving the bonds of and granting permits to Thomas, Sleezer, and Koch, in that the writ fails to> show that said bonds and permits were not executed under authority of the election held in L,amro township in March, 1911, at which the question of the sale of intoxicating liquors within said township was regularly submitted to the voters, a majority of whom are shown to have voted in favor of the sale. Appellant also assigns as error the portion of the judgment annulling the bond's of Sleezer, Thomas, and Koch, and further contends that the court erred in entering judgment for the plaintiff, for that the records do support the judgment. The statute provides: “A writ of certiorari may be granted by the supreme and circuit courts when inferior courts, officers, boards or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal, nor in the judgment of the court any other plain, speedy and adequate remedy.” Section 754, Code of Civ. Proc. In State ex rel. v. County Commissioners, 1 S. D. 292, 46 N. W. 1127, 10 L. R. A. 588, -thi's court held that the acts of administrative or executive officers when they have exceeded their jurisdiction may be reviewed by certiorari, where there is no writ of error or appeal, nor in the judgment of the court any other plain, speedy and adequate remedy. [2] Appellants contend that the motion to quash the writ should have been sustained for the reasons (1) that respondent had an adequate remedy, in that he could have contested the election at which the question of the sale of intoxicating liquors within the city of Winner was submitted to the legal voters of — 371 — ■that city by the acts of the' county commissioners and' county auditor; and (2) that respondent could have appealed "from the action of the board in submitting the question at said election. Almost identical questions were presented to this court upon motion to quash the writ of certiorari in the case of State ex rel. v. County Commissioners, supra. This court there said: “These remedies might and undoubtedly would be serviceable in reaching some of the results that might follow the acts complained of, but it is not perceived how any or all of them could be made available to accomplish the relief towards which this writ is directed.” In that case the 'board of county commissioners of Hughes county attempted to establish eleotion_ precincts and polling places in unorganized counties attached to Hughes county for judicial purposes only, and to appoint election judges therein. This action of the board was attacked by writ d'f certiorari' from this court as an unwarranted and illegal assumption of power by the board of county commissioners. It was held that a contest of the purported election would not constitute a plain, speedy and adequate remedy, and that the writ would lie. [3] The right of appeal from actions or decisions of a board of county commissioners may be doubtful under the statute, unless it appears that such action is upon matters properly within their ■ jurisdiction. Section 850, Political Code,' provides: “From all decisions of the board of commissioner's upon matters properly before them there shall be allowed an appeal to the circuit court by the person aggrieved. * * *” The contention" of respondent is that the submission óf the question of the sale of intoxicating liquors within the city of Winner was a matter not properly before the board, and was "not within their authority or jurisdiction. Respondents have not sought to challenge the election itself for irregularities, nor is the election alleged to be illegal for any reason other than that the county commissioners, were without power or authority to receive or act upon a 'petition for, or to order the submission of the question of, the sale of intoxicating liquors within the city of Winner. It is self-evident'that an appeal from the action of the board in ordering the election would constitute neither a plain, speedy, nor adequate remedy to de — 372 — termine the single question of the authority or jurisdiction of the ’board of county commissioners over the matters thus in controversy, even if the right to appeal were not in doubt. It was held by the late territorial Supreme 'Court in Waterworks Co. v. Hughes County, 5 S. D. 145, 37 N. W. 733, that under this statute appeal would lie only when the decision of the board was upon questions which might be deemed judicial or quasi judicial, and this view of the statute was later apparently approved and adopted by this court in State ex rel. v. County Commissioners, supra. [4] It is plain that the submission of the question of the- sale of intoxicating liquors is a purely administrative act on the part of the body vested with that authority, and under the rule thus laid down such action is not reviewable upon appeal, unless expressly authorized by statute. No such appeal is provided by statute. The decision of this court in State v. Toomey, 129 N. W. 563, is instructive in this connection, although the. point under discussion was not directly in issue in that case. We hold, therefore, that neither a contest of the election nor an appeal from the action of the board would afford a plain, speedy, or adequate remed}'', and that certiorari is a proper proceeding to review the question of jurisdiction or authority of the board of county commissioners and the county auditor to receive and file a petition to submit .the question of the sale of intoxicating liquors in the city of Winner, and to call an election for that purpose. It is appellant’s contention that by statute the auditor and county commissioners are given the same power and authority that are vested in the president and board of trustees in the matter of the sale of intoxicating liquors. [5] Section 1410 of the Political Code provides that, whenever any area or contiguous territory not exceeding four square miles shall have resident thereon a population of not less than 500 inhabitants not already included .within an incorporated town or city, it may become incorporated as a city as follows: Any 50 legal voters thereof may file, in the office of the county auditor a petition to the board of county commissioners, which petition shall define the boundary of the proposed city, and a prayer that the question be submitted to the legal voters residing within such — 373 — limits whether they desire to organize a city. Upon the filing of such petition the commissioners are required to fix a time and place within the boundaries of the proposed city at which an election may be held, to appoint judges for the election, and to give notice of the election. The returns of such election are to be canvassed and the result entered upon the records of the board of county commissioners. If a majority of the votes cast shall be for city organization, inhabitants in the territory described in the petition are deemed to be an incorporated city, with the name stated in 'the petition. When the city has become thus incorporated, the county commissioners are required to call and give notice of another election, and perform the same duties relative thereto as are “above required” to be performed by the president and trustees of a town, under the provisions of section 1411, Political Code. By section 1411 it is made the duty of the president and board of trustees of .a town “to call and give notice of an election to elect city officers, and to designate the time and place or places of holding the same.” The board are required to appoint judges, canvass the returns, and cause the results to be entered upon their records. The provisions of this chapter relative to the election of city officers are likewise made applicable thereto. No other or further power or authority relating to elections in cities organized under section 1410 is vested in boards of county commissioners than is vested in the president and trustees of the town under section 1411. The provisions of both sections relate exclusivély to the election of city officers, and extend to no other subjects whatever. The authority conferred upon the board.of county commissioners is to call and give notice of an election to elect city officers, and to fix the time and place of holding such election. The power thus conferred upon the board is special, is limited to a particular subject, and cannot be extended beyond the language of the statute itself. It is entirely clear, therefore, that county commissioners are not authorized to receive a petition for a vote on or to submit the question of the sale of intoxicating liquors at retail, within a city organized and incorporated under the provisions of section 1410 of the Pol. Code. The filing of the petition for an election on the question of the sale of intoxicating — 374 — liquors, the calling of the election, and the canvass, of the vote as well as the election itself were wholly void and without authority. That portion of the judgment of the trial court canceling .the approval of and revoking the bonds given by Sleezer,' Koch, and Thomas as retail dealers in intoxicating liquors presents an entirely different proposition. It is respondent’s contention that vSleezer, Koch, and Thomas are .not parties to the record or proceedings under the writ, and for that reason cannot maintain this appeal. [6] Section 783 of the Code of Civil Procedure makes the provisions of the Code relative to new trials and appeal's applicable to certiorari proceedings except in so far as they are inconsistent with other provisions of the statute governing certiorari. Section 440, Code oí Civ. Proc., provides that any judgment or any order defined in section 462 may be reviewed upon an appeal by the “party aggrieved.” Section 462, C. C. P., is as follows: “The following orders when made by the court may be carried to the Supreme Court.” Subdivision 2: “A final order affecting a ■substantial right made in special proceedings or upon a summary application in an action for judgment.” An appeal therefore may be taken “by the party aggrieved” from a final order affecting a substantial right in special proceedings as in civil action’s. By section 752, C. C. P., “the party prosecuting a special proceeding ■may be known as the plaintiff and' the adverse party as defendant.” Who are “adverse” parties in a special proceeding? We construe the term to. embrace any person whose personal or property or othér rights may be adversely affected by the operation of the judgment or the final relief sought in the proceedings as well as the court tribunal or officer whose official acts are challenged for lack or excess of jurisdiction. Switzler v. Rodman, 48 Mo. 197; Cunningham v. Porchet, 23 Tex. Civ. App. 80, 56 S. W. 574; In re Mead’s Estate, 49 Pac. 5; Lawless v. Reagan, 128 Mass. 592; Fox v. West, 1 Idaho, 782; Sutton et al. v. Con. Apex Mining Co., 12 S. D. 576, 82 N. W. 188. Both the application for the writ and the writ in this proceeding demand final judgment canceling and annulling the undertakings and purported permits of Sleezer, Koch, and Thomas to, engage in the business — 375 — of dealers in intoxicating liquors in the city of Winner. They were therefore “adverse” in interest to the relief demanded, and might have been named and served with process as defendants in the writ. The record discloses that on the return day the state’s attorney of Tripp county appeared as attorney for defendants named in the writ, and “by request of interested parties not made defendants to have an issue raised,” and filed a motion to quash the writ upon ground's named in the motion, which motion was overruled and exceptions taken. A careful examination of the entire record discloses no other person or persons save only the county commissioners, county auditor, and Sleezer, Koch; and Thomas, who were in any possible sense “interested parties not made defendants,” or who would be “adverse parties” as to the ■relief sought by the writ. The fact that Sleezer, Koch, and Thomas were not originally named as defendants in the application for the writ or in the writ itself is not material, in view of the fact that they were named in both as persons against whom relief was sought,' and might properly have been named as defendants when the proceedings were begun. It is apparent from the entire record that Sleezer, Koch, and Thomas as well as the county commissioners and county auditor were represented and appeared by the state’s attorney as well as other counsel, and thereby became “adverse parties” in the action. No objection or question as to their right thus to appear in the trial court is shown in the record, if, indeed, the relator might be deemed to have any right to make such objection inasmuch as the writ itself, issued on his application, specifically named them and sought relief adverse to their interests. The further fact also appears in the record that the judgment thereafter entered was adverse to their interests. Sleezer, Koch, and Thomas thus became parties to the record before the trial court, and, a judgment adverse to them having been entered by that court, it is clear that they became “parties aggrieved,” and are entitled to appeal from the judgment in so far at least as it affected their interests. Ricketson v. Compton, 23 Cal. 636; U. S. v. Armijo, 5 Wall. 444, 18 E. Ed. 492; Tattenham v. Superior Court, 155 Cal. 205, 100 P'ac. 248; Phillips v. Salmon River Co., 9 Idaho, 149. 72 Pac. 886. It is said in Elliott — 376 — v. Superior Court, 144 Cal. 501, 77 Pac. 1109, 103 Am. St Rep. 102, to be a settled rule of practice that only a party to> the record can appeal. But it is held that a person aggrieved by an order or judgment may become a party to the record by moving in the court below for an order setting .aside the allowance of a writ and may appeal from an order denying his motion. People v. Grant, 45 Cal. 97; Green v. Hebbard, 95 Cal. 39, 30 Pac. 202. And it is only essential in such cases that in some way his interest be made to appear by the record. Estate of Crooks, 125 Cal. 459, 58 Pac. 89; State ex rel. Graef v. Forest County, 74 Wis. 610, 43 N. W. 551. He must have taken some steps necessary to make himself a party to the record in the lower court which may be. done without any special formality. Tattenham v. Superior Ct., supra. Appellant further contends that the court erred in entering judgment in favor of relator, in that neither the application for the writ nor the writ itself discloses that the relator, Cook, is a party beneficially interested, or has any right to maintain proceedings in certiorari. [7] The question 'that the relator had no beneficial interest was not raised in the court below. It was raised, for the first time, in this court, by the reply brief of appellants. The relator has been treated throughout the certiorari proceedings as a party beneficially interested, and it is now too late for appellants to say that he was not. [8] The objections made in the court below were "that said writ was improvidently issued in the first instance,” and “that said writ was issued contrary to laws as shown by the record and files of this action.” Such an objection was only available to> reach matters which could not be cured by amendment or otherwise. Th'e record is silent as to whether or not relator was a party to, or appeared in the proceeding sought to be reviewed. Piad the question been specifically raised in the court below, at the proper time, calling relator’s attention thereto, relator might have cured the objection by timely amendment. An objection which could have been removed in the trial comb, if made there, cannot be urged for the first time in the appellate court. We are clearly of opinion that the trial court was right in holding that the board — 377 — of county commissioners were without jurisdiction or authority to submit the question of the sale of intoxicating liquors at retail to the legal voters of the city of Winner or to receive or act upon petition for permits to sell, and that such acts are without jurisdiction and wholly void and of no effect. [9] We are also of opinion that the board were without authority to license or grant permits to Sleezer, Koch, and Thomas to sell intoxicating liquors at retail in the city of Winner, and, that Sleezer; Koch, and Thomas having voluntarily appeared and made themselves parties to the proceedings in the court below, that court committed no reversible or prejudicial error in revoking and annulling such permits. The order and judgment of the trial court are therefore affirmed.