Independent Publishing Co. v. Stanley County

McCOY, J. Plaintiff and respondent is the publisher of a newspaper known as “The Pair Play,” published at Ft. Pierre, Stanley county. Under the provisions of section 2207, Pol. Code, as amended by -chapter 246, Laws of 1911, -the respondent ‘pub [485] lished some 24 notices of application for issuance of tax deed, and presented to the board of county commissioners of Stanley county a bill for publishing such notices, and which bill was allowed by such board. . Thereafter, upon the application of certain taxpayers of ^aid county, an appeal from the action of the said board in allowing said bill was taken to the circuit court of said county, and a trial in the circuit court resulted in an affirmance of the said action of the board of county commissioners. The contention of the appellant is that under the provisions of section 2207, Pol. Code, as amended by chapter 246, Taws of 1911, no one was authorized to make such publication, or direct in what newspaper the same should be published but the county treasurer, and that the county treasurer in said county never in any manner authorized the plaintiff to publish said notices, and that the said publications were made wholly without authority of the said treasurer, and therefore not a proper or legal charge against the said county. On the trial of said cause the court, among other things, made the following finding of fact: “That during the months of January, February, March, April, May, and June, 1911, the office of the county treasurer of Stanley county was behind in its work, and the same was not being kept up, and the treasurer was late several months in the issuing of his tax receipts and other work of his office. That on or about the 1st day of March, 1911, the county treasurer was called upon by the board of county commissioners as to what steps were being taken, or about to be taken, in regard to taking of tax deeds to said lot®, and the treasurer stated that he believed that it was the duty of the county auditor to attend to this work; later on, at the March meeting of the board of county commissioners, the said cóunty treasurer informed the board that it would be impossible for him or his force of employes to do the necessary work required to- prepare the notices, and to issue tax deeds; that more help was required in his office. The board of county commissioners then appointed one of their number by resolution duly entered on the records of the minutes as a committee to act, with the state’s attorney, to attend to the work necessary in securing the tax deeds. The Plonorable George D. Mathieson, of the board, was made a committee by the commissioners. The lots for which tax deeds were to be taken were all situated in the city of Ft. Pierre, and the lien for taxes [486] on these particular lots would expire and be barred on July I, 1911; the board of county commissioners thereupon appointed one L,ee Aldrich, an expert accountant, to prepare the necessary data, and to ascertain -the amount of taxes, penalty, and interest due on these lots, and to ascertain what lots it would -be necessary to commence proceedings on before the 1st of July, 1911; and Lee Aldrich, with the aid of the state’s attorney, then did proceed to ascertain from the records, and from the office of the treasurer of Stanley county, all the data necessary with which to prepare the notices, and the notices were prepared by the state’s attorney. That George D. Mathieson directed such notices as covered worthless lots to be laid aside and not published, such lots being property along the river and slough, and had become a part of the river. That Enoch McKay, the treasurer of Stanley county, left this work entirely in the hands of Lee Aldrich and the state’s attorney and George D. Mathieson. That the treasurer knew at all times that the work was being done bj? the said Lee Aldrich, George D. Mathieson, and the state’s attorney, and the treasurer acquiesced and approved their acts and doings, and on the joth day of June, 1911, while in the office of the state’s attorney, and in the presence 'of the deputy state’s attorney, George Philip, the said county treasurer signed all of the tax notices involved in this case, and left the said tax notices in the office and in the hands of the said state’s attorney. That on the 16th day of June, 1911, the state’s attorney, by his deputy, George Philip, delivered said notices involved in this case to Fred Mix, editor of the Fair Play, for publication. That at the time the tax deed notices were delivered to the Independent Publishing Company for publication about 90 per cent, of the work and - materials necessary to print and publish the tax deed notices involved in this case, and other tax deed notices, had been done and furnished 'by the Independent Publishing 'Company, and about $600 had been actually paid out for materials. That George D. Mathieson, a member of the board of county commissioners, had, as a committee of the board of county commissioners, directed the Independent Publishing Company to prepare for -the printing of said notices, and in response to said directions the Independent Publishing Company -had procured materials preparatory for the printing of the notices; and, when the notices were handed to the Independent Publishing [487] ■Company for publication, the work was all done, with the exception of placing in the correct name and number of lots, as found in the original notices, the blank notices having theretofore been printed and prepared by the Independent Publishing Company at the request of the state’s attorney of Stanley county. That the work of preparing these notices and the publication thereof had •been intrusted by the said Enoch McKay to the said George D. Mathieson, Tee Aldrich,' and the- deputy state’s attorney. That the treasurer was cognizant at all times of -what, Lee Aldrich, George D. Mathieson, and the state’s attorney were doing with reference to the publication of said notices, and that the acts of the said George Philip, deputy state’s attorney, in delivering said tax notices to the Independent Publishing Company for publication in The Fair Play, were in fact, the acts- of the county treasurer of Stanley county, S.. D.” Whether or not -the said county treasurer authorized the publication of said notices in plaintiff’s paper was one of the disputed questions of fact to be tried before the court. We have carefully examined and considered all the evidence preserved in the record; and, while there is a very sharp/ conflict touching the question as to whether or not the said treasurer authorized the publication of aaid notices in plaintiff’s paper, we are of the opinion that there was sufficient evidence to sustain the said finding of the court. This court has frequently held that findings of the trial court based on conflicting testimony will not be disturbed, unless against ■the clear preponderance of the evidence. Finding no error in the record, the judgment appealed from is affirmed.