Gordon v. White

POLLEY, J. This is a proceeding instituted under the authority of § 1988 Rev. Pol. Code. It was brought for the purpose of testing the validity of a vote at the Municipal election held in the City of Yankton, in April, 1913, on the question of issuing retail liquor licenses in that city. The contestant named as defendants: the City of Yankton, the Mayor, the Members of the Board of City Commissioners, and the City Auditor. The trial court found for the contestant as against the City, the Mayor, and the Commissioners, but without costs, and dismissed the contest ■ it contestant’s cost as to the City Auditor. The Mayor, the Commissioners, and the City appealed from that portion of the decree which, declared the election illegal: 145 N. W. 439, 33 S. D. 42, and the contestant appealed from the portion thereof which dismissed the proceeding against the City Auditor, and allowed him to recover his cost; and also- the portion thereof which denied contestant his cost as against the other defendant. [1] In dismissing the case against the Auditor, the trial court based his conclusions upon the authority of Lindsay v. Boyden, 18 S. D. 379, 100 N. W. 761. While that case is not in all respects parallel to this, what is said there relative to county auditors applies with equal force to city auditors. By §1244 Rev. Pol. Code, it is made tíre duty of the city auditor to: “Keep corporate seal, and all the papers and records of the city, and keep a record of the proceedings of the city council whose meetings it shall be his duty to attend.” , At the time this case was commenced, ‘the election had been held-, the vote canvassed, and the result declared. Nothing remained to be done but to decide who was to be allowed to engage in tire liquor business and to issue permits to such person. Both these duties devolved upon the Board of City Commissioners: Rev. Pol. Code, §§2855 and 2858 and nothing remained for the auditor to do but to keep a record of these proceedings. The relief prayed for by contestant, in addition to declaring the election void, was that the defendants: “Be restrained from issuing permits for the sale of intoxicating liquors,” etc. This involved no act that the auditor c'ould perform or over which he 'had any authority. The acts that contest [46] ant asked to have restrained did not come within the purview of the auditor’s duties, and, therefore, there was m> -reason why he should have been joined as a defendant. Hie was neither a necessary nor proper party tO‘ the proceeding, and, as to him, it was properly dismissed. [2] By § 1992 Rev. Pol. Code, it is provided that: “* * * All matters relating to the said contest shall be heard and tried by the circuit court or judge thereof in the manner that civil actions are tried, except as otherwise provided in this article, and the costs shall be taxed in the same manner as in civil actions; and the court or judge thereof shall have all the power of ordering amendments to notice and answers and other proceedings as provided in the Code of Civil Procedure, and the court or judge thereof shall have power to enter all orders and final judgments in such contests the same as in civil actions.” Prom this and §1999 Rev. Pol. Code, it is clear that the procedure in this class of cases is to be governed, except where it conflicts with the special provisions found in the Pol. Code,, by the provisions of the Code of Civ. Proc. This includes the allowance and taxation of costs, and the trial court was justified in awarding costs to the city auditor. [3] The refusal of the court to award costs ‘in favor of the contestant as against the defendants, other than the city auditor, is based upon the ground, as stated in the court’s conclusions of law: • “That costs are statutory and there is no statute whereby contestant can recover costs under the facts 'here presented, nor can costs be recovered against public officers or boards except in cases of official delinquency or wrong doing, neither of which has been shown to exist here.” In this conclusion, we 'believe the court is wrong. We believe the provisions of §1992 are broad enough to entitle the contestant to recover his costs as against these defendants, but if they, are not then the provisions of §1999 are. This latter section reads as follows: “Except as otherwise provided in this article the provisions of part 2 of the Code of Civil Procedure are. applicable, and constitute rules of practice in the proceedings mentioned in this article.” [47] And §415, which is found in part 2 of the. Code of Civ. Prop., reads as follows: - “In all actions and special proceeding's, the clerk must tax as a part of the judgment, in favor of the prevailing party, the allowance of his witnesses, the jury, officers’ and printers’ fees, the compensation of referees, and the necessary expenses of taking depositions, and procuring necessary evidence.” Rut it is contended by respondent that this proceeding is neither an action nor a special proceeding, as contemplated by the terms of § 415; that § 415 was in force long before we had any statute providing for election contests, and that, therefore, “special proceedings” as used in §415 has reference only to such special proceedings as are mentioned in part 3 of the Code of Civ. Proc. In this contention, we believe respondent is wrong. § 4x5 being in force at the time the statute providing for election contests was enacted and being included in Part 2 at that time, is as much within the purview of §1999 as any other section to be found in part 2 of the Code of Civ. Proc.; and therefore the prevailing party is as much entitled to recover his costs in a proceeding brought under §1988 of the Pol. Code as in any other “action” or “special proceeding” as the same is used in §415 Code of Civ. Proc.. and it is the duty of the clerk to tax such costs as provided for in this section. From this it follows that the trial court was right in dismissing the action against the city auditor and awarding him his costs; but was wrong in refusing to award costs as against the other defendants. That part of the judgment which dismissed the action as to the city auditor at the contestant’s cost is affirmed; and that portion of it which denied the contestant costs as against the other defendant is' reversed. But, inasmuch as all the defendants appeared by the same counsel and presented their case on the same brief and both parties have prevailed in part on this appeal, no costs will be allowed in this court.