Hamaker v. City of Highmore

GATES, J. This is a mandamus proceeding to compel the city auditor of the city of Highmore to 'file, in the circuit court, a petition for the exclusion of certain lands from the city limits of Plighmore, which petition was theretofore filed in said city auditor’s office and was not acted upon by the governing body ’of the city during the 30-day period mentioned in section 6557, Rev. Code 1919. The trial court granted mandamus, from which order the city auditor appeals. The respondents have not appeared in this court. We assume that the trial court, in granting the writ of mandamus, construed the 'words “the petitioners may present their petition to the circuit court,” contained in said section 6557, to refer to the petition filed with the municipal corporation. Those words have been construed by this court in Weiland v. City of Ashton, 17 S. D. 621, 98 N. W. 87, to refer to a new petition, and not the one filed with the municipal corporation. In that case the court said'; “The petition presented to the circuit court should he entitled therein, designating the parties plaintiff and defendant; and, in order to confer jurisdiction, it must affirmatively appear therefrom that all the preliminary steps before the* city council have been taken in strict conformity with the statute. Without such a peti [58] tion in the circuit court as the statute contemplates, and in the absence of anything to show compliance with its requirements as to notice, and the presentation of a petition to the city council, the motion to dismiss ought to have 'been sustained.” The matters that this court held must be contained in the petition to 'be filed in the circuit court could not appear from the petition filed with the municipal corporation. Manifestly a new and different petition is contemplated' toy said section 6557 as so interpreted. In appeals from decisions of the board of county commissioners, the county auditor is required to “make out a complete transcript of the proceedings of the board relating to the matter of its decision and deliver the same to the clerk of courts.” Rev. Code 1919, § 5887. Similar procedure is required in the transfer of other proceedings from a tribunal to a court. In this kind of proceeding, however, there is no provision of law requiring or even authorizing the city auditor to transmit the petition to the circuit court. In the absence of such requirement or authorization, the petition filed with the municipal corporation should remain a file of the city auditor’s office. The order appealed from is reversed, with directions to dismiss the proceeding. McCOY, J., not sitting.