Rex Township v. Bailey Township

POLLEY, J. Plaintiff and defendant in this action are organized townships in Lyman county. Originally the township comprising both townships constituted Rex township alone. In. April, 1922, the township was divided, and a portion of the township was org-anized as Bailey township. After such organization was completed, the county and the two’ townships proceeded under the provisions of section 6039, Code 1919, to make an adjustment and settlement of their affairs. A board of adjustment was appointed as provided by said section, and such board, after considering the affairs of plaintiff and defendant made and filed a report as follows: “We, the undersigned, having been legally appointed to act as a board of adjusters in the matter of the division of the assets and liabilities, including all personal property, in accordance with the assessed valuation of the new township of Bailey and the new township of Rex, have this day met in session at Oacoma, and decided that the fair and equitable settlement shall be made on a basis of 40 per cent and 60 per cent, respectively, as the valuation of Bailey township is $403,723, and the valuation of Rex township is $603,354; the total valuation is $1,007,077, making the ratio approximately 40 to 60 and that the outstanding indebtedness of old Rex township, being $2,400, shall be assumed by the new township on this basis, equaling $960 and $1,440, respectively, and that the personal property shall be divided as follows, to wit: [309] “Bailey township shall receive 2 5-foot old Fresno scrapers, one (1) 4-foot new Fresno, one (1) old road grader, nine (9) old slip scrapers, one (1)' good road plow, and shall receive for its share of desk and other office equipment $7.50. “Rex township shall receive 2 4-foot new Fresnos, 1 5-foot old Fresno, 1 old wheel scraper, 3 new slip scrapers, 2 old plows, desk and office equipment. “Signed by the individual members of the board. “A. E. Bailey. “R. O. Miller. “F. I. Sheffer.” The provisions of the report were carried out by plaintiff and defendant, except in the item of $960. The plaintiff paid the entire indebtedness of $2,400, and called upon the defendant for the sum of $960, as agreed upon by the adjusters, and, upon defendant’s refusal to pay the same, plaintiff brought this' action for the recovery thereof. In its answer defendant alleges that the settlement shown by the said report is not the settlement that was made by the board of adjusters; that the board of adjustment did not have present at its meeting sufficient data to determine the true state of affairs of said township, and that it was agreed by the members of said-board that there should be a meeting of the boards of supervisors of the two townships to adjust the “road and bridge indebtedness upon a basis of each township being chargeable for the work and material furnished within its boundaries, but, by oversight or mistake in drafting the said adjuster’s report, this latter provision was omitted from said report as signed and filed, * * * and said report is therefore incomplete and incorrect, and is not in fact the true determination and adjustment made by the board of adjustment formed for that purpose;” that all of the outstanding indebtedness attempted to be adjusted by the 'board by adjustment was indebtedness incurred for road and bridge work in Rex township prior to the division, and “that, had the said indebtedness been apportioned in accordance with the determination which said board of adjustment did in fact make, and which they intended to express in their written report, the sum of road and bridge work for which this defendant would be required to pay would not exceed the sum of $480. [310] The defendant further alleges that it has requested the board of supervisors of plaintiff to meet with its 'board and complete the adjustment, but that such board has refused to meet with defendant’s board. In its prayer for relief, defendant asked that the report of the adjusters be reformed and corrected, SO’ that it will express the real determination of the adjusters, or that the court remit the said report to the original adjusters, or that a new board be formed for the purpose of adjusting the affairs of the two townships. To this answer plaintiff demurred, and, from an order sustaining such demurrer defendant appeals. At the outset we are met with a question of practice. Appellant, assuming that it was not necessary for a civil township to file an undertaking on appeal, did not file an appeal bond, and respondent now moves to dismiss the appeal, because no such bond was filed. Respondent directs, our attention to Dring v. St. Lawrence Tp., 23 S. D. 624, 122 N. W. 664, where this court held that an organzied township was not required to furnish an undertaking on appeal to this court, but says the question was not given adequate consideration on that occasion. Respondent’s motion is based upon the provisions of sections 3161 and 6154, Code 1919. Section 6154 reads as follows: “Except where a different intention plainly appears, the phrase ‘municipal corporation’ as used in this part shall be construed to embrace all cities and towns organized as such under the general laws of this state or special acts of the territorial legislature, but not to include any other local, political subdivision. This provision of the law does not include civil townships, and in view of this provision we believe the court was wrong in its holding in Dring v. -St. Lawrence Tp. But the opinion in that case was handed down nearly 20 years ago. The question of the necessity of a bond, in an appeal taken by a civil township, was squarely passed upon in that case, and, since the question is one of procedure only, we think the rule of stare decisis should be applied, and that appellant’s appeal should not 'be dismissed because of having relied upon a decision which has stood unquestioned for so many years. Section 6039, Code 1919, specifically sets out the manner of dividing the property and adjusting the liabilities of townships in cases like this. It is clear from the provisions of this section [311] that the 'board- of adjustment alone has jurisdiction to- make the adjustment, and its report, in the absence of’fraud or mistake, when made, is final. This precludes the court or the boards of supervisors of the respective township from making the adjustment. It is alleged in the answer, and admitted by the -demurrer, that the report, as' signed and filed by the board of adjustment was not complete and does not correctly state the determination of such board. This being the case, the board ought to be required to reassemble and complete the adjustment. No complaint is made of the division that was made of the personal property, and that division need not be disturbed. But the indebtedness may be readjusted, and such readjustment, if made, may, if necessary, be enforced by the court. The -case will be remanded to the trial court, with directions to proceed in conformity with this opinion. SHERWOOD, P. J., concurs. MISER, C., dissents. MORIARTY, C., acting in place of BROWN, J., disqualified. MISER, C., acting in place of BURCH, J., disqualified.