3 S.D. 154 | S.D. | 1892
This is an appeal from a judgment of the circuit court adjudging illegal and void the proceedings of the town board of supervisors of Sioux Falls township appropriating $5,500 for the improvement of four certain highways in that township; also adjudging illegal and void the proceedings of a special town meeting of said town held for the purpose of appropriating said sum of $5,500 for the purposes aforesaid, and ratifying and confirming the acts of said town board of supervisors in making said appropriation; and also adjudging illegal and void certain town orders issued for $1,300 by the said town supervisors on account of the improvement of said designated highways. The records and proceedings of said town supervisors, said special town meeting, and the treasurer of said town were brought before the court below for review by writ of certiorari. From the returns and supplemental returns to said writ it appears that on March 31, 1891, at a regular meeting of the board of town supervisors of said town, a resolution was adopted by said board-levying a road tax of five mills on the .dollar upon- all property in said- -town; and that at the same meeting a resolution was adopted appropriating $5,500 for the repairs and improvement of four designated highways in said town. It further appears that said board had issued town orders for $1,300 on account of said improvements, which had been paid by the town treasurer before the issuance of the writ
The learned counsel for the appellants contend — First, that the town supervisors were authorized to make the appropriation for the purposes specified; and, second, if not so authorized when the resolution was adopted, the act was made valid by the subsequent appropriation made by the electors of the township at the special town meeting, and by ratifying and confirming the acts of the supervisors, as the electors at such special town meeting had full power to make the appropriation, and full power to ratify the act of the board of supervisors in making the same. Two questions are therefore presented for our consideration: First. Had the town board of supervisors authority to appropriate the amount specified for the improvement of the designated highways? Second. If not, had the electors power at a special town meeting to appropriate the amount, and ratify and confirm the acts of the town supervisors in making the appropriation ?
It will be obseryed that the electors at their special town meeting did not vote to raise any fund, but simply assumed to appropriate the $5,500; but out of what fund does not appear. Assuming that the electors at the special town meeting had the same power to vote to raise a road and bridge fund as at the annual town meeting, — but without deciding that question, — still we thinlr they had no power to appropriate the sum named, except in connection with a vote to raise the amount by taxation. If there were funds in the hands of the town treasurer-derived from delinquent highway labor and road taxes collected by the county treasurer, or from surplus highway labor and road taxes paid over to the supervisors by overseers of highways, the supervisors were authorized to expend such fund upon the roads and bridges without a vote of the electors. If there was no such fund, then no appropriation could be made by the electors, unless the amount was first voted to be'raised by the said electors. As before stated, the electors, at their special town meeting, did not vote to raise the $5,500 by taxation, but assumed to appropriate that amount. As we have seen, they could not appropriate the ordinary town