23 S.D. 624 | S.D. | 1909
It is disclosed by the pleadings and evidence that in April, 1891, the' electors of the defendant township attempted to authorize the issuing of bonds for the purpose of constructing artesian wells agreeable to the provisions of chapter 80, p. 196^ Laws 1891; that on January 7, 1893, township bonds to the amount of $5,000 were delivered to Thomas Dring; that nothing has been paid on account of such bonds except annual interest from 1893 to 1898, inclusive, and $490 paid to the plaintiff in February, 1905;
Respondent moved to dismiss the appeal on the following grounds; (1) That the attorneys who perfected the same were not authorized to appear for the defendant; (2) that “the files and papers on the purported motion for a new trial were served and filed after the time allowed by law had expired and without any order of court or good cause shown”; (3) that no proper bill of exceptions was ever settled or allowed; (4) that the lower court made no order fixing the amount of an undertaking on appeal; and (5) that no undertaking on appeal has been served or filed. As we understand the record, there is no foundation in fact to 'support the first ground of the motion. The second ground is untenable because an appeal lies from a judgment in absence of any application for a new trial. The same is true of the third ground, a bill of exceptions not being essential to an appeal from a judgment. And the fourth and fifth grounds are without merit because no undertaking was required. Rev. Code Civ. Proc. § 445. So the motion to dismiss cannot be sustained.
• Respondent insists there are no reviewable assignments of error because what purports to be a bill of exceptions, not having been properly settled, was suppressed by the circuit court. Among
The contention that the defendant corporation was not authorized by the statute to incur debts for the purpose of constructing artesian wells clearly is untenable. Chapter 80, p. 196, Laws 1891, was entitled “An act authorizing civil townships to sink artesian wells for public purposes and to issue bonds therefor.” The act itself cannot be otherwise construed than as authorizing the construction of artesian wells at public expense, and as authorizing the issuing of bonds for the purpose of constructing the same. There was not, therefore, so far as the statute is concerned, a total want of power to incur obligations arising from the construction of artesian wells for public purposes. Section 4, article 13, of the state Constitution, is as follows: “The debt of any county, city, town, school district or other subdivision, shall never exceed five per centum upon the assessed value of the taxable property therein.' ■In estimating the amount of indebtedness which a municipality or subdivision may incur, the amount of indebtedness contracted prior to the adoption of this Constitution shall be included.” In a case strikingly analogous to the one at bar under a constitutional limitation in effect the same as the one here involved, the Supreme Court of the United States, speaking by Mr. Justice Miller, used this language: “The language of the Constitution is that no city, etc., ‘shall be allowed to become indebted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the-value'of its taxable prop
The judgment of the circuit.court is reversed, and a new trial ordered. •