*1 Our attention is directed re to authorities which cognize a distinction criminal civil between acts dealing separability. with the doctrine of rule The of strict exemplified by appli construction cable those is authorities jurisdiction. apply this The rule must we penal according “all statutes are to be construed to the fair import objects terms, of their with a view to effect their promote justice.” 13.0101. If rule of strict applicable here, construction were it if is doubtful it would support a different result in this instance. petitioner prosecuted is,
The act under which was opinion, patently in our so constitutional that we questions appellant’s labored other discussed brief. judgment of- trial court affirmed. Judges
All the concur. Appellant JACKSON, v. BOARD OF COUNTY COMMIS al., SIONERS FOR PENNINGTON COUNTYet Defendants Respondent FELLOWS, Intervener and (81 686) N.W.2d (File Opinion 1957) No. 9592. filed March
Rehearing July 31, denied *2 City, Appel- Rapid for Plaintiff and Costello, Hanley & lant. City, Rapid Bottum,
H. F. Fellows, Roswell Respondent. complaint ROBERTS, for writ J. Plaintiff his alleges of a tract land that he is owner mandamus public highway; having the tract 'con- no to a -that access taining used for residen- at five acres is intended least ap- plaintiff purposes; made tial that on December County Pennington plication to defendant commissioners adjacent acquire land an easement across copy public highway, is at- which to reach complaint describing tached and made adjacent highway be laid as owned over Fellows; refused F. and that board H. authorizing acquiring proceed of a statute to right under the *3 way public highway. to a An from an isolated tract of commanding lay issued de- of mandamus was alternative writ given, causing proceed to be to out to notices fendants damages adjacent property, way, right the to the of assess a and otherwise perform prescribed or the duties statute why they H. F. Fellows not done so. cause show Collins, Defendants Whitehead leave to intervene. obtained purporting filed to be returns Ham served and affidavits and question they premises in that the to -thewrit wherein state voluntarily plaintiff line; isolated a section that abuts conveyed adjoining- isolated, when he tract, if the be same way reserving right thereto; that a of said land without deny application. Defendants El- defendants voted to lingson affidavits served and state their and MacVicar proceed they of a motion to voted in favor filed herein that way compliance right acquiring with the of of a with the plaintiff. request of the of herein moved for dismissal
Intervener upon founded which it is reasons -that statute for the complaint to state and that fails is unconstitutional granted. upon issues were relief can claim proceedings resulting court, in a dismissal to the tried authorizing laying upon ground out that the statute way adjoining the consent over lands without of of of owner is unconstitutional. 101, Laws as Ch. 28.0801 amended
SDC every provides of an isolated tract land con- “of that owner taining be used used intended to at five acres least good purposes faith in whole or residential is right way adjacent entitled to an easement or of across lands public highway.” provides to reach a 28.0802 SDC whenever an is made of the owner county lay isolated tract to the board of commissioners to thereupon out a of the board “shall cause adjacent served owner owners” of the land “a writing notice in time of a when such board will visit such lay right way surrounding land and out one of across such damages land, therefor, and assess the which notice shall be days prior at five served least date set for visit such appraisal.” provides day 28.0803 appraisal proceed fixed for the visit and the board “shall place lay right way twenty-five named, to the shall out a feet in width from such isolated tract across sur- rounding public highway, doing lands to a and in so shall parties. consider the convenience of the it Wherever practicable right way so, to do such board shall along government line or the section line fractional they subdivision of a section and shall assess and determine damage which such owner the the they laid, land across which it is shall file with report proceedings auditor a -full of all their in the *4 premises, county and the auditor shall record same in the highways.” provides his record of 28.0804 SDC that payment damages the the to of the sum assessed as or refusal of right way
owner of land over which of is laid accept deposited the amount with the clerk of “the courts right of the owner of such isolated tract the free to use of right complete”. said of be shall The last section chapter, gives 28.0807, SDC to the owner of the land right way right appeal over which the is laid a to the damages”. circuit court from “the decision and assessment of Plaintiff contends that intervener has no such interest proceeding compel in this mandamus to the board of per- to commissioners out a and otherwise prescribed by permit form tion; duties statute as to interven- by remedy appeal exclusive; that the is inter- question constitutionality vener not to was entitled question the statute. The constitutional is before us.
499 question presented the trial The sole whether or not is properly granted court leave to intervene. timely provides 33.0413 “anyone permitted to inter before trial shall be proceeding interest in the
vene in action or who has an party, litigation, or an matter in in the success of either against limit the interest both.” This section does not any particular of actions to intervene to kind class “proceeding” proceedings. has The word .reference every special provided by proceedings statute and includes remedy comprehend judicial application to a court 33.0102(1). Mandamus is term ed in the “action”. SDC sufficiently proceeding is broad Section 33.0413 such a proper showing permit under intervention therein when a presented. the statute party pending a third to intervene in may permitted absolute, is not but
*5 action or satisfy petitioner shows facts which leave of court when requirements An intervener must 33.0413. of Section litigation, in the in matter in have an interest thereunder against parties both. or an interest' either of the success of These provisions 109, State, v. S.D. in McClellan as stated origin 1037, the territorial statutes their had N.W. (§ 1877) 90, C.C.Proc., and were first c'onstrued Rev.Code Frazier, 138. The United Dak. N.W. Gale Supreme Court, Gale, 144 U.S. 12 S.Ct. States Smith v. affirming judgment 674, 676, of the ter 36 L.Ed. provisions court, “These Dakota Code ritorial said: states, are found in the of several above cited Codes originally adopted appear Louisiana, have been from interpreting supreme court, it is wherein held party section, entitles to in that the interest which similar intervening interest, be a direct which tervene must party or suffer loss to obtain immediate original judgment rendered between parties. Gasquet v. Johnson, 1 La. [425] 431. In Horn v. [Volcano] Water Co., 13 Cal. 62, [69] supreme court of provision of the similar to construe a had occasion California through speaking held, Mr. Justice state, and of that Code court, ‘the interest Field, member of this now 500 person
mentioned
inter-
in the statute which entitles a
parties
vene in a suit
other
between
must be in the matter
litigation,
in
and
a direct and immediate character
such
legal
gain
that the intervener
either
or lose
will
the direct
* **
operation
judgment.
and effect of
an
Th authorize
intervention, therefore, the interest must be that created
[the
part
suit,]
a claim to
in
demand or some
thereof
or
upon
property,
part thereof,
suit,
lien
or some
in
or a
property,
part thereof,
claim or
some
lien
subject
or
”
litigation.’
Young,
which is the
See also Yetzer v.
McClurg
Bindery
263,
1064;
Co.,
S.D.
52 N.W.
v. State
362,
S.D.
In 39 61,§ rule stated as follows: “While the differ, intervention statutes there is states general concurrence that the decisions interest which person parties entitles to intervene in a suit between other litigation must be in the matter in immediate character that and such direct and
the intervenor will either legal operation judg- or lose the direct and effect of the arising ment. The interest must be one from claima to the subject part matter of thereof, the action or some or a property lien thereof; or some one whose interest stantial the matter of a direct sub- inconsequential, interest, indirect, but is an or con- tingent one, cannot intervene.” only
The interest must be direct rather than consequential, proper but must be interest as is to be determined the interven sought. Jones, tion is Jersey 793, 1101; Isaacs v. 121 Cal. 53 P. Brock, Maid Milk Products v. Co. 13 Cal.2d Railway 599; Cal.App. P.2d Co., Faus Pacific Electric 2d 285 P.2d 1017. county
Plaintiff in his filed with board complaint forth set in his there states is “no reasonably practicable feasible location or site for ease- purposes” ment for road access to his premises except across the land owned intervener. SDC authority upon 28.08, indicated, as we have confers proper application, board, on out a public highway appraise from an isolated tract ato *6 by damages adjoining the an offer to land there is when damages. applicant county pay The as to the amount assessed basis in matter and the discretion board has no present proceeding com- the board of the is that by discharge pelled therein the duties writ of mandamus to right prescribed. to tract the isolated of the owner of way express right terms of use of the of under payment complete of either statute becomes damages over of the land to the owner sum assessed as way right deposit thereof of is laid or with accept payment. The refuses clerk of courts if the owner argument to is that intervener in this connection advanced litigation to out effect demand a the matter in in way right at the time of his land and that record across entitling filing an interest of the of his disclosed him to intervene. has 33.0413
The interest referred in Section legal meaning entitle a we have To definite as indicated. party pending must have an in suit he third to intervene litigation to be matter about which the interest and immediate character that and of direct operation effect either or lose the direct will say, judgment; an is to he must have interest proper The matter determined therein. which is present proceeding there is whether or not justification legal of the board for the refusal was to perform specified As to the statute. duties certain legal plaintiff aspect easement naked way premises, intervener has no interest to his complaint for of mandamus did If the writ whatsoever. allege interest, not have been the court would a direct probable use of intervener’s land concerned with right way. if more It is there were two or obvious right could have been over which a owners located a only county board, an owner would probable consequential property use interest of his Spring plaintiff prevailed. & In La Mesa Lemon Grove if Valley Halley, P. Irr. Dist. Cal. irrigation sought district to intervene of an residents
certain brought by the district to com- m mandamus *7 pel sign its officers to and attest bonds. certain The court petitioning “It said: is difficult to see how the interveners by gain any judgment may can or lose which be entered proceeding. granted, in that If the writ be the enforcement judgment directly property of the would not affect their in- signed bonds, terests. The attested, when and not would property, although, they be a lien on sold, their if thereafter * * * may lead to the creation of a lien. Nor would com- pliance upon writ, issued, with the if create a cloud their ordinarily title.” An intervener must take a suit as he may scope it. finds He not broaden the function proceeding. C.J.S., Mandamus, mandamus § 254. Inter- herein, words, vener in other would in the absence of the allegation position aforementioned have stood in the of one directly interested in matter in which would be immediately by operation judgment. and affected brought ownership
Plaintiff
the fact of
and
litigation.
direct interest of intervener into the
The situa
inject
permitted
tion
not one
where intervener was
proceeding.
purpose
matter extraneous to the
vention is to obviate
The
of inter
delay
multiplicity
and
of suits
creating
opportunity
directly
persons
an
interested
subject
join
already
proceeding
matter to
in an action or
good
appears why
instituted. No
reason
claim inter
The fact that
adjudicated.
vener should
have
been
may
protected
pursuing
his
another
remedy
denying
is no
for
him
reason
to intervene.
Taylor
Volga,
v. Bank of
S.D.
The from is affirmed. SMITH, J„ HANSON, J.J., P. RENTTO concur. Judge (dissenting). RUDOLPH, seeking compel This is a action mandamus County petition plain- Commissioners to act which provisions tiff filed under the 28.08. attempt compel here is to action the Board. deny might petition proceedings Board
The under the statute. or start only
It would that event started to establish a Board across intervener’s interested, but would become that intervener entirely upon action something dependent the future for might the Board take. Estate, 27 S.D. In re McClellan’s
In the case of present questions that two held this court N.W. First, intervention. themselves litigation? Second, inter- has the real matter is the what vener any matter, of such direct in the such interest lose character, will either he immediate any judgment operation legal and effect direct litigation in this matter in entered? The real *8 simply require Should the Board. some action is plaintiff only judgment be successful any parti- Board, requiring action entered is one simply action, character. action of some but cular being the the Board. Such be left to kind action must that interest I am convinced of this have character does not immediate direct and permitted. should be that intervention matter in Commencing Frazier, 4 Dak. v. case of Gale with the case has in the McClellan the rule announced 30 N.W. holding my present opinion to. It adhered been is a departure from that rule. Appellant Respondent WHITE,
WHITE, 606) (81 N.W.2d 1957) (File Opinion filed March No. 9591.
Rehearing April 9, denied