141 N.W. 382 | S.D. | 1913
This cause is before us upon rehearing. The former opiinion of this court is found in 30 S. D. 336, 138 N; W. 959, to which reference is made for a statement of the questions involved and copies of the statutes referred to.
As before stated, we are of the opinion that article 721,. being section 9 of the original/ act of 1895, was merely added in order that the act might cover the cases of subcontracts (whether such subcontracts were made before or after the passage of the act), where the principal contract had been let before the a-ct was passed, and that, when this act was incorporated into the Revised Codes,
' The Legislature may dispense with the organization of drainage districts and vest the corporate authorities of counties, townships, and municipalities with such powers. It would seem equally clear that in such cases the acts of the corporate authorities would be the acts of the county, township, or municipality. The Legislature chose the second alternative and vested such powers in boards of county commissioners. A careful study of the present, drainage laws convinces us that under such laws -the county is the legal entity, and that in doing such work the county commissioners are engaged in county work. State ex rel. Viking Twp. v. Mikkelson (N. D.) 139 N. W. 525; Reed v. Heglie, 19 N. D. 801; 124 N. W. 1127; Flagg v. Bradford, 181 Mass. 315) 63 N. E. 898; Davenport v. County of Dodge, 105 U. S. 237, 26 L. Ed. 1018: Bates County v. Mills, 190 Fed. 522, 111 C. C. A. 354; Words and Phrases (under “Corporate Authorities”) ; 32 Cyc. 1256 (under “Public Work”). Therefore, funds accruing -in drainage matters are funds which are in the control of the county.
Such being the case the respondent was clearly entitled to a lien upon any moneys arising from the drainage proceeding due or to* become due the principal contractor, the appellant, at the time of filing its lien. The complaint stated a cause of action against the county.