6 S.D. 449 | S.D. | 1895
Lead Opinion
This is an appeal from an order of the circuit court for Minnehaha county overruling a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action was brought to remove said Thorne from the office of clerk of the circuit court for said county, under the provisions of §§ 1387,-1388, Comp. Laws; the ground of complaint being that, as such clerk, he did not account for, and pay over to the board of county commissioners, all the money received by him as fees and per diem in the years 1892 and 1893 in excess of $2,000 per annum, as required by the second proviso of section 10, c. 81, Laws 1890.
Sections 1387 and 1388 are as follows:
“Section 1387. All elective county, township and precinct officers may be charged, tried and removed from office for either of the causes following: 1. Habitual or wilful neglect of duty. 2. Gross partiality. 3. Oppression. 4. Extortion. 5. Corruption. 6. Wilful maladministration in office. 7. Habitual drunkenness. 8. For a failure to produce and account for all public funds and property in his hands at any settlement or inspection authorized by law.
“Section 1388. The board of county commissioners.in the name of the , county * * * may make such a charge and bring the action, and the circuit court .shall have exclusive original jurisdiction thereof. The proceedings shall be as provided in the Codes of Civil and Criminal Procedure.”
The first objection urged to the complaint by -appellant is that the complaint fails to show ‘ ‘that the action was brought by the board of county commissioners of Minnehaha county.” As more fully elaborated in the brief, the point is ‘ ‘that there is no direct allegation that this action was authorized or brought by the board of county commissioners of Minnehaha county, or even a recital to the effect that it is brought in the name of the county, by or under the authority of the board of county commissioners. This, we contend, is a necessary allegation or recital to disclose a capacity in the respondent to sue,
The argument is directed to that portion of the section which provides that in counties having a population of 10,000 or under the fees or compensation of the clerk shall be $1,500, and in counties having a population in excess of 10,000 it shall be $2,000 per annum; and the clerk is required to make a report to -the board of county commissioners, on the 1st day of January of each year, of all the fees and per diem received by him during the preceding year, and to pay over to such board all moneys so received, if any, in excess of the amount of compensation allowed by law, and the board of county commissioners is authorized to pay out any moneys so returned to them by said clerk of courts for the payment of any necessary clerk hire. The constitutional provision relied upon by appellant is as follows. “All laws relating to courts shall be general and of uniform operation throughout the state, and the organization, jurisdiction, power, proceedings and practice of all the courts of the same class or grade, so far as regulated by law, and the force and effect of the proceedings, judgments and decrees of such courts severally shall be uniform: provided, however, that the legislature may classify the county courts according to the population of the respective counties and fix the jurisdiction and salary of the judges thereof accordingly.” The particular objection to the statute relied upon is that the classification and adjustment of compensation according to population is unjust, arbi
This brings us to the first objection urged by appellant’s counsel. When the action is brought in the name of the county the board of county commissioners is alone authorized to make either of the charges specified, and to institute the suit to remove a person who has been elected to, and is occupying, a county office; and it will be observed that the charge must be made by the board, and the suit must be maintained in its corporate capacity, and not in the individual capacity of the members thereof, and that the county is not authorized to bring the action in any event. The necessity of the resolution, passed
Dissenting Opinion
I dissent from the conclusion of a majority of the court upon the last question discussed in the opinion, and upon which the case is reversed. While a complaint should always show a condition of facts which authorizes a plaintiff to sue, I am unable to see why an express allegation that the action in this case was brought in the name of the county, under the authority or direction of its board of commissioners, is essential, any more than in an ordinary action brought by and in the name of the county, under section 591, Comp. Laws,
The opinion says the complaint should contain an allegation that the board brings the-action. With the statute before us saying that when certain conditions exist an action shall be brought by the board, and with an action before us, the complaint in which alleges that the prescribed conditions do exist, brought in precisely the form required by the statute, a further allegation that the action is really brought by the board seems to me to be as unnecessary as an allegation in the complaint of any plaintiff that he really brings the action which his complaint shows he is entitled to bring, and which he seems to- have brought. The statute declares that certain acts or omissions by an officer shall constitute a cause of action against him, and authorizes the board of county commissioners to bring the action in the name of the county. The cause of action consists in the defined misfeasance. The right and duty of bringing the action are put by the statute on the board. Its
One of the powers of a corporation organized under our statute is to bring a suit in its corporate name, but this power, like other corporate powers, must be exercised by its board of directors. Comp. Laws, sec. 2926. This then, is equivalent to saying that the board of directors may cause suit to be brought in the name of the corporation, and this is just what is done in such cases; but an allegation in a complaint that such action was brought by direction and under the authority of the board of directors would be unusual, and in my opinion, entirely unnecessary, in the face of the fact that the action was really brought, and that it could not have been brought in any other way -than, by the board of directors. It would not be required that the complaint should anticipate and provide against a possible suggestion that the action had been brought, not by the board of directors, who had authority and who ought to have done so, but by some intermeddler, who had no authority and who ought not to have done so. So in the case-under consideration,, where the action is in the name of the county, which action could only be instituted by its board of county commissioners, the complaint states facts which made it the duty of such board to bring just such action in the name of the county as has in fact been brought, the complaint, in which is signed by the state’s attorney, the legal and official law officer and attorney of the county board, and there verified by the chairman of the board, I can see no good reason for requiring