166 N.W. 643 | S.D. | 1918
The plaintiff, who 'is respondent in this court, instituted! this action in mandamus to compel thie appellants, as defendants, to certify a money aisises’sment 'of 'benefits in relation to a drainage 'district -established under the statutes of this state. There was a trial to. the court lolf the islsues, and findings ainid judgment were iin- favor of plaintiff, and defendants appeal.
It appears from the record! that petition was filed therefor and a drainage district, known as -drainage district No. 21 of Sanborn counity, established, auidl 'that a contract was let to' Pence & Piier to oouslbruct the drain, which contract to Pence & Pier wlas thereafter ¡assigned and trainsf-erred itq the Woonsocket Drainage Company; that the board of county commissioners of San-born County thereafter issued to said Woonsocket Drainage Company, for services performed by it in constructing said drain, warrants to thie amount iclf about $8,000, which warrants were in 'substantially the following farm:
“South Dakota. $400.00. [Seal of Sanborn County.] No. 723. Ditch Warrant. Woonsloicket, Oct. 13, 1910. Treasurer of Slanbam Oounity, South Dakota: Pay to Woonsocket Drainage Co. or -bearer four hundred! and 00-100 dollars out of any unappropriated fund's belonging to ditch fund Na. 21. I3y order of the Board of Oclunlty Commissioners: E. E. Watsnauer. Chairman: of the Board of County Commissioners. Countersigned: Lewis Strand, County Auditor,---, Deputy.”
Said warrants were signed by the chairman of the county board and c'ounltersigned by! the count}'' auditor, and bore the seal df Sanborn county. Nel'rly $8,000, face value, of such warrants were assigned, transferred', and delivered by said Woionfs'ocke't Drainage Company to respondent, who became and now is the Owner thereof. It also appears that such warrants were i-sSued and! delivered to is'aliidl Woonsocket Drainage Company prior to the completion of said; drain; that no money assessment for benefits has ever been certified by the board of county com1
It is now urged that the judgment roll including- the pleadings in the injunction suit was not 'competent evidence to sustain the salid findings under the issues of this ca'se. While we are of the view that the judgment and proceedings taken in that case by the board of county commissioners', auditor, and treasurer were not conclusive, nor res adjudicate, as against them, still we •are of the view that the same was prima facie evidence in the nature of quasi judicial admissions from which all consequential inferences may be drawn that materially flow from the acts of said officers taken in said injunction action. Bank v. Duncan, 80 Idam. 196, 101 Pac. 992, 28 L. K. A. (N. S.) 327, 18 Ann. Gas. 78; Commonwealth v. Bridge Co., 216 Pa. 108, 64 Atl. 909, 8 Ann. Cas. 1073; Murphy v. Hindlman, 58 Kan. 184, 48 Pac. 850; Wigmore, Ex. § 1066. From the acts of 'said boaindl of county 'commissioner's, auditor, and treasurer, as shown by the judgment roll in the said injunction suit, it might be inferred that saildl board Of county comimssibners, in the exercise of their discretionary powers under tire statute, elected to and dlid make a valid and legal money assessment for benefits against each parcel
Other assignments of error have been made, all of which have been ooinsiidiereid. We are of the view that no prejudicial error exists therein, and that it will serve no useful purpose to further refer thereto.
Finding n-o error in the retíclrd the judgment appealed from is affirmed, with the modification', however, that previous notice by publication and posting, as required1 by section 5, c. 102, Laws 1909, be given to landowners and cithers affected by s'aid drainage dfitoh of the time when and where Said assessment will be certified to the county treasurer for collection, to the end that those who are required to play said! 'assessments may avail -themselves, if any thereof so dteisire, of Ibhe provisions of section 10, c. 102, Laws 1909, to pay sia'id inidiiviidluial assessments In ¿installments.
Costs on appeal will be awarded to respondent.