207 N.W. 459 | S.D. | 1926
This is a proceeding in which the county commissioners of Yankton county, S. D., sued for a writ of mandamus to require the defendant, P. J. Ericson, as the county treasurer of Clay county, to file in his office a certain certified copy of an assessment list delivered to him by the county auditor of'said Yankton county and to proceed to collect and enforce the assessments made therein.
Upon the trial of the case in the circuit court all the facts were stipulated and there is no dispute except on questions of law. The facts, as so stipulated, are as follows:
The plaintiffs are the members of the board of county commissioners of Yankton county, and the defendant is the county treasurer of Clay county. A drainage district known as the Clay creek drainage district was established in the year 1907 by the boards of county commissioners of said Clay and Yankton counties, and a ditch within said district, crossing portions of each of said' counties and known as the Clay creek ditch, was constructed by the co-operation of said two boards, and was completed in the.year 1910. The drainage district so established, and the lands benefited by said drainage, include more than 3,000 acres in each of said counties. On April 6, 1921, certain persons owning land within that portion of the said drainage district lying in
On February 6, 1923, the county auditor of said Yankton county caused to be delivered to and left with the defendant, P. J. Ericson, at his office as treasurer of Clay county, a certified copy of said assessment list, and requested the said defendant, as such treasurer, to- file the same in his said office. Thereafter and on the 9th day of February, 1923, the said -defendant returned by mail the aforesaid copy to the county auditor, and in a letter accompanying said copy stated, in substance, that he was returning the said assessment roll, without having filed the same for the reason that he had been advised that such assessment was not legal and could not be a- valid tax against the property described in said list. And said defendant at all times declined and refused to file the said list, or to receive, collect, or enforce the payment of the assessments set forth therein.
The respondents, as members of the board of county -commissioners of Yankton county, brought this proceedings for a writ of mandamus requiring the appellant to file the said assessment list and proceed to collect the assessments levied against the lands situated in Clay county and described in said list.
After a trial the circuit court made findings of fact, in which it adopted the stipulation of facts signed by counsel for the respective parties. On these findings the trial court based conclu
In their assignments of error appellant’s counsel seek to' ques*tion the authority of the respondents ,acting as the board of county commissioners of Yankton county ,to make the expenditures for which the assessments were levied. Appellant is not in a position to raise those questions in this case. The facts as stipulated show that the ditch involved is a drain situated in two counties and within the provisions of section 8477 of the Revised Code. This section confers upon the board of each county the light to make expenditures for repairing, cleaning out, and keeping open that part of the ditch lying within such county, to assess-lands in each of the counties, to meet such expenditures, and to cause copies of the assessment list to be filed in the office of the treasurer of each county. When the list was presented to appellant for filing, his duties were, strictly ministerial, and he had no right to question the authority of the respondents to make the assessments.
The instant case is controlled by the decision in State ex rel McNulty v. Glasner, 145 N. W. 547, 33 S. D. 241.
The judgment appealed from is affirmed.
