
    RENVILLE STATE BANK, Respondent, v. KINSBERG, County Auditor et al, Appellants.
    (166 N. W. 643.)
    (File No. 4227.
    Opinion filed March 8, 1918.
    Rehearing denied May 7, 1918.)
    1. Mandamus — Quashing Petition and Writ — Affidavit, As Basis— Petition, As Affidavit.
    A motion to quash a petition for writ of mandamus and the alternative writ or ground that writ was not issued upon affidavit, is untenable; since the verified petition should be treated as an affidavit for -purposes of such action; that a written declaration, properly sworn to, may constitute an affidavit, even though in form of an ordinary pleading.
    2. Drainage — District Assessment, Mandamus to Enforce — Petition,, Sufficiency.
    A filed petition in an action for mandamus to compel proper county officials to certify a money assessment of benefits in relation to a specified drainage district, alleging the establishment of the drainage; district, that a contract was let to construct the; drain( and was assigned to drainage company, that the county commissioners issued to said company, prior to completion of the drain, for services performed by it in constructing the drain, duly executed warrants under seal in about $8000, which were payable out of any unappropriated funds belonging to ditch fund of said district, that said warrants were assigned by said drainage company to petitioner,, that no money assessment for benefits has been certified 'by county commissioners to county treasurer for collection wherewith to create a fund for payment of the warrants, and that the commissioners although requested have refused to issue the warrants, states facts sufficient to authorize an alternative writ.
    3. Actions — Drainage Assessment, Enforcement of — Ordinary Action, or Mandamus, As Remedy — Statute—County, County Commissioners, Liability of.
    In an action against the county auditor, county treasurer and Board of -County Commissioners, to compel them to certify a money assessment of benefits concerning an established drainage district, held, that the defense that the rights of the parties should have been determined by a judgment in an ordinary action, and not in first instance by mandamus, is untenable; since under Laws 19 07 Ch. 134, as amended by Laws 1909, Ch. 102, relating to drainage and drainage assessments, the only method provided for creation of a fund for payment of warrants issued, thereunder in payment for services in constructing drains, is a money assessment for benefits, certified by board of county commissioners for collection to county treasurer; that mandamus to compel such action, is an appropriate remedy; that no- judgment could be obtained against the county, it not being a party to the drainage procedure; nor against the board of county commissioners or the individual members thereof as they act merely in an official capacity; nor could suit be maintained against county tre-asurer to pay such warrants without a special fund first created for that purpose.
    
      4. Drainage — Assessment for Benefits, Mandamus to Enforce>— Completion of Ditch as Condition Precedent to Mandamus, .Necessity — Statute.
    Under Laws 19 07, Ch. 134, as amended by Laws 1909, Ch. 102, Secs. 7-11, the county hoard are authorized to make assessments prior to completion and during progress of construction of drain, in their discretion; and if contractors are required and agree to accept warrants for services, assessments need not be made until completion of the work; hence^ held, that completion of the drainage ditch is not a condition precedent to the right of one holding warrants issued for services in constructing a drain, to maintain mandamus to compel certification by county commissioners to county treasurer of a money assessment of benefits in relation to a drainage ditch proceeding.
    5. Same — Benefit Assessments, During Ditch Construction, Or After Completion — Board’s Discretion — Evidence, Sufficiency.
    Under Laws 1907, Ch. 134, a£ amended by Laws 1909, C'h. 102, Secs. 7-11, relating to construction of and payment for drainage ditches, it is discretionary with county hoard as to whether assessments of benefits for purpose of paying for services in constructing the ditch> should he made during progress of the work prior to its completion, or whether one. assessment for the whole cost and expense thereof should be made after its completion.
    G¡. Same — Assessment of Benefits, Enforcement of — Completion of Ditch, Evidence Concerning, Sufficiency.
    In a proceeding by mandamus to enforce certification by defendants county auditor and county commissioners, of a money assessment of benefits in relation to construction of a ditch in a drainage district, held, that the evidence of record showed construction and completion of the ditch on a certain date, and was so considered by the county hoard; it. appearing that the hoard had made an assessment to be signed, certified to and collected by county treasurer, hut that same never was certified, and that one purpose of the suit is to compel certification; which assessment contained all specifications concerning description of property, names of owners, amount of assessment, and date when delinquent etc.; that after completion of the ditch, an injunction suit was begun by certain property owners against county board, county auditor and treasurer to restrain defendants from spreading the assessment of record and from collecting same, and to have judicially declared void and illegal all proceedings concerning construction of the ditch, in which suit defendants by answer alleged that said proceedings were legal and valid, and that defendants therein were authorized to certify as a. tax against the lands the amounts expended in construction of the ditch; findings in judgment therein being in favor of defendants, and that the ditch had been substantially completed when said suit was begun.
    7. Same — Assessment of Benefits, Enforcement by Mandamus— Prior Injunction to Restrain, Judgment in for Defendants— Judgment Roll as Evidence in Mandamus Action.
    In an action of mandamus against county auditor, treasurer, and county commissioners, to compel certification of a money assessment of benefits in relation to a drainage ditch construction proceeding, held that the judgment roll in a prior injunction suit by owners of realty in a drainage district, against said defendants, to enjoin spreading of record a drainage assessment, and to have judicially declared void all proceedings concerning construction of said ditch, in which suit findings and judgment were in favor of defendants, was competent evidence to sustain said findings under the issues in the mandamus case; that while such evidence was not conclusive, nor was said judgment res judicata against the defendants therein, the same was prima facie evidence in nature of quasi judicial admissions from which all consequential incidents may be drawn that naturally flow from the acts of said officers taken in the injunction suit; and from said acts as shown by said judgment roll, it might bei inferred that the county board, in exercise of statutory discretion elected to and did make a valid money assessment for such -benefits; therefore findings in the present suit, based upon said judgment roll, that such assessment and a levy thereunder had been made, and that the drainage ditch had been substantially completed when injunction suit was begun, is supported, by competent evidence.
    8. Evidence — Drainage Ditch Construction Contract, Assignment of — 'County Auditor’s Records, Failure of to Show Transfer— Oral Evidence}, Admissibility.
    Where county auditor’s record or minutes failed to show assignment of a contract executed in course of construction of a drainage ditch under statutory proceedings, held, that oral evidence was competent to show such transfer was made with knowledge and consent of county board; this in view of the fact that the warrants issued in payment for services in construction of the ditch were issued ’by county board and made -payable to the alleged assignee of said contract; it being the general rule that oral evidence, while not permissable to contradict or vary such official records or minutes, yet where official acts have been performed and records of such acts have been omitted, such omission may be shown by oral testimonyi in absence of a prohibitory statute.
    
      Appeal from Circuit Court; Sainbbiro County. Hon. Frank B. Smith, Judge.
    Action in mandamus by Renville State Bank, a corporation lolf Renville, State of Minnesota, against ■ John Kins berg, as County Auditor, P. M. Brisibame, as Cbunty Treasurer, and C. V. Jacobson, as County Auditor-elect, H. B. Dowdell, as County Treasurer-elect of -Sanborn County, State of South Dakota, and Henry Meyeng and others as members of tibe Board of County Commissioners of Sanborn County, and W F. Briggs and C.. D. Thompson as members of the Board of Counity Oommissiouerselect, far Sanborn Ooiunlty, to compel- defendíante to certify a money assessment of benefits in relation to a certain drainage ditch construction1 proceeding. From- a judgment for plaintiff, defendants appeal.
    Judgment modified, aindl as modified-, affirmed.
    
      Null & Royhl, for Appellant.
    
      Van Slyke & Bartlett, and L. D. Barnard, for Respondents.
    (i) To pioin't iclne of the opinion, Appellants cited: 26 Cyc. 429: S'-bate v. Commissions, 68 N. W., 336; Stale v. .Lincoln, 4 Neb., 260.
    Respondent ditedl: 25 Cyc. 431.
    (3) To point three of the opinion, Appellants c-i-ted'; Bailey v. Lawrence County, 2 S. D., 533; Custer Oo. Bank v. Custer Co., 18 S. D., 274; Stanley Co. v. Ja-ckson Go., 36 S. D , 350 ; Halverson v. Williams, 160 N. W. 730.
    Respondent oitedi: Reed v. Helie, ('N. D.) 124 NW. Rep. 1127; O-sbclrn v. Selectmen of Lennox, ('Mass.) 2 Allen 207; 19 Aimer. & E-ng. Cyl. of Law 2d Ediltliiom, 795, and cases cited; Henm-eknan v. Cdrufra-n, 36 Oald-f. 411; People ev rel Talbot v. Tonti'a-c, 56 NE. 1114; 'Ootniwiay v. City of Chicago, 237 Til. 128, 86 NE. 619; Thomp-son v. Perris Irrigation District n6, Fed. 769; State v. City of Seattle, 85 Pac. '1142 Wash. 370.
    (8) To point -eight -o-f the 'opinion, Ap-pell'ants cited- Pol. Odde, Seas'. 824, 826, 845; Mayhe'w v. Gay Helad, 13 Allen. T29; O’Oconel-1 v. Chicago Terminal Transfer R. Go., 184 111., 308, 56 N. E-, 355; People -ev rel. Cline v. Rhodes, 231 '111., 270, 83 N. E., 176; People ex rel-. Green-widod v. Madison, County, 125 111-., 334, 17 N. E., 802; affirming 23 III. App. 386.
    Respondent -cited: ' Nickens v. Lewis Company, 62 Pac. 763, (Wash.) ¡Duluth S. S. & A. R. R. R. Oo. v. Douglas Co , (Wis.) 79 NW. Rap. 34; Sec. 558, Dillon on Municipal Corporations, 51th edition, ánid cases cited'; Gh&se v. Michigan United States Railway Co., (Mich.) 13-1 NW. 118; Wheat v. Van Time, 112 NW. Rep. 933; Oity lof Seattle v. Doran, 5 Wash. 482; 20 Aimer. & Eng. 'Cyl. of Uaiw, 1st Edition, 501, 503; 27 L. R. A. 766.
   McCOY, J.

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 m-issioners to tihle -county It-reaisurer for collection for -the ¡purpose of creating a fund with ■which to pay said warrants; and that, although requested: to certify -such assessment, the board! of county commissioners have refused and neglected so to do.

Alt fee opening of the trial defendíante moved to quash fee 'petition and alternative writ upon the ground that the alternative writ was improvidently granted, and particularly that said write was- note issued upon affidavit, and feat fee facts stated in fee petition were not sufficient to entitle plaintiff to the relief sought. Defendants now -assign -as amor the overruling of salid motion. It is first urged that fee writ was not issued upon affidavit. We are of fee opinion thalt the petition, which was -swlorn to under oath,, .should 'be treated as .an affidavit for the .purpose of .this action. A written declaration, properly sworn to, may constitute an -affidavit, even though in the form of an ordinary pleading. Woods v. Polland, 14 S. D. 44, 84 N. W. 214; State v. Peterson, 29 Wash. 571, 70 Pac. 71; 2 C. J. 318. We are fails© of the opi-nilon feat fee petition -stated facts sufficient to authorize fee 'alternative writ.

It is also -contended by 'appellants in this, connection that the rights of the parties to this action should have been determined by -a judgment of the court in an ordinary 'action and -not in the first instance by mandamus. We are of fee View that this contention i-s not tenable. As must be observed by .a reading of chapter 134, Laws of 1907, as amended by chapter 102, Laws of 1909, Itihe only method provided far tire creation of a .fund far the payment of such -warrants is a money assessment for benefits certified by the board -of county commis'siioners- for collection to the county treasurer, tinder feis situation of .affairs we are -of fee view thalt mandamus -to compel such' action on the part Of the county board is an appropriate remedy. No judgment ooukl be 'obtained againsit the -county, as the oounty is not •-a party at all to such ’drainage procedure. N© suit for money judgment -could be maintained against fee board of county .commissioners or the -individual members ' thereof, Us they were -act-ting merely -in -an Idfficiai 'capacity. Neither co-ukl any action be maintained against the county treasurer to pay such warrants without a special fund first having been created for -.that purpose. We are therefore of the view that mandamus was a-n available and an appropriate remedy unlder the circumstances of this dase. The following decisions fully sustain this proposition: Reed v. Helie et al., 19 N. D. 801, 124 N. W. 1127; Osborn v. Selectmen of Lenox, 2 Allen (Mass.) 207; People v. Mead, 24 N. Y. 114; State v. Bollinger Co. Count, 48 Mo. 475; People v. Marsh, 21 App. Div. 88, 47 N. Y. Supp. 395; State v. Seattle, 42 Wash. 370, 85 Pac. 11; Himmelmann v. Cofran, 36 Cal. 411; People ev. rel. v. Pontiac, 185 Ill. 437, 56 N. E. 1114; Conway v. Chicago, 237 Ill. 128, 86 N. E. 619; Chicago Library v. Arnold, 60 Ill. App. 328; German Bank v. Spokane, 17 Wash. 315, 49 Pac. 542, 38 L. R. A. 259; Union Trust Co. v. State 154 Cal. 716, 99 Pac. 183, 24 L. R. A. (N. S.) 1111: Redmon et al. v. Chacey, 7 N. D. 231, 73 N. W. 1081.

It is alsra contended1 by appellants that there was no competent evidence tending to ,support .the finding that said drainage ditch had been constructed substantially according to the 'terms anld specifications' of the contract and that the same had been practically completed at the time the injunction action- was inistiiituteidi; s'aildl injunction action hlav-inig been iiimstitute'd long before the commencement of 'thi® aetiloln. This contention brings us for consideration (th'e question and necessity of the completion of 'the drainage ditch as a conidlitilom precedent to respondent’s right to maintain this mandamus' -proceeding. Under the provisions of the statute the boalrd of cou'nty Commissioners- are authorized to make as'seisSmeatis prior to the completion and during tire progress of tine 'constructibn -of -a drain, as in their diiscreation they may determine; ¡the .sitaitute al-So provides that if the contractors are required amd: agree to- (take warrants for their sevices, which was dlotae in this instance,' alsis’essmentg need not be made until the completion, of thle work. Under these provisions of the statute it i's. conlbendeldl that inasmuch as the work of -constructing the dirain has never been' .completed, and inasmuch as it was a disoretioiniaTy matter on the p-alrt of the county board whether or n|c|t aislseis-sments should' 'be made prior to the completion: of the contract' Work, the board of county comm-issiiooers have never been placed in a position where it was their legal duty under the statute to certify am assessment to the county treasurer far ccllleation.

We are inclined to agree with the- view that under the drainage statute it is a discretionary matter with the board of county -dommiiis'slioners whether assessments should be made during the progress of the work prior to its1 completion, or whether lome assessment for the whole octet and expense should be made after the 'construction work has been Completed; but, under the evidence in this case, w'e are oif the view ‘that there wag ample evidence to 'show that ithe ditoh in. question had heen substantially ootnsltru'Cted! and completed according to -contract prior to August,' 1912, arad wiais so Considered by the board lolf couuity com-mii'SSiotiiens of 'said aounty; that 'the salild board o-f county eommissiboers- idffld make an assessment to be filed and certified amdl collected, as & special tax or assessment, ‘by the county treasurer, but that 'the /same bate never been certified, and that one purpose oif this suit is to compel such certification. V' e do not apprehend that a boairfd of County commissioners, after substantial icompli'aruce with the Contract to- -construct. a drain, could sit down for five or Six years and refuse tO' 'Certify an assessment to the -county treasurer anldl (thereby defeat payment to those who had- performed1 the services of substantially constructing sail drain.

It appears from the findings in this case, and from the evidence preserved in the record, that the board -of county commissioners made -an assessment ini money benefits, and gave nbtic-e that such aisisessment would be filed with the :ounty treasurer on the 12th: dlay ¡of August, 1912, -containing a des-c-. iptilani of each .parcel of property so 'assessed, (and fch'e -name of the owner thereof, and the aimbunit of Cach assessment, and the date when such assessment would become delinquent, with penalty amid interest; that after the 'drainage ditch had been substantially completed, owners of real- estate -affected1 thereby commenced an action against the Said board of county commissioners, county -auditor, and county1 treasurer, et al., among -other things, to restrain, the said board of county commissioners, auditor, and treasurer from spreading slaiid assessment upon the tax boobs of said County agiaiiinst salid lands., and from- Collecting the same, and- for the purpose of ‘having judicially 'declared voii-1- and illegal .all /proceeding's in relation to the establishment and construction of -said -drainage ditch, and being the identical drainage ditch, and procedure establishing the same, involved -in this instent action; that in said action the s&iildi botad'of county commissioners, county auditor, and county treasurer interposed an answer in whioh they set forth and declared that all. the proceedings of thie officers aforesaid in the establishment of said drainage ditch,- in levying an assessment for the construction thereof, -and in all proceedings 'relative thereto, were legal and valid, and that said county commissioners, auditor, and treasurer were authorized as a matter of law to certify as a tax against each tract of land affected by said drainage ditch its 'proportionate amount oif the expense of construction under and by virtue of solid proceedings; that on the trial of said injunction action findings and judgment were in favor of the defendants, whereby it was found and judicially declared 'that all the proeeeings in relation to the establishment and construction of said drainage ditch were legal and valid, incluidling the assessment for benefits, and that Said dlitdn tad been substantially completed at the time of the commencement of that action, and which judgment in said injunction action was affirmed by' the Supreme Court of this state on April 13, 1914, and is reported in Smith v. Pence & Pier, 33 S. D. 516, 146 N. W. 709.

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 of lanid1 affected by said drainage ditch, giving a 'description-, together wliith Itih-e name of -the .owner tih-eireof, and the specific amount .in money severally lavfadl, taxed1, and als-sessad- against each parcel, for the pmrpdse -of -certifying the same to- the co-unty treasurer for -col-eotiiolni to create a futnld f-r-om which' salid warrants -could be p-aid. W-e are therefore of -the view 'that the findings made in this action), that su-dh assessment a-nicl levy had been made, and that s-aiid ¡drainage ditch had been -su-b-stanltlially co-mip-lebeld at the time -the injunction- -acitiion w-a-s commenced-, are supported by competent evidence.

Appelant urges that 'tere is no evidence to show that the contract Ito construid: -s-aii'd -drain was -ever 'transiterred or assigned! by Pence & Pier to the Woans'oebet Dirain-age Oo-m-pany with th-e cons-ent and approval -o-f sla-i-d board1 of cioiunty commissioners. .It lis -contended that the re-c-oiUdsi -o-f minutes- keip-t by the -county auditor of the transactions -of said! county board while acting in relation to such -drain-age -ditch do not s-hiow the -assignment or ¡transfer -o-f salid -contract -or tihlalt said county board -consented thereto. Th-e records oir minutes of 'tllie county auditor do not show such transfer -or -consent thereto, bult oral evidence was -offered, -over the -objection that the -same was incompetent, to the effect that s-u-Ch transfer was, as a matter '.o-f fact, made with the knowledge -and consent of the county .boated. From the fact that the warrants- in -evidence were isisuiad and made payable to the Wioloinso-cket Drainage Complan-y by the said board of co-u-nty commissioners would -seem to indicaste, res ipsa loquitur, tha-t the ¡county -ccwmmi'sfsioners bald knowledge -and consented to the transfer -o-f salid -contract. We are- of the opinion that oral testimony was competent -to -show w-h-at a-ctiom- w-als taken ‘by the county board in this respect in- the absence or omission of any record or minutes showing the same. The general rule seems to be that ¡cita® evidence is not permissible to contradict or vary matters shown by sluoh -official records or minutes; hut where official acts Wave in flaCt been performed and tafeen -place, and where the record's or minutes of such acts h-av-e -been omitted, such- omission- may be shown by parol testimony o-f persons who were present, unles-s there is some law requiring 'that all such matters must appear -o-f record, and making such record th-e only evidence thereof. Dillon, Mun. Corps, §§ 298, 299, and 300; 28 Cyc. 343; Ross v. Madison, 1 Ind. 281, 48 Am. Dec. 361; Brown v. Webster, 115 Iowa, 511, 88 N. W. 1070; Nehrling v. Herold Co., 112 Wis. 558, 88 N. W. 614; German Ins. Co. v. School Dist., 80 Fed. 366, 25 C. C. A. 492; Riverside Tp. v. Stewart, 211 Fed. 873, 128 C. C. A. 251. We have mo law in this state making the minutes .or record of the tranisiacti'ons of the board of county commissioners, when acting in relation to the establishing of drainage ditches, the only evidence of such official acts.

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.  