#### STATE EX REL. DAMON, Respondent, v. STOKES, et al., Appellants.

(181 N. W. 831.)

(File No. 4804.

Opinion filed March 10, 1921.)

Counties — Division of Counties, Two Disagreeing Petitions For, Both Propositions Submitted and Voted On — Delayed Appeal, Futile.

Where two petitions for division of a county, disagreeing as to territory sought to be included in a new county, were presented to county commissioners and submitted by them to a vote and were thereafter voted on, the circuit court having on certiorari meanwhile reversed action of the county commissioners and adjudged that there be submitted to vote the question presented in • the first petition, from which judgment an appeal was taken, but no brief thereon being filed until after the date of the election, held, that, since a determination of the questions involved would benefit no one, and appellants’ delay in perfecting appeal and speedily prosecuting same resulted in making the appeal unavailing, Supreme Court will not do the idle act of determining questions involved in the appeal, and appeal is dismissed.

Appeal from Circuit Court, Butte County. Hon. Jameís McNunny. Judge.

Proceeding >by the 'State of South Dakota, on the relation of C. M. Damon, against O. O. Stokes and others, as members of the Board of County Commissioners of Butte County, S. D., to review on certiorari the action of county commissioners in submitting to a vote of the people two certain petitions for a division of Butte County. From a judgment reversing the action of the County Commissioners and adjudging that there be submitted to the voters the question of division as prayed for in the first petition, defendants appeal.

Appeal dismissed.

*Dan McCutchen,*and *Norman T. Mason,*for Appellants.

No counsel for Respondent.

WHITINlG, J.

Two- petitions for the division of Butte county were presented to the county commissioners of such county. These petitions did not agree as to the territory sought to be included in a new county, and if the questions of division to be submitted under each petition should carry at the election, such attempt at division would be abortive. Yet the county commis*4sioners directed that both propositions be submitted to the voters of such co'unty at the November, 1920, election. To review such action of the county commissioners a writ of certiorari was sued out in the circuit court. The circuit court reversed the action of the county commissioners and adjudged that there be submitted to the votérs the question of division as prayed in the first petition filed. From such judgment of the circuit court this appeal was taken. The judgment of the circuit court appears to have been rendered about August 25, 1920. No appeal was taken until October 7, 1920, and appellants’ brief was not filed in this court until November 11, 1920, several days after the date of the election.

It is apparent that a determination of the questions sought to be raised upon this appeal would benefit no one; and, inasmuch as this situation comes through delay of appellants in taking their appeal and pushing same to a speedy determination, this court does not feel1 called upon to do the idle act of considering and determining the questions presented upon this appeal.

For the reason stated above, the appeal herein is dismissed at appellants’ costs.