Daily Yellowstone journal., 1890-02-04
HORSE SENSE JUDlCIALLY Dg.Iv.
Erred.
Fall Text Of Judge Milburn's Decision In
the Taxpayers Cs-e.

Iu our fridays Issue We men toned
desiring to give Judge Milburn's de-
ci.iou in the csse of Towner Savage ct
al. VS.. The Board of County Commits,
sion.rs Of Custer County, rs son p
space permitted. The following il
the full text of the opinion:
This appeal is dismissed for the fol :
lOwi1g reasOns:
First. T ,ere is no allega i,n In the
appeal papers thst the sDpsl ants ars
taxpayers. A county attorney filing
an information in his canacity rs such
attorney, may say. II, r chsrd Roe.
the county alto ney of naid county. !"
and the court IL C JEpelled 10 take ju-
dicial notice of the tact that he IL
county attorney but the court ha. no
mower to take judicial notice of the
fact that said Savage ct al, are tax
payers and this being mat rial alle-
cation necessary In the appeal rapers,
and appellants not having a-ked to
amend their plesdings 10 this regard,
and r. pondent' have objected 10 the
introduction Of any evidence Of the
appellants being tax.psyers in the event
OF an allegation a. that effect, AMI the
court having held that objection under
advisemenl. and now deciding that II
was well taken. find. it-elf without
knowledge that said appellsnts sie
tax payers IT the county 0f Custer. ana
therefore the court hiss not iuri 'diction
OF the ca-e
Second. The appeal va, not per
fected, in this: Tnc origiusl bill al
legged to have been allowed bv said
board, 10 not with the appeal Papers.
The transcript of the county clerk DOES
not show Ia what sum, II aLy, the bill
was allowed. The Law, (sec. 765. 5th
div. of the compiled statutesl requires
that MI the papers Ia the case should
be fled with the transcript. The
court hiss not the ptper before II and
therefore has not Jurisdiction OF the
csse. The bill and account, the very
oundation Of the appeal. 10 not here,
nor IL u set out In the transcript.
Third. There 10 doubs that the
duties of the bnard 4 county commits.
sioners are only such ss are laid down
by statute: there Is no doubt either that
the duties OF the board are very broad
and are restricted In the care of the
property and concerns Of the county
only by the dictum of reesou and re.
strlctive leg's alton.
In the S5th Californis, psge 664, the
supreme court holds that boards of
superyisors, q. e. boa-ds Of county
com missiopen) possess the power, a.
Incidental to the management. care
ard preservation Of property ~ cou.
ferred by statute, 10 take oil legal
mes ,ures necessary to that end, by
suIt or otherwise, and therein Are vest
ed with large Discretionary powers,
and n 10 the exercise OF their judg-
msut and discretion the board OF super
visors conceive that the interests OF
the county are involved In Q certain
question and thereupon take legal
mes ssures, by suit or otherwise, to ad-
vance or perfect those interests, the
az penss thus incurrsd becomes legal
claim upon the county. notwithstand-
ing that the county may ultimately
hold that the board bad adopted the
wrong remedy, or were entitled TO no
remedy Whatever.
The statutcs say that the board Of
county commissioners OF this county
have power at any meeting ITO repre-
sent the county aud have the care OF
county property, and the management
of the business and concerns oil the
county. In all cases where no other
ryov,s ion IA made by law This 10 -
hrosd A. the earth; Il may be tor broad,
hut y i'm that I have nothing 70 90.
The acts Of the hoard In the manees
neat and care Of the property sed