*1 permit relief under our sufficient was not error We hold Act. Post-Conviction petitioner’s claims, some of the we discussed

While Act and Or- relief him under the none of them entitles appealed der from is affirmed. Judges

All the concur. DISTRICT VALLEY SCHOOL BRANDON INDEPENDENT Appellant NO. EDUCATION, BOARD OF

MINNEHAHA COUNTY (181 96) N.W.2d 10, 1970)

(File Opinion filed November Simko, John Woods, Smith, & Fuller, Shultz E. appellant. Palls, Sioux Atty., Deputy Palls, res- State’s Sioux Blake,

Bruce pondent. Judge.

HANSON, appeal This the Brandon propriety adopted involves of Resolution *2 County dissolving Minnehaha berg Board of Education the Ren- appel- attaching District, Common School it the Independent ap- lant District. did School not pear file a in brief the matter. Renberg Common School is situated' im- District

mediately city portion north of the Sioux A lies of Falls. Municipal Airport South of Interstate in bordered 90 the Independent on the south the Sioux Falls District. School Indepen- The district is bordered on Baltic north along dent School District. Interstate 29 the west runs boundary Highway boundary Ex- U.S. 77 the east line. highways Tri-Valley cept Independent for these adjoins Valley Renberg on the west and the Brandon Independent District on the north half of its bound- eastern ary. adjoins Another common school south boundary. Renberg ap- of its eastern In 1968-69 half proximately condary grade grade elementary students and over 50 se- high students. at- Its school students either high operates tended Baltic school which in the busses high area or the Sioux Falls school. attended school None Valley. Renberg at Brandon an assessed in has valuation outstanding $2,500,000 and no excess debt. April 30,

On voted to dis- electors Valley July solve and attach to Brandon to be effective County 1970. The Board of Education consider- proposition meeting ed the at its on June 1969 which at delegations Renberg, Valley, time Baltic, from Brandon present. other school districts were Valley protested Brandon attachment be- cause it would cast an unwanted burden on the district. Valley high facility had constructed a new resulting fall of 1967 in a bonded debt in excess obligations $900,000. outstanding The district had other $300,000. building peak excess of The new school had a capacity expected of 450 students which was to-be reached during year the 1970-71school from students within its own capacity. district. All being of its school busses were used to Renberg. necessitate would The influx of new from students $7,500 purchase a cost three busses at of at least new overcrowding, rescheduling, teachers, each, additional necessary pay probable debt for in bonded increase expansion programs. hand, Falls the Sioux On other accepting receptive to and Baltic Districts were Renberg students.

Contrary expressed Brandon adopted wishes of to the follow- of Education Board ing Resolution: special elec-

“Whereas, No. 5 held a voting April 3.0, tion on *3 against and attach- the dissolution of said ing Valley to Brandon No.

Whereas, official results of said election 242 were for dissolution and to votes attachment Valley against pro- No. said position, with a total vote of

Now, Therefore, Be It Resolved hereby 5 is No. Valley dissolved and attached to Brandon July effective 1970.” County action of Board of Educa- The the Minnehaha appeal by tion follow- was affirmed the Circuit Court and this ed. portions are statutes

Pertinent dissolution school of sixty per by cent of 13-6-34. “A school district which approves dis- in a the votes cast solution of the school district and its combination

with be combined another school district or districts shall pursuant with another district other districts to * * *” 13-6-35and 13-6-36. “Any one school is or becomes

SDCL 13-6-35. district which types in §§ described districts inclusive, 13-6-34, with another to be combined educa- district or other districts requirements meet action shall tion. Such reorganization limitations board into shall take consideration the wishes of the electors the district to eliminated and the district with to presented is be combined as public hear- to be held ing county board of education for this days at least prior ten date of such action however, provided, hearing that such shall not apply actions required board under of education provisions 13-6-34.” of § In view of patent ambiguity of the above statutes the County Minnehaha Board of Education was uncertain of its powers duties and thereunder. The chairman sought information from the Superinten- office the State dent Instruction and was advised expert reorgani- zation that “with you the vote as any ques- have there isn’t you tion but what put Valley.” them in Brandon It evident the County Board of Education act- ed accordingly. they of the Board believed members no discretion the matter and compelled were to at- tach to Brandon because of the election.

In the performance of its school reorganization duties County function, Board legislative exercises a Dunker v. Brown Education, Board 80 S.D. *4 121 N.W.2d 10. “In the exercise of authority, such delegated board acts agent of the legislature power and its as. is limited the statute authority. vesting the The inter- pretation of the statute and defining power under which agency acts a judicial question and reviewable by the courts.” Sunnywood Common School District No. etc. v. County Board of Education, 81 105; S.D. 131 N.W.2d Bandy Mickelson, 73 44 S.D. N.W.2d A.L.R.2d In reviewing questions of law the may courts deter- mine or agency whether not the exceeded misinterpreted or authority. its

We do not construe SDCL 13-6-34 executing. to be self Following special election approving dissolution the county board of education duty is under a combine to the dissolved district with another district or other districts pursuant to and 13-6-36. This divest the statute does not It delegated discretionary its legislative function. does not compel In- attachment with election result. stead, broadly to combine authorizes dissolved district “with another district other districts”. As the wishes of the in electors the district be eliminated to expressed been in a 13-6-35 elimin- necessity ates public of a hearing to same. determine the II does not foreclose considering board from district, following districts, wishes of the to dissolved may be combined and all con- other relevant siderations and requirements reorganization. of school

As the Board of Education acted under a misapprehension and construction erroneous law its governing action the Resolution combining Common School to the Brandon Valley Independent School District Am.Jur.2d, must be aside. 2 set Administra- Law, tive 656, p. 518. §

This proceeding is therefore reversed and remanded to the circuit court with instructions direct to County Board of Education combine the Common School District with another district or districts in accordance with discretionary 13-6-34, its authority as provided in SDCL 35, and 36 and SDCL Supp. 13-6-8.1 and 13-6-8.2.

RENTTO and BIEGELMEIER HOMEYER, JJ. concur.

ROBERTS, J., P. dissenting part.

ROBERTS, Presiding Judge (dissenting part).

I would the judgment reverse from appealed and re- mand the cause to The trial court with directions dismiss proceedings.

SDCL 13-6-34 contemplated initiation proceedings dissolve a school district and its combination with another *5 by or districts sixty district a per cent cast special vote at a The proposal election. on the ballot appearing special at election held in Renberg Ap- Common District on School 30, 1969, ril read as follows: “PROPOSITION BE TO VOTED attached and to be District dissolve

UPON—To #5 July 1, Independent Effective District #150. sought upon district condition 1970.” The ed- was attached that it be dissolution contemplate plaintiff Election district. statutes ucation to vote, special proposition ato submitted when a clearly of the the substance state the ballot recital on proposition. (2) g. 170, Elections 29 C.J.S. undoubtedly upon power conferred a coun- The statute ty at- district to dissolve and of education a board districts” when author- district and other tach it to “another by sixty per at a election. vote cast ized legislature a cent whereby procedure prescribed the mode will of could determined and defendant voters approval proper and unconditional the absence dissolve school district could not electorate districts. with another and combine it any proceedings the de- In the remand of the event proceedings further fendant board of education for recently my opinion, is, in inconsistent with statutes enacted legislature. and of the in Vale In the recent decision of this court Smeenk, 182, it 179 N.W.2d S.D. is said: legislature plenary

“The in the exercise its reorganization powers over the establishment Chap. statute, of school Laws districts enacted a Elementary creating Commission State Secondary consisting Education of five mem- provided comprehensive changes bers in re- reorganization. quirements limitations Chapter general 38 was submitted at the in 1968 to referendum and became effective vote approved when was at such election elec- torate the state.” Chap. supra, 13-6-4was amended Section part

to read in *6 “Requirements reorganiza- and limitations for Reorganization tion. of school districts the elect- ors, the education, Board of State Elementary Education, or the State Commission on Secondary following and Education must meet the requirements:

(1) territory All land or within area the State July South Dakota before on or part independent a of an become offering school district program

an accredited school and meeting adopted by standards State provided, Education, Board of however, no superimposed high qualify school district shall except July those existence as of 1968.” legislature effectually speed- The and ily carrying legislative purpose including out the all land independent areas in the state within school districts and completing Chap- the unification school districts enacted (SDCL 13-6-8.3). Supp. provisions ter Laws 1970 The amendatory part this statute read any

“If land area within has the state not be- part approved independent come a of an dis- school provisions trict in accordance with the of 13-6-8on January July 1, 1969, or before or be effective on 1, 1970, designated or thereafter on the date elementary secondary state commission on edu- any boundary changes adjustments cation ifor or necessary, land area are the state commission ele- mentary secondary provide education shall hearing any a for the residents of land area in- so volved and shall resolution take one of the follow- * * * ing (2) Combine, courses of action: attach any boundary change adjustment make of land may necessary as deemed of a common or of independent school district with another inde- * * *” pendent school district. legislature prescribed procedure applicable has a presented proceeding. Renberg

the situation in this school ap- part of an not become “land area” that district is a July proved 1970. SDCL independent district before legislature merely applies validation con- reorganization proceedings other statutes this *7 retroact provision construed to can tain no territory authorize the attachment subsequent independent aon date education to designated July 1,1970, board. such Appellant ERICKSON, LOCKE, 100) (181 N.W.2d (File Opinion November filed