*1 557 I would reverse and remand the case with direction to grant the injunction. As stated majority opinion the “school adopted administration” the attendance areas. The board policy left the entire matter up administration and took no action itself to adopt or the act ratify of the administration consisting solely drawing general map of the City Sioux Falls which did not indicate the street which upon petitioner resided. actually
SDCL 13-28-19 grants
authority
independent
school
board to
“assign
distribute the resident students
for
eligible
schools
the district.”
among
high
education
secondary
legislature may
delegate
a legislative function and has done
so. “In the exercise of such delegated authority,
the'board
acts
the agent of the legislature and its power is limited by the statute
No.
authority.”
School District
vesting
Sunnywood Common
46 of Minnehaha County
County
Board of Education
County, 1964,
Minnehaha
DAVE CO., Inc., GUSTAFSON & Respondent COMMISSION, HIGHWAY Appellant N.W. 2d 594)
(File 1975) February No. Opinion filed denying rehearing petition Order March *2 Burke, & May, Falls, Harold C. Doyle, Sioux Johnson respondent. Carl Quist, Gen., W. Colwill, Asst. Atty. F. Gary Gen., Pierre, Asst. Sp. Atty. for defendant and appellant. WOLLMAN, (on reassignment). Justice Plaintiff an action brought against defendant Commis (the of SDCL 31-2-34 sion) pursuant provisions seeking declaratory relief. The case was submitted trial court on a written * of facts. The trial stipulation court entered favor of $9,580. amount of We reverse.
Summarized, the stipulation of facts reveals that on or about April plaintiff entered into a contract with the Commission to perform and other paving work on supporting I project 4(18) 185 County, South Dakota. The 90— Jones contract incorporated the South Dakota Department of Highways “Standard Specifications for Roads and Bridges, (1969 edition).” The contract provided that the west portion of the 15, completed by October The 1969. total was to be completed by July
* findings
trial court made and entered formal
of fact and conclusions of
15-6-52(b) provides
parties
law. SDCL
stipula-
that where the
enter into
tion of facts
findings
for consideration
of fact and conclusions
of law are
findings
waived. We have stated
in such
“super-
cases
are
Schmidt,
857. See also State
fluous.” Asmussen v.
202 N.W.2d
173;
Surety
Company
Company,
v. Western
128 N.W.
Cable
S.D.
Slettebak,
Rathgeber,
and Slettebak
On October 1969, plaintiff submitted a letter to the Commission, the material parts of which read as follows:
“In order to work a normal sequence of operations and avoid back moving and forth and time, we losing feel we should stay the West end of the Projects and work toward this point.
“We could possibly move ahead and do this one area, but it might leave something uncompleted farther to West and then possibly none the road would be open to traffic.
“The concrete has paving been placed, and unless we have an earlier than shutdown, usual we feel we can *3 complete this by November 15th which is the comple- tion date on the other projects.
“We therefore that the request October 15th com- pletion date be waived and be November 15th made date.” completion 20, 1969, the wrote Under date of November on November that at its stating a letter plaintiff request to on plaintiff’s deferred action had date, that stating and completion the October waive date. a later be at would considered plaintiff’s request to the letter following wrote the 22, 1970, plaintiff On June Commission: the Com- that this requesting'
“I letter writing am 35 weather an additional allowing mission consider feel I this of this project. days completion working have been days additional some though even justified Orders Change of the Construction several allowed for allowed; stat- engineer were several, no days On signed. com- upon be time would considered additional that ing the project. pletion specifica- with comply is to this letter
“Primarily, before be submitted must tions, request stating date; re- by and I this hope filing the review. I can meet will hold this you open quest the Commission to make more you possibly detailed review of this and others in the imme- vicinity.” diate 9, 1970,
In a letter to the Commission dated September 22, 1970, and stated in part referred to its letter of plaintiff June that: “In added to this days project by addition overrun, I feel the days considerable base course added Orders on the Change 190-4(17) Construction as the County should considered projects Jones were interrelated and both our quite company’s projects and the personnel state’s personnel equipment were the two as one Conse- equipment working job. on the first resulted in a slow quently, job overrun * * *” down in construction on the second. 24, 1970, dated November
In a letter to the Commission days restated the for additional request working again itself had been completed by project. September held on November At an official meeting *4 23 additional time days purported grant plaintiff on the west end of the scheduled for project, originally 15, 1969, on October completion purported grant plaintiff 26 additional time on that had days portion project been scheduled for July Commission, On November whose membership had apparently changed, rejected plaintiff’s requests for exten- sions of time on the and assessed question liquidated day days of on the 23 damages per required complete $100 west portion per day $280 26 additional $9,580 days the total for a total of required project, in liquidated It was this amount that the trial court damages. held was entitled to be the Commission. paid by parts of Section 8.6 the above described
The pertinent Specifications Bridges, edition)” “Standard Roads read as follows:
“If the Contractor finds it impossible for reasons beyond his control to complete the work within the contract specified time as or as extended in accordance with the subsection, provisions of this he at may, any time prior expiration extended, contract time as make a written request to the Commission for an extension of time forth therein the setting reasons which he believes will justify of his request. Contractor’s plea insufficient time was specified is not a valid reason for extension of time. If the Commission finds the work was delayed because of conditions be- yond the control and without the fault of the Contract- or, fqr they may extend the time completion in such * * amount as the conditions justify. The extended time for completion t)e shall then in full force and ef- fect the same as it were though the original time for * * *” completion. The law regarding changes contracts highway was stated by this court follows:
“Constitutional
and statutory
provisions place
limitations on the contracting power and authority of
the State
Highway Commission
which those who
deal with it are
State,
with notice.
charged
Cuka v.
The thrust of the Beckman the in a entered into with a modification contract permit that must precedent Commission are conditions State Highway In the instant can be made such contract. changes exist before were, first, the existence of reasons case, precedent the conditions which made it to impossible beyond the control of and, within the contract time specified the work complete second, prior an of time made a written for extension request forth the the of the contract time therein expiration setting the the granting reasons believed would justify reasons, course, of plaintiff’s to be request, support beyond for reasons its impossible it would be contention time. the work within the contract control did for extensions not requests In our opinion, plaintiff’s 8.6; was of Section the Commission satisfy requirements extensions. authority therefore without grant was without Because of our holding time, we need for extensions of not authority requests grant- requirements had waived the consider whether authority its Section 8.6 or exceeded constitutional extensions of time. is reversed. BIEGELMEIER,
WINANS, Retired Justice, concur. J., ANDERST, DUNN, dissent. Circuit J., Judge, C. DOYLE, ANDERST, J., Judge, sitting disquali- Circuit fied.
BIEGELMEIER, who at time oral Retired Justice, COLER, sitting J., was member of argument was was a member of the court at the time this case who not and did not orally argued participate.
ANDERST, Circuit Judge (dissenting).
I dissent. *6 Schmidt, Sons, In Com. of Rev. v. Phillips & 195 N.W.2d this court set some standards for review of administrative decisions:
“We with the agree argument commissioner’s if the set requirements forth in SDCL 35-4-26 are exclu- sive and that if one those meeting requirements is auto- a matically entitled to Class liquor B wholesaler’s license lato, as a matter then the statutory discretion granted of of commissioner revenue SDCL is 35-4-31 meaningless. “* * * commissioner, is It for the not the cir- court cuit nor this draw to in- legitimate ferences conclusions may be the supported by * * * as a record whole. Because his of intimate of the knowledge day to of day operations the retail state, wholesale liquor business within the the com- missioner is better able than the trial court to note and evaluate nuances in the testimony and evi- documentary 338-339, dence.” 86 S.D. at (emphasis supplied) N.W.2d at 404. If we follow these standards to review of administrative decisions, it is the Highway has the "intimate Commission that knowledge day day and the operations” priorities various projects mind as it makes its decisions. Like the a commissioner liquor'license, certain discretion must Commission; left with the if one Highway statutory is requirements law, not entitled to a license as matter of liquor then one surely applying for extension of time on a contract letter not does meet fail or to meet the “as requirements a matter of law.” The never intended divest the legislature of all discretion in on an passing application extension of time on a project.
Whether not the complied provisions section 8.6 is a We question of fact. not should substitute our that of Commission as weight evidence on questions fact. There is substantial evidence support findings Highway Commission which passed the trial court of 8.6 provisions under the
this extension that reviewed it. is
Further, decision here my majority it opinion anAt official precedent. and insidious dangerous promoting *7 made a final on November on completion a extension 23-day the plaintiff decision granting on a extension 26-day the west portion scheduled for which had been total project meantime, was a change there In the completion July later, administration, year almost one and on November its reviewed the final decision of Commission newly appointed type This of action opens and reversed that decision. predecessor the Administrative real “can of worms” up political each Upon change was set to avoid. up Procedures Act administration, any other state (or a new Highway free to and reverse all final will be review commission agency) has of its some technical requirement decisions predecessors deserves been set this case. The business a more up community deal state government. stable environment which to joins I am to state that Chief DUNN authorized Justice this dissent. SHAW, MISSION, OF v. CITY Respondent Appellant N.W. 2d 593)
(File 1975) February 11427. Opinion No. filed