*1 42 аllowing its discretion did not abuse trial court expert, speed testify, as to the as an E. Stensaas Eldon
Professor was a licensed Professor Stensaas automobile. of defendant's engineer investigating acci years experience automobile knowledge experience his special of his dents. Because determining the issue aid to court in opinion could be an 481, Huebner, 695. It is S.D. 104 N.W.2d speed. Wentzel 78 give opinion qualified may generally his held witness speed tire skid marks of a motor vehicle based or High Am.Jur.2d, Automobiles scene accident. Traffic, expert testimony p. way in this cаse does 543. § Gross, 80 come within condemnation of Kleinsasser v. expert's 129N.W.2d where conclusions invaded S.D. jury contrary province of the and lacked foundation as it was testimony eyewitnesses supported by and was not surrounding physical with the facts consistent accident. error, Finding assignments other no merit defendant's judgment appealed from is affirmed. BIEGELMEIER, J., WOLLMAN,JJ„ P. and WINANS con- cur. al., Appellants et v. HARRISBURGIND.
HANSON DIST., Respondent
SCH. 843) (190 N.W.2d 1971) (File Opinion 10892. filed October No. *2 Masten, Sam W. Canton, plaintiffs for appellants. Canton, Bogue, defendant Bogue, Rudolph Richard & respondent.
WINANS, Judge. County, South in Lincoln district is a school The defendant wit, elections, school bond successive held three It Dakota. plain- February March 1970. bring this who the defendant resident electors tiffs are which, any, are valid. of such elections if to determine action the authorization held on the first election was bearing $595,000 at a rate interest in bonds of the issuance *3 construct, furnish and to per be used annum to exceed 6% to building high of the school school equip an addition to by of the ballots more than 60% carried This election district. passed. The question, declared to have and was such cast marketing agent through there was its advised district was drawing attempt twenty-year interest. No 6% bonds market no by as had been authorized to sell such bonds made the board election. this a second bond election school district called defendant The purpose and for the same for the same issuance' of bonds for the at an rate of interest but annual as the first bond amount issuing 8%, the bonds authorized for and "in lieu to exceed not purpose held 1969." The vote at the election the same against. in favor and 157 Less election was 204 at this second being issuing bonds, in favor of such ballots cast than 60% the such bond election to have failed of district declared the school passage. called a third bond election school district
The defendant $625,000 3, 1970, pur- in bonds for a like to authorize for March "in pose, interest at a rate not to exceed 8% and lieu of to bear issuing purpose for the same bonds authorized the election official canvass of the 1969." The ballots cast at held June favor, against, spoiled shows 307 in with 2 or this election having ballots, requisite received more than the and blank 3/5ths vote, passed. was declared to the bond issue have favorable by the third attempted authorized sell the bonds defendant then However, questioning plaintiffs, the action of the election. bonds, April was commenced validity authorization of such purchase bids for the received no and the school district authorized at the third election. the bonds district, plaintiffs, taxpayers of the school electors selling enjoined restrained from defendants ask that offering by the election sell such as were authorized of March 1970. presented questions for review
There are a number of assignments up con first that which of error. We take It has noted the school district cerns the second election. been necessаry num bond of the declared this election have failed votes, ber of but more than votes cast favored the 50% of the assignment question presented by bond is wheth issue. The requirement equal er this of SDCL 13-19-16 violates 3/5ths Constitution, protection clause of the Article United States VI, Section 19 of the South Dakota Constitution. This effect question one-man, applied raises one-vote rule as provides, pertinent part elections. SDCL 13-19-16 in [*] [*] [*] but if less than three-fifths of the ballots cast shall issuing bonds, be in favor of such then further action shall again be had and the shall be submitted to a vote *4 thereafter, year except for one for a different amount." Jones, 1966, 617, Bailey In the case v. 81 S.D. 139 N.W.2d involving 385, County representation, Commissioner which em- person, doctrine, braced the "one quoted ap- one vote" we " proval, 'A geographically classification which discriminates * * * deprives rights a citizen of his constitutional the same by race, as one which discriminates reason or color. creed Ave, Dyer (D.C. 220, Hawaii, 1956)." v. F.Supp. Kazuhisa 138 236 However, it must be opinion noted that is limited to the fact Court, before the geographical which a discrimin- ation, and the indicated, Court's conclusion is "As the trial court's judgment declaring the Board of Commissioners of Minnehaha County be unconstitutionally apportioned must be and is affirmed."
46 1925, Whorton, case, Buck v. ex rel. State much earlier In a construing XIII of our 4 of Article 204 in § N.W. 48 S.D. stated, no indebted- Constitution, clearly provides that bonded "It vote, majority but less than incurred on ever be ness shall may on incurred provide indebtedness that bonded does majority." of a mere the vote Court, this United this case
Since submission made Supreme identical issue decided the has States Court Lance, 403 adversely Gordon plaintiffs to their contention. quoted In this case the 2d 273. S.Ct. L.Ed. U.S. сhallenge granted to a 60% vote to review a "certiorari Court public requirement as the Fourteenth debt violative of to incur through Burger, speaking Chief The Court Amendment". Justice said, not, people
"Wisely the State of West long Virginia from a since resolved remove have simple majority certain vote the choice on decisions may be incurred and what what indebtedness taxes will children bear. their long provisions that such do not
We conclude so against against or authorize discrimination discriminate Equal do not identifiable class violate meaningful Protection Clause. We see distinction be- debt, changeable provisions such absolute tween amendment, provisions only constitutional than legislative majority decisions vote in the on the legislature. same issues [*] require * * " more opinion Supreme our cited It is this United States Court supports in Gordon v. decision Lance the conclusion of this Court case, Bailey supra, and the rel. State ex Buck v. Whorton case, opinion supra. correctly We are the School District proposed that such bond issue declared the second election passage. failed of *5 brings
This now a us to review of thе first and third elections, problems concerning by plaintiffs bond raised right assignment questions appellant them. The attempt to sell the bonds make no defendant School Board to and instead call for another authorized the first at larger higher authori- election interest rate and for at a zation. first election the district to issue 6% bonds authorized $595,000. up attempt The district board to the amount made bonds, expert from its sell such the advice bond advisor there was no market for them. in at of all
SDCL 13-19-16 effect the date of these bond provided pertinent part: elections in questions
"If three-fifths of all ballots cast such issuing bonds, board, shall in favor be the school through officers, proper proceed its shall forthwith issue bonds in accordance with such vote".
SDCL 13-19-20 reads as follows:
"When the issue of
is authorized the
school board
published
shall cause at least
three
weeks' notice
legal
county
newspaper
in a
within the
and within the
district,
one, stating
if there be
the time when and the
place where sealed
for
bids
such bonds will be received
highest
and such bonds
shall be sold to the
bidder
par."
than
less
legislature
We believe
this to be clear. The
must have
said,
meant what
and the school board shоuld have followed
only
this
mandate
the statute. The
evidence on market con-
given
However,
expert.
ditions was
the bond
the board
statute,
did not follow the
and the
is what now is the
given
result. We believe
the answer
to this
an old Iowa
case,
Directors,
Hibbs v. Board
Township
etc.
District
Adams,
110 Iowa
81 N.W.
quote
We also City case after 211. In the Custer 79 S.D. 108 N.W.2d gen- issuing city issued bonds special in favor of a election obligation and caused to authorized bonds the amount eral pay property spread upon tax sufficient interest taxable a be due; taxes, they principal had when had collected some bonds, paid architect paid ihe had for services of an off some of chargeable properly project for which claims to the proposition issued. The to be voted on was a rescission had been Hospital. Municipal for construction of of its former vote held, such circumstances this Court "We thus conclude Under authorizing power to rescind a is not that vote bond issue upon municipality conferred or its electors. It cannot therefore subject of an made the initiative measure." be project third In our case the electors confirmed the rights Also, well as in the first. vested election as were assert- case, City first and third ed between the elections. The Custer found, right supra, "The also to rescind in the absence of statute authorizing rights a bond issue no vested a vote where have upheld. has in cases intervened some been The author of holding cited annotation states that most of above the cases so meetings and concludes votes of town or school district involve distinguished. unnecessary probably We can deem authority they may If be taken as for the to discuss these cases. having power рrinciple to vote a bond issue electors *7 vote, right implication by necessary they to rescind the the have generally applicable." at variance with the rule are (Pier, Walt, City Saylor of ex. Auditor The case State rel. al., Interveners), point 278 N.W. is in 66 S.D. not et case, Walt, supra, our is instant but instructive. In the City approved at of of Huron had the annual election a electors fully equipped a for of the construction bond issue the cost of auditorium, acquisition for the land a site which to governing negotiated body construct the same. with the grant Federal for a Government additional funds to aid the government a construction and for of its sale bonds. The offered grant large purchase city the bonds and to the a sum of subject money. The offer was made to certain terms and condi- tions, by city accepted by and was the resolution. Certain seeking city petition electors of the filed their to refer this res- rejection. approval said, olution to the electors for The Court question solely "If the resolution in disposition dealt with the by spring the issue of bonds authorized the voters of the support Legis- would authorities offer for a contention that the up through machinery lature did not intend set which the might electors reconsider at a referendum election that which approved previously had at a p. bond election. 43 C.J. Court, however, along right 951." The went with the § to have held, referendum the election because as the Court "No discussion required question is to demonstrate that the which confronted the spring electorate wholly at the question election was a different governing than was body before the municipality of the as it accepting considered the wisdom of proposal the October government.” Court, Thе Circuit in its Opinion, Memorandum and in its Findings Fact, found "That since the time the election of 24, 1969 there has been no per market for the cent school bonds of said District authorized said any election and at- only been futile". have tempt bonds would to sell such finding, support this level would the trial offered at evidence faith this case. fraud or bad no have and we marketing agent's testimony that there was the bond While entirely satis- tweny-year not school bonds for 6% no market concerning inquiry no he had made factory inasmuch selling any banks in the of the local possibility of finding Harrisburg area, say that trial court's we cannot clearly There for the bonds was erroneous. was no market there bonds, being in hold- for the the trial court was correct market ing school district act it would have been futile original attempted sell bonds. Because the to have had, the control result of circumstances within proposal as a board, ceased to exist a basis for action school high to the school board to construct addition voting building, anything were not to rescind the voters *8 subsequent elections. nothing emphasized in the that is record there
It should were members of the school district board that the to indicate advertising guilty in for bids bad faith not sealed of original If were hint that the board delib- 6% bonds. there erately follow literal command SDCL 13-19-20 failed to of strategem ap- who the will of the had as a to circumvent voters issue, original entirely question proved an bond different being record, no be before us. There such in the would evidence however, legal impediment subsequent was no to there elections. 24, 1969, If there had been no held on first election
the election of March had been first bond right question have would been raised as to the the electors $625,000 they for interеst. do 8% We not think lost right provide their because first election did not marketable question We hold that no bonds. was submitted to the electors given. authority presented rescind the The to the in both first and voters third elections was whether purpose providing authorized for should be funds con- struct, equip high building furnish and an addition to the
51 authorized is and interest amount the district. The of bonds similar only find a been unable to difference. We have . rescission, rescind, language has been or case. Where the done, to be found on what has been cases are used describe distinguished many They in the issue. can be both sides of right involved or a has instances as where a statute is vested right obtained, nor or or where neither a vested contractual Burlington, 138, City 116 Vt. statute involved. Denicore v. 582; Lincoln, 1954, 457, City Noble 70 A.2d v. 158 Neb. 63 1041; 475, Strenge Westling, N.W.2d A.L.R.2d v. 68 State ex rel. 34, 109;
1964, Marrs, 1932, S.D. 130 Orr N.W.2d Tex.Civ. 440; App., Community 47 S.W.2d Goedde v. Unit Sch. Dist. No. Co., 1959, Macoupin Ill.App. 2d 157N.E.2d 266. plaintiffs' next contention is ballot used that the propositions the March election contained two separately required by stated SDCL 13-19-11. "Separate — propositions. Whenever the school submission school bond propositions board determines two or more issuance electors, prоposition of bonds shall be submitted to the each shall separately, submitted, be submitted and if so treated and such printed purposes separate shall be one more as a ballots proposition." pertinent part
SDCL 13-19-12 is as follows: "Land, buildings, additions, improvements equip- single single purpose." ment at a location constitute a proposition submitted to voters was whether wanted *9 bonds, previously to issue in lieu pur- of those authorized for the Harrisburg pose improvements to the School District at a single location. used in
The ballot the third election reads as follows: "Shall Harrisburg Indеpendent District, the School Board School No. 91, County, gen- of Lincoln South Dakota be to authorized issue obligation eral bonds of the District in an amount not to exceed bearing $625,000.00 exceeding interest at a rate or rates not 8% annum, maturing per serially and within years not to exceed 20 52 issue, provide to be used funds to respective dates
from their high construct, equip to the an addition furnish and to issuing District, building bonds authorized in lieu of 24, 1969? purpose held the election at for the same issuing bonds n For issuing Against bonds".
n and 13- of SDCL 13-19-11 construction a fair We believe contemplates "proposition" tо referred the word 19-12 is that By purpose? for? What used. What the bonds are to be how proposals pertain very to issue statutes terms these two their proposals in this case. The are involved No two such bonds. principle in 43 proposal did violate the stated as submitted Obligations, follows, Am.Jur., 91 "The Public Securities § being position compelled put to ac- into the voters cannot be sought proposition cept purpose which bonds are or for one merely coupled they because it is which do not desire be issued desire, purpose proposition which another or do or to reject purpose proposition satisfactory or which is it is a because coupled opinion which is not." Nor in our with another does such proposal do violence to our statutes. Falls, City
In of Sioux 48 S.D. 205 N.W. Julson question plaintiffs, purpose cited the submission of a "for the constructing, acquiring, equipping, operating plant" production electricity transmission was held to be proposition. invalid in that it submitted to the voters dual held, unquestioned "It is law Court the voter should have — is, opportunity really express opinion an his he should opportunity separately upon have an to vote of a separate, independent, bond issue for each and distinct con- templated purpose." The vote at the third election was one purpose. distinct For propositions a further discussion Compton, submitted at bond elections see the case Kellams v. Mo., 206 S.W.2d cited in 4 A.L.R.2d and the annotation through inclusive, pages 621-633. §§ *10 by plaintiff defendant also contended
It properly pass, publish a res did not record and school district calling necessity that such a bond and olution of making proceedings In would void the issue the bonds. failure (1) plaintiff published this contention the minutes states Necessity, did not disclose the vote taken on the Resolution of or (2) favorable, Necessity that such and the Resolution of vote published. itself was not provides upon 13-19-10
SDCL as follows: "An election issuing shall be called a resolution calling declaring of the school board such election and expedient bonds, necessary and to issue which resolution shall length signed minutes, by be entered the clerk president, and attested the clerk n [*] [*] [*] ." requires independent
SDCL 13-8-27 clerk of an school journal keep district proceedings board an accurate of the "Approval SDCL board. 13-8-34 reads as follows: — signing independent of minutеs of district board. The school independent approve board of the district shall the minutes of meeting every forty-five days the board within after such meeting. presiding officer the school board and the clerk manager sign regular or business shall the minutes of all meetings special the school ap- board after have been proved by board." amended, 13-8-35 pro-
SDCL Session Laws meeting twenty days vides: "Within after such of the school district, board of publish- board shall cause legal newspaper published ed in district, the official within the none, serving newspaper district, or if there is in a such a full unаpproved proceedings meeting account of the of such * ** board journal kept by minute book record the clerk of the district was received in evidence Exhibit 5. The minute book bound, up pages. is made pages numbered At numbered meeting 198 and 199 are the minutes of the board February held present. meeting with all board members At this *11 54 following "A motion record: appears the page 199 at as shown necessity adopt of a resolution Reit, by Poppinga by seconded Tuesday, March 1970 held on to be special election
for a (Original copy high of said resolution gymnasium. schоol the in District)". of record minutes to official attached them, or included pages and 198 Between pages loose-leaf number of are a record book minutes bound A to L inclusive. trial and numbered at the identified were which initiating bond election of proceedings the pages show the These heading being 3, 1970, E The B to inclusive. numbered March Reit introduced the fol- page "Member Herman B is number lowing adoption:" appears Then at its and moved resolution Declaring length Necessity "Resolution entitled the instrument Providing Bonds, Expediency and For Sub- of Issuance and Question Speciаl At A Election". This instrument mission of issuing general money by necessary to borrow it is states exceeding $625,000 obligation not at a in an amount rate bonds exceeding annum, per and further not 8% describes of interest substituting provided necessity in lieu of these bonds the things All of these are set forth in considerable in first election. the of the board voted in favor. The said All members res- detail. signed passed adopted duly and was declared and was olution Clerk, by by page the President and attested School District E. Posting
Page pages A of the loose-leaf is the Affidavit of Special Election called for March 1970. Notice 10, 1970, posting public places, in three was done Feb. signed sworn to the affidavit School District Clerk. publication 4 is Exhibit the affidavit of of the minutes of the meeting 9, 1970, February published held as school board News, Canton, Valley newspaper, published official Sioux County, necessity South Lincoln Dakota. The resolution being pages, part B set forth in Exhibit of the loose-leaf of Ex- mentioned, published part hibit above was as a of such minutes, published set out in such nor is there minutes as upon adoption the vote record of of a resolution following necessity. published only The minutes as show Reit, by Pop- to the third bond election: "A motion seconded pinga adopt necessity special a resolution of for a bond elec- high Tuesday, tion to be held on March 1970 in the (Original gymnasium. copy of said resolution attached to of- District.)" ficial minutes record of publication
Exhibit 7 is special an affidavit of of notice of election to be held in the district on March to vote published issuance of bonds. It Valley in the Sioux *12 following News for three successive weeks dates: Feb- ruary 19 and 26. Eggers, board,
Mrs. the clerk of the school testified with reference pages the loose-leaf as follows:
"Q prepared Board, When these minutes were
course, did not know who would make the motions and who would second them and who would vote against for or them?
A When up, the forms were you made is that what
mean?
Q Yes. No, A were acted on after we received these at the
meeting. Q you Did add the action taken the Board as it
appears page? on the
A Yes.
Q meeting? That was after the
A That was meeting, within the I mean.
Q But in connection with the action taken as shown on K,
page you added that already provid- the form ed?
A Yes.
Q pages A K were papers these minutes or These meeting completion that at and available
at the time? referring necessity? you
A Are to the resolution Q Yes. on at time They acted
A looked over and were meeting." that disputed find we must From is not this record which on and necessity and acted the board was made resolution printed However, full in appears it was not on. that voted legal publication county. make newspaper did within the gave necessity notice the resolution reference original copy record attached to the official minutes course, This, compliance the statute is not a district. strict governing minutes, publishing but we believe the evidence compliance statutory requirement with the shows substantial length by on the shall be clerk "resolution entered Furthermore, a resolution of a school district becomes minutes." *13 pro- passing publication. without SDCL 13-8-33 effective vides, majority of a of members school board "Assent of the the required to take aсtion as a school board. shall official All official a school board relative to motions or resolutions acts of meetings passed of such at board become effective at time the expressly provided passage therein." unless otherwise Porter, N.D., In District 130 N. Linden School No. 24 v. stated, sufficiency passing "In the on the of W.2d Court kept by con a school board of a common school district minutes given ordinarily members should be fact that sideration keep experts in a and its clerk the field of of such board are meetings ing proceedings and records of such bоards of large informally. will extent conducted Such minutes are given irregularities therefore not be technical construction and disregarded, will be where minutes are and informalities sufficient board's intention." show the holding judgment of the election the Circuit Court holding 3, 1970, passage, February the elec- failed of to have authorizing 3, 1970, March the sale tion of to be valid and provided by bonds authorized 'such election in lieu of the 24, 1969, hereby election is affirmed. June WOLLMAN,JJ„ HANSON concur.
BIEGELMEIER, ]., dissents. P. Presiding Judge (dissenting).
BIEGELMEIER, Three elections are involved here: election, 24, 1969, 1. The first authorized issuance $595,000 passed by in 6% bonds which wаs over marketing agent 60% ballots. As a stated them, attempt there was no market for was made to sell them. election, 3, 1970, February
2. The second was for $595,000, amount, the same bonds and 8% includ- issuing" ed a statement it was "in lieu first bonds. It received a favorable vote of 204-157 60%, which was over 50% but less than so the school district declared election to have failed. $625,000
3. The third
March
was for
8% bonds and also included the statement "in lieu
issuing"
first
election bonds. The vote was
against,
307in
majority
favor
a 60%
and the
passed.
issue was declared to have
Neither the
power
school district officers nor its electоrs had
authorizing
to rescind a
City
vote
the bond issue. Custer
*14
Robinson,
91,
Therefore,
79
appears
S.D.
The school board authorized Minneapolis exempt bonds of a bond dealer the 6% tax board, duty not be could sold. It was the of the school as directed 13-19-20, place publish SDCL of a time and a notice highest receive sealed bids for the so to sell them to the legislature required That To bidder. is what to do. board dissenting Black, quote People Hampton, Justice 384 Mich. 187 N.W.2d we have 404 at seems "all " English intelligently' in this to do is 'to read case to understand legislature what meant in SDCL 13-19-20 when it directed: "When the issue of bonds is authorized the school pub- shall board cause at least three weeks' to be notice *15 legal county newspaper and within within the lished in a stating one, district, when and the the time if thеre place * [*] where sealed *" (Emphasis bids for such bonds supplied). will be received event no bids were action the have taken in the What board could legal complied step is not us as this was not with. received before reasoning, approving Under this the first election issue remains in effect and the second and third elections were of only force and effect. the result reach- difference between majority my majority opinion ed conclusions reasoning approves my approves the third election and the first. result, practical there is prin- While thus little variance as a ciples require of law involved this dissent. WITT, Appellant WITT,
DE Respondent v. DE
(191 177) N.W. 2d (File Opinion 1971) No. 10891. filed October