In thе Matter of A NOTICE AND DEMAND TO QUASH AN ALLEGED, NON-JUDICIAL DISTRESS CERTIFICATE, ALLEGEDLY ISSUED BY the TREASURER OF DAVISON COUNTY, STATE OF SOUTH DAKOTA
No. 14067
Supreme Court of South Dakota
Decided Nov. 2, 1983
Considered on Briefs Sept. 12, 1983
785
More importantly, a key finding which the majority would sweep under the rug is: Holy Rock tоld the officer that the marijuana was not Mike Abourezk‘s and that Mike had “nothing to do with it.” This is suppоrted by Holy Rock‘s testimony at the suppression hearing. It stands undenied on this record. Even at thе hearing below where the deputy sheriff testified, the state‘s attorney made no attemрt to dispute that statement. A reading of the transcript in the hearing below clearly shows that the trial court below was greatly troubled by that statement.
Since the record below сlearly supports these findings by the trial court, I cannot conclude that they are “clеarly erroneous.” I would affirm.
Charles Krall, pro se.
Patrick W. Kiner, Davison County State‘s Atty., Mitchell, for appellee Davison County.
Drew C. Johnson, Sp. Asst. Atty. Gen., Aberdeen, for appellee Unemployment Ins. Div., Mark V. Mеierhenry, Atty. Gen., Pierre, on brief.
WOLLMAN, Justice.
This is an appeal from a judgment denying Dr. Charles Krall‘s motion to quash the distress warrant that was issued subsequent to Krall‘s refusal to pay unemployment insurance and the filing of a lien upon his property. We affirm.
The unemployment compensation divisiоn of the Department of Labor (Department) determined in May of 1982 that Krall owed unemрloyment compensation tax in the amount of $234.36 plus interest at the statutory rate. For several years prior to 1980, Krall, as the individual owner and operator of business dealing with оptometry in Mitchell, South Dakota, had filed the required quarterly reports for unemployment insurance purposes. On or about May 26, 1982, Department informed Krall of its determination thаt he was an employer with unemployment compensation tax liability and that he had a right to appeal the matter within fifteen days. On or about June 15, 1982, Department again wrotе Krall, answered certain questions, and again advised him of his right to appeal within fifteen days.
Krall does not challenge the distress warrant on the grounds that it violated any statutory provision.* He instead has raised several issues regarding Department‘s authority to tax him and its authority to require payment in anything but gold аnd silver.
Krall raised the issue of his tax liability in the circuit court without having first raised this issue by way of proper administrative appeal. The trial cоurt correctly concluded that Krall‘s failure to exhaust his administrative remedies precluded it from exercising jurisdiction over the matter of Krall‘s tax liability. Light v. Elliott, 295 N.W.2d 724 (S.D.1980); City of Ft. Pierre v. Van Ness, 265 N.W.2d 267 (S.D.1978); Gottschalk v. Hegg, 89 S.D. 89, 228 N.W.2d 640 (1975). This is not a case where because of the absence of an adequate administrative remedy or becаuse of administrative inaction appeal to the courts is proper. Cf. Weltz v. Bd. of Education of Scotland Sch. Dist., 329 N.W.2d 131, 132 n. 1 (S.D. 1983); Mordhorst v. Egert, 88 S.D. 527, 223 N.W.2d 501 (1974).
The judgment is affirmed.
FOSHEIM, C.J., and DUNN and MORGAN, JJ., concur.
HENDERSON, Justice, concurs in result.
HENDERSON, Justice (concurring in result).
I concur in the results of this opinion entirely but must express my disapproval of the Light citation. As I pointed out in my dissenting opinion in Light, the failure to exhаust an administrative remedy was never before the trial court and not urged at appеllate level; here, however, failure to exhaust an administrative remedy was the principal holding of the trial court and is now briefed. Procedurally, the cases are before us on a different footing.