*1 MORRILL, Petitioner, David E. WOLLMAN,

Harvey Governor Dakota, Respondent.

State of South

No. 12580. Dakota.

Supreme Court South 18, 1978. Oct.

Argued 7,

Decided Nov. 13, 1978. Denied Nov.

Rehearing *2 residency in a county

discusses in which a state educational institution is not located qualification Regents. as a for Board of Wollman filed an answer to the applica- for prohibition tion a writ of and counter- quo claimed for a writ of warranto chal- lenging right to Morrill’s hold office. In counterclaim, Wollman alleges that as a change result of Morrill’s of residence Mor- rill forfeited his seat a thereby creating vacancy and the Governor of South Dakota required by is statute to fill vacancies on the Board of Wollman further alleges that since the change of residence Morrill has been and is now wilfully usurp- ing, intruding holding into and unlawfully exercising any his office right, without authority, legal justification therefor. 3, 1978, we jurisdic- On October declined application over for a writ prohi- tion jurisdiction bition exercised over the counterclaim for a writ of warranto. A quo full before the Court was held dur- hearing 18, ing regular session on October The first issue before is whether the us Morrill, Hansen & Bruce A. Hubbard of residency for qualification members of the Hubbard, Sturgis, James petitioner; for S. a Regents continuing require- Costello, Porter, Hill, Nelson, Nelson of ment. The statute is SDCL Bushnell, City, Heisterkamp Rapid & pertinent 13-49-2 reads in as fol- part brief. lows; Kommann, Asst. Sp. Atty. B. Charles regular “The who are members Aberdeen, Gen., respondent. for shall probity and wisdom known among selected the best DUNN, Justice. citizens, portions residents of different original proceeding involves an This case state, reside in none whom shall regarding dispute court a over a before this in which educational January the Board of On seat on located, shall institution is all of whom 30,1975, appointed petitioner Morrill was not be members of the same Regents six-year a term. the Board of for party.” his Morrill was appointment, At time of provision only argues Morrill County, a of Meade South Dakota. resident the initial for selection to 1978, Morrill moved his resi- August On and, a since it is not Pennington County and subse- dence to continuing requirement, govern an for a writ of quently application filed vacancy. argues the creation of a Wollman was application filed prohibition. the provision’squalifications constitute Wollman, the anticipation respondent continuing requirement regents. a for Dakota, going was Governor of South change of the re vacancy opinion a as a result The obvious difference of declare replacement garding change residency a the effect of a and name residence us vacancy prompts a declaration would be de- on to ascertain Morrill. Such 13-49-2, legislature. wording which intent pursuant clared SDCL provision appears regu- to dictate that S.D. 285 N.W. this court “[wjhere lar members be selected from counties in held that party accepted has law, which state educational institutions are not benefits of a he cannot question its interpretation validity.” We provi- Our still deem this to be a sound located- however, policy sion, requires the conclusion that where the petitioner’s *3 challenge only qualification personal such a cannot be limited mere- involves his right to hold a public Morrill, ly however, to the time of selection but office. must be at- tacks the during constitutionality continuing grounds in nature the term fol- that the law lowing particular regent’s against selection. discriminates a sub- stantial portion of the Any totally illogi- other conclusion would be citizens of the state who live within institutional provisions nugatory. cal and render the counties. This question raises a public of importance during Counsel for Morrill admitted oral as opposed personal to a right office; to hold argument that the intent was to it is reasonably capable repetition if not proscribe members of the Board of clarified; and strict adherence to the Col- serving residing while in an institu- lins decision probably would proscribe any county. legislature tional has re- method of appellate Thus, review. we peatedly considered bills to remove the re- deem it appropriate to consider the consti- quirement not reside in coun- tutional issue by raised Morrill. ties in which state educational institutions located, are consistently and it has ex- Our review of the constitutionali pressed a require- desire to maintain the ty any statute carries with it a presump ment refusing adopt legislation. tion of validity statute, and we If the prescribes will not hold a statute unconstitutional un particular office, for a appointive less its violation of constitutional dictates is qualifications must be deemed to be contin- plain “so palpable to admit of no rea uing unless the expressly de- sonable doubt.” McDonald v. School Bd. of Therefore, clares otherwise.1 we hold that Yankton, 1976, S.D., 93, 97, residency requirement provided in quoting In re Hinesley, 1967, 82 S.D. continuing qualification SDCL 13-49-2 is a 150 N.W.2d 834. The two-part test utilized members of the Board of when a statute is called question into be cause of an alleged denial protec presented second issue is tion is as (1) follows: whether the statute residency requirement whether up arbitrary classifications among vari 13-49-2 equal protection SDCL violates the ous subject to it and whether guarantees prescribed in the there is a rational relationship between the Fourteenth Amendment of the United classification and legitimate some legisla VI, States Constitution and Article 18 of § purpose. City of Aberdeen v. Meiding the South Dakota Constitution.2 We are er, 1975, S.D., 233 N.W.2d 331. first met with challenge to Morrill’s standing the constitutionality of The statutory classification in a statute appointed, under which he was question is based residency in counties paid. Siewert, served and In Collins v. containing institutions, state educational i. example, provides 1. For SDCL 3-7-1 for a States; ties of citizens of the United nor shall State any Police Civil Service deprive Commission consist- any person life, State liberty ing members, of five “not more than three of property, law, process or deny without due nor whom shall be members of the same any person jurisdiction within its party appointment, at the time of their and not equal protection of the laws.” more than three of whom shall reside at the Constitution, VI, South Dakota Article appointment congres- time of their in the same reads as follows: (emphasis added) sional district.” passed granting any “No law shall be citizen, corporation, privi- class of citizens or Constitution, 2. United States Amendment leges or immunities which the same Fourteen, reads as follows: equally belong terms shall not to all citizens “No state shall make or enforce law corporations.” abridge privileges which shall or immuni- possible counties Board to the extent e., residing in such from localized individuals pressures View- by preventing appointment on the Board not serve representatives by protect- terms of tradi- classification in ing opposed ing against appointees as overzealous becom- reasonableness test of tional test,3 ing champions fact that the of institutions located strict in counties distinguished they appointed. between citizens from which state has temptation the classifi- The statute also minimizes the does not render such a manner arbitrary. regent that would exist for a in an institu- Morrill unreasonable or cation tional county county use boundaries to become involved in the argues that daily are not viable administrative functions of the insti- arbitrary they totally social and tution. We find that these contemporary in a considerations dividing lines legitimate legislative constitute legis- purpose, fact that context. The economic and we instead of conclude that there is a rational lature chose *4 relationship legitimate legisla- of classifica- between this precise more means some other Perhaps purpose we in tive and the not concern us. classification based tion up conjure upon residency some in counties containing wisdom could state our collective means ac- and rational educational institutions. expedient more legislative purpose, the but complishing We can find no violation of constitutional wisdom, policy, function. The is not our palpable dictates and plain “so to admit of methods of necessity, expediency carry- and no doubt.” reasonable Based the fore- are for legislative purpose the the ing out conclusions, going we hold the residen- that only We concerned with legislature. are requirement cy in SDCL 13-49-2 does not act, and, as constitutionality long of an the equal protection violate the a between as there is rational guarantees prescribed the Fourteenth purpose the classifica- legislative and the of the United Amendment States Constitu- tions, not v. we will intervene. McDonald VI, 18 tion and Article of the South § Yankton, supra; Behrns v. Bd. of School Dakota Constitution. S.D., Burke, 1975, leg- 86. The issue de- Accordingly, judgment a shall on sever- examined this statute islature has a the claring vacancy on Board of shortcomings of when all of the al occasions a criterion have county boundaries as using WILDS, MORGAN, J., and HALL and made, change No has been presented. been Judges, Circuit concur. into this area would venture and the court’s ZASTROW, J., dissents. authority. on Ac- trespassing legislative be compelled are to conclude cordingly, we HALL, Judge, sitting for WOLL- Circuit arbitrary classifica- up the statute sets that MAN, J., WILDS, Judge, C. and Circuit citizens. among the state’s tions PORTER, J., sitting disqualified. for objective legislative pur- or stated ZASTROW, (dissenting). Justice requirement in the pose residency the for that agree majority opinion I with the years and its has been discussed statute 13- residency requirements of SDCL appointees If extensively. debated merits are to the time of selection 49-2 not limited could reside Regents to the qualification requirements but in fact containing educational insti- counties during the term of each continue pressure tutions, political considerable of Regents. member the Board the Governor brought to bear on would be agree Regent standing I counties that Morrill’s of those institutional have each challenge constitutionality should not be attempts further statute represented. v. prohibited under the rationale of Collins objectivity integrity to maintain 477, 518, Siewert, 1939, 66 285 N.W. Regents to insulate the S.D. the Board requiring compelling best, state inter- sitting cial is a 3. At See, justify v. granted est to the classification. Behrns privilege could 88, Burke, 1975, S.D., 86, right 229 n. 7. N.W.2d a fundamental not be deemed be judi- suspect for strict which calls 360 constitutionality of the stantial having

because the statute difference a reasonable rela- question great tionship purposes sought interest to the to the to be ac- complished by legislation. Quaker is within the general public preroga- that it City Cab Co. v. Pennsylvania, to decide this Commonwealth of of this Court matter. 1928, 389, 553, 277 48 Kennedy, S.D., U.S. S.Ct. 72 See Anderson v. L.Ed. 927. There seems to little N.W.2d 714. requirement the nonresidency of SDCL 13- agreed having to decide the 49-2 up a classification which must statute, constitutionality majori- satisfy equal protection requirement. ty reaches to be an what I consider errone- First, we must determine what is the my opinion ous conclusion. It is purpose of nonresidency clas- residency requirement of SDCL 13-49-2 es- majority opinion sification. The declares arbitrary tablishes an classification which legislature’s purpose (1) was rests difference basis of which has avoid the pressure upon gover- pur- no fair and relation to the substantial nor to select from each of the insti- and, therefore, pose of the legislation; is a counties; (2) tutional to insulate the Board protection violation of the clause of pressure by localized preventing ap- the Fourteenth Amendment of the United pointment of representatives; Reed, (Reed States Constitution protect appointees from becoming 225), U.S. 30 L.Ed.2d S.Ct. champions of institutions located in their VI, Article 18 of South Dakota Con- *5 counties; own and to minimize regents (City stitution Aberdeen v. Meidinger, of from interfering daily in the administrative 1975, S.D., 331).1 functions of a local institution. The respon- Meidinger, In stated this Court that dent, suggests Governor Wollman a further “Equal protection require not that all purpose, e., i. that the pres- socio-economic identically, persons be dealt with but it does upon sures a regent follows county bounda- require that a distinction made have some ries. purpose relevance to the for which the clas- This Court Burke, 1975, said in Behrns v. sification is made.” 233 N.W.2d at 334. In S.D., 229 that although N.W.2d we will Meidinger the found that court there was not judgment substitute for that of “[our] legitimate purpose no legislative for the the regarding the wisdom of the classification, obviously and thus there statutory purpose is an examination by —it relationship could be no rational between this court to that the persons ensure affect- the the legis- classification and non-existent by ed a statute are those that should be lative purpose. reached to legislative achieve desired It is to indicate my not intent that ends.” 229 at words, N.W.2d 89. In other prescribe qualifications may not the court accept any legitimate will legisla- office; for the can set it purpose substituting without its wis- basis, which rational recognized have a dom for legislature’s.2 But the court age, training as integrity, residency is must then on continue and must examine Harper Virginia well established. State and determine whether the basis of the Elections, 1966, Bd. of 383 86 U.S. S.Ct. classification of the citizens into eligibles (i. e., 16 L.Ed.2d 169. when it those residing without an institutional seeks to a classification of employ those county) (i. e., ineligibles and those residing prescribed qualifications, who meet the the within an county) bears a real be non-discriminatory classification must and having substantial difference a reason- protection requirement and meet the able purposes sought to it be a realistic and be accomplished based sub- by legislation. Reed v. agree majority Except, course, 1. I with the that this is not a of City situations such as “suspect Meidinger, 1975, S.D., or a “fundamental interest” classifica- of Aberdeen v. race, religion, origin tion” based national N.W.2d legiti- where the court can find no test; requires legislative purposes. or sex which a strict but mate is to be considered the rational-relation test. con- institutions Reed, majority simply involved. But supra. real question in each instance people exclude is whether county that the statute does cludes boundaries, established 1800’s, influences and in the late subject these who realistic, provide a pur- rational accomplishes legislative and reasonable therefore true, basis for classification of those certainly but that is That is pose. qualified to otherwise be selected to the enough. In my opinion the an- realistic, rational, reasonable to it Is swer is NO! The pressures influences and population 40% of the exclude some upon any will be appointed member to the Is accomplish purposes? If the member is con- realistic, rational and reasonable there a cerned, be, as should he/she about the fu- 100,000 distinguishes plus difference higher ture of education in the state the Min- within residing the confines citizens pressures influences will not affect citi- County and those well-known nehaha their vote. If the lacks that member con- Palls, city within limits Sioux zens susceptible cern and is such influence and Lin- within the residing but pressure it little matters where his county af- people Are all so County? these coln residence is. they must be by the influences that fected deny I would the writ quo warranto achieve reached to desired provision that the and find of the statute ends? that a requiring member of the Board of realistic, ra- statutory Is the (not) “shall reside the citi- if it excludes and reasonable tional state educational institution is Quinn, to 60 miles zens of Wall is a violation of equal protec- located” Rapid City, Mines in School tion clause of the Fourteenth Amendment subject but to these influences they of the United States and Arti- Constitution Piedmont, who are within the residents VI 18 of the cle South Dakota Constitu- just of the School of Mines but few miles tion. line, County are not? Cer- the Meade inside Although, there are methods Court the citizens of tainly the economic life of *6 suggest could result in more would dependent community much more classifications, realistic that is not our func- City and the state institution upon Rapid responsibility legisla- tion. It is the of the many than citizens of located there identify clearly objectives ture to of the Pennington County. eastern distant qualifications and then the classi- establish is reasonable it be said there Can upon real and fications substantial differ- a Butte rational difference between having a ences reasonable to residing as near as five County resident objectives sought to accomplished. be College Black from the Hills State miles necessary for may It resident, forty a Nemo miles campus, and address each institution and the socio-eco- campus, simply from the distant surrounding area it nomic to establish the county the location of boundaries? necessary may classifications. It be that example of the unrealistic and The best type one will not meet the may of the classification unreasonableness sought legislative purposes applied when city of Irene. The involve residents each institution. Clay, city is trisected present should not be allowed retain the eligibil- Turner and Yankton Counties. arbitrary and unconstitutional classifica- the otherwise citizen ity qualified tions because reasonable and rational classi- by the regent simply decided serve as fications be difficult enact because lives, and the street which he side of considerations. are reason- purposes none of the

ably served. can be for each coun- examples made space prohib- Time and

ty and institution. of each of the counties

its the examination