178 N.W. 981 | S.D. | 1920
Lead Opinion
This is an original action in quo warranto, the object of which is to have declared void the purported creation of Garretson independent consolidated school district. The cause was submitted upon the pleadings. The purported district consists of territory formerly constituting one independent school district, four common or rural school districts, and the greater portion of two other common or rural school districts; the independent district of the city of Garretson, in Minnehaha county, being the approximate center of the new district. This case differs from Isaacson v. Parker, 176 N. W. 653, in that the proceedings for consolidation were not begun until January, 1920, long after the taking effect of chapter 170, Laws 19x9, which amended section 7569 Rev. Code 1919, while the Isaacson case arose under section 1, c. 194, Laws 1913, later codified as said section 7569.
As we said in Isaacson v. Parker, supra, the Code commission clarified the legislative intent by providing in section 7569, Rev. Code 1919, that—
“For the purpose of promoting a better condition in rural schools * * * two or more common school districts may consolidate.”
The same Legislature which adopted the Revised Code promptly amended that section by said chapter 170, which provided for the consolidation of two or more school districts of any kind “for the purpose of improving the school system of this state.” In view of the history of this legislation we have no doubt that the Legislature of 1919 intended to permit the inclusion of an independent school district in a consolidated district. With the wisdom of such legislation we are not concerned, but by changing the words “common school districts’.’ to school districts of any kind,” and the words “better condition in rural schools” to “improving the school system of this state,” it is entirely clear to us that the words “school districts of any kind” should be given their usual and ordinary meaning, and therefore that the Legislature contemplated that independent school districts were proper subjects for consolidation. It is urged that because chapter 171, Laws 1919, provides that upon dissolution of a consolidated district the former districts shall be “reorganized as common school districts,” the legislative intent must be presumed
Whether the Legislature may, in face of the above constitutional provision and of Const, art. 9, § 1, authorize voters of one county to vote in another county in case of the attempted consolidation of districts in two or more counties, we do not determine. That question is not before us. In the case at bar all of the districts sought to be consolidated were in Minnehaha county. We perceive no constitutional reason why the Legislature may not fix any place in the proposed district as the polling place at which the electors of each of the component districts may vote if such districts are all in the same county. Such a legislative provision is virtually the designation of the whole area proposed to be consolidated as one election precinct.
“The Legislature in the exercise of its.inherent plenary power*212 may create, alter, or extend the boundaries of school districts at pleasure without consulting any of the inhabitants thereof, and although it may make taxation more burdensome, such as authorizing the formation of newt districts or by creating new districts by consolidating two or more districts.” Stephens v. Jones, 24 S. D. 100, 123 N. W. 707.
“The debt of any county, city, town, school district, civil township or other subdivision, shall never exceed five (5) per centum upon the assessed valuation of the taxable property therein, for the year preceding that in which said indebtedness is incurred.
“In _ estimating the amount of the indebtedness which a municipality or subdivision may incur, the amount of indebtedness contracted prior to the adoption of the 'Constitution shall be included; provided, that any county, municipal corporation, civil township, district, or other subdivision may incur an additional indebtedness, not’ exceeding ten per .cent per centum upon the assessed valuation of the taxable property therein, for the year preceding that in which said • indebtedness is incurred, for the purpose of providing water and sewerage, for irrigation, domestic uses, sewerage and other purposes; and provided, further, that in a city where the population is eight thousand or more, such city may incur an indebedness not exceeding" eight per centum upon the assessed valuation of the taxable property therein for the year next preceding that in which sai'd indebtedness is incurred for the purpose of constructing street railways, electric lights or other lighting plants. 'Provided, further, that no county, municipal corporation, civil township, district or subdivision shall be included within such district or subdivision without a majority vote*213 in favor thereof of the electors of the county, municipal corporation, civil township, district or other subdivision, as the case may be, which is proposed to ibe included therein, and no such debt shall ever be incurred for any of the purposes in this section provided, unless authorized by a vote in favor thereof by a majority of the electors of such county, municipal corporation, civil township, district or subdivision incurring the same.”
The precise point urged is that the first portion of the third proviso ending with the words “proposed to be included therein” relates back to the first sentence of the section. It is therefore insisted that this attempted consolidation was void because the vote was not taken separately in each district, and -because there was not the requisite affirmative majority vote of the electors of any of the districts except the district in which the election was held.
As originally adopted, article 13, § 4, contained but two sentences. So far as any question now before us is concerned, those two sentences wtere to the same effect as the present first sentence and second sentence as far as the first proviso. At the election of 1896 two provisos were added, somewhat similar to the present first and third provisos. The first permitted the incurring of an additional debt of 10 per cent, by a county, municipal corporation, civil township, district, or other subdivision for the purpose of providing water for irrigation and domestic uses. The then second proviso declared that no county,, municipal corporation, or civil township should be included within any such district without an affirmative majority vote of the county, municipal corporation, or civil township which was proposed to be included therein. Manifestly those two -provisos related to water districts or irrigation districts which might of might not embrace more than one corporate entity or unit. For example, if the question was one of irrigation and by the law the county was the unit, two counties could not have been organized as an irrigation district without the consent of each. If only one corporate entity was concerned, then of course the then second proviso had no application because it would not then be a case of including a county, municipal corporation, or civil township in a water district or irrigation district. The then first and second provisos related to nothing -but water.
The second proviso relates only to cities having a population of 8,000 or more, and contains no clause by which any area other than such city may incur an 8 per cent, debt for street railways and lighting plants; consequently its provisions are not material to any question before us.
In Spangler v. City of Mitchell, 35 S. D. 335, 132 N. W. 339, Ann. Cas. 1918A, 373, this court held that the last portion of the third proviso, beginning with the words “and no such debt,” did not relate to the first sentence of the section. We likewise here hold that the preceding portion of the third proviso does not relate, to said first sentence, but relates only to the first proviso. In other words, it applies only to water, irrigation, or sewerage districts embracing more than one corporate entity or unit.
Believing the complaint in this action to be without legal merit, we think the action should be dismissed upon its merits, with costs to defendants. It will be so ordered.
Concurrence Opinion
While I concur in the result reached, I do not concur in the limited construction placed on that part of section 4, art. 13, Const., which reads as follows:
“That no county, municipal corporation, civil township, district or subdivision shall be included within such district or subdivision without a majority vote in favor thereof of the county, municipal corporation, civil township, district or subdivision, as the case may be, which is proposed to be included therein.”
Concurrence Opinion
(concurring specially.) I concur in the result reached by my Colleagues. I concur fully in what they say relating to the constitutional questions raised. My -reasons for concurring in the holding that "independent districts” may be included in “consolidated districts” will be found stated in my dissenting opinion upon the rehearing in Isaacson v. Parker.