Dunker v. Brown County Bd. of Ed.

• Decision Date: 15 April 1963
• Docket Number: Nos. 10009,10010,s. 10009
• Citation: 80 S.D. 193,121 N.W.2d 10
• Parties: Harry H. DUNKER, Robert J. Borchard, Edwin E. Rietz, Maurice Samuelson and Ray Dunker, Appellants, v. BROWN COUNTY BOARD OF EDUCATION, a Public Corporation of the State of South Dakota, Respondent.
• Court: South Dakota Supreme Court

Page 10

121 N.W.2d 10

80 S.D. 193

Harry H. DUNKER, Robert J. Borchard, Edwin E. Rietz, Maurice

Samuelson and Ray Dunker, Appellants, v. BROWN COUNTY BOARD OF EDUCATION, a Public Corporation of the

State of South Dakota, Respondent.

Nos. 10009, 10010.

Supreme Court of South Dakota.

April 15, 1963.

Rehearing Denied May 8, 1963.

Agor, Bantz, Siegel & Barnett, Aberdeen, for appellants.

R. M. Schutz, Aberdeen, for respondent.

RENTTO, Judge.

After the Brown County Board of Education adopted and obtained approval of a county master plan, it adopted a substitute plan within the master plan by which 26 districts would be reorganized as Warner School District No. 230. Petitions were filed by these districts requesting that the substitute plan be submitted to the electors of the proposed district. In the election held for this purpose on February 23, 1961, 13 districts voted in favor of the proposed reorganization.

At a special meeting of the County Board of Education held on February 27, 1961, it determined that 12 of the districts favoring the proposal would be a feasible district. The other district in favor of reorganization was omitted because it was not contiguous. The Board also directed the county superintendent to issue an order creating the Warner Independent No. 230 School District. This she did on February 28, 1961, with an amendment thereto issued on March 2, 1961, correcting an error in the legal description of the area included in two of the districts involved.

The above named appellants on May 24, 1961, filed one appeal to the circuit court from the Board's action approving the district and another from its action directing the superintendent to issue an order creating the district and her actions thereunder. After a consolidated trial of these two matters the circuit court entered its judgments dismissing the appeals. Appellants appeal from both judgments. One opinion decides both matters.

They claim that the actions of the County Board from which they appeal should be held invalid because of: (1) a procedural defect in the formulation and adoption of the master plan; (2) defects in the proceedings by which the new district was established; and (3) an abuse of discretion by the County Board in determining that the new district was feasible. Where necessary the relevant facts will be set out in the separate treatment of each contention urged by appellants.

After the preparation of its preliminary written plans, maps and charts for reorganization, the Board fixed the following dates and places for hearings thereon--at Columbia on June 19, at Groton on June 20, at Frederick on June 26, at Hecla on June 27 and at Aberdeen on July 10, all in 1959 and at 8:30 p. m. The hearings were held as scheduled and apparently all of them were well attended. However, notice of these hearings was not given by publication as prescribed by Sec. 11, Ch. 8 of Ch. 41, Laws of 1955, now SDC 1960 Supp. 15.2011. It is urged that because of this omission the master plan and all subsequent proceedings dependent thereon are void.

The formation of school districts is entirely within the power of the legislature. Its actions in regard thereto do not come within the due process clause of either the state or federal constitutions. Thies v. Renner, 78 S.D. 617, 106 N.W.2d 253. By the act here involved the legislature delegated that function to the County Board of Education. The actions of the Board in carrying out such duty are likewise not subject to the due process clause. Consequently there is no constitutional requirement that the notice in question be given. See Anderson v. Peterson, 78 N.D. 949, 54 N.W.2d 542.

There remains the question whether the holding of such meetings upon published notice is mandatory or merely directory. That is a matter of legislative intent. The act in question provides:

'When the county board has prepared its preliminary written plans, maps and charts for reorganization of school districts, it shall fix dates and places for hearings thereon and give notice thereof to all the residents of the districts affected and all interested parties. Such notice shall be given by the county superintendent by publication at least once in a newspaper of general circulation in the district, or districts, at least ten days but not more than thirty days prior to the date set for such hearing.

'At the hearing the county board shall explain the proposed reorganization plan, with the advantages and any disadvantages resulting therefrom and shall show the cost of the current and the proposed programs of education as nearly as may be estimated on the basis of current costs. A statement of the proposed method of adjustment for property, assets, debts, and other liabilities shall be made. In such hearing, any resident of the county or of any affected district in an adjacent county may be heard with reference to the proposed changes.

'The county board shall consider any suggestions made in the public hearing, and shall make any revisions or modifications in its written plans as it deems necessary and shall thereupon adopt its master plan.'

While the word 'shall' is generally regarded as mandatory it is often given a directory or permissive meaning in order to give effect to the legislative intent. 50 Am.Jur., Statutes, Sec. 32; 82 C.J.S. Statutes Secs. 376, 380.

The principles involved in determining that intent were discussed by this court in Application of Megan, 69 S.D. 1, 5 N.W.2d 729. It is there stated:

'Accordingly, when a particular provision of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results.'

This case also teaches that greater liberality of construction is indulged in this regard when the omission or failure is on the part of a public official than when the duty disregarded rests on an individual.

The hearings provided for are informational in character and purpose. While the residents of the county at such hearings may make suggestions as to how the county should be reorganized, the Board is at liberty to ignore the ideas submitted. Also the number of such hearings and their location is addressed to the Board's discretion. Obviously these hearings are only a convenience in the exchange of information between the Board and interested members of the public. As such they are merely incidental to the chief purpose of the Board's function which is the formulation of a master plan. Accordingly we hold the provision in question to be directory.

It is our observation that school reorganization proposals incite a keen public interest. News media give them much publicity by which the community is made aware of the plans and proposals of the Board, including news stories about public meetings scheduled by the Board as the record shows occurred in this case. Generally they are a favorite topic of discussion by the adult members of the area involved amongst themselves and with members of the Board. As a consequence the public hearings mentioned in the statute lose much of their apparent importance. We do not believe the legislature intended that the failure to publish the notice in question should render the master plan and the subsequent proceedings void. By SDC 65.0202(1) we are required to liberaly construe the school reorganization law and all proceedings under it with a view to effect its objectives.

After approving the proposed Warner Independent No. 230 School District the County Board on March 15, 1961, voted to reconsider its previous action. This occurred about two weeks after the county superintendent had issued her order and amendment thereto creating the district. While nothing further appears to have been done in reconsideration of the action, appellants contend that this nullified the Board's previous action of approval. We do not agree.

The school law in effect when these actions were taken, SDC 1960 Supp. 15.2015 states:

'If the electors of each district approve the reorganization as hereinafter provided the county superintendent shall issue an order creating such new school district, which shall from the date of issuance of such order be an existing school district, although it shall not operate as such until the members of its school board have been elected and have organized as provided in this chapter. Such order shall be mailed to the State Superintendent, the county auditors concerned, and to the chairman or president of each district affected by the order.'

Obviously, the mailing of the order is required to give official notice of the creation of a new district and the demise of the old ones, to those concerned with them in the fields of supervision, revenue or administration. This seems essential to orderly procedure.

As to the type of reorganization we are here concerned with the same statute provides: 'the plan shall go into effect, excluding any disapproving district or districts, upon the decision of the county board that the plan is still feasible.' By virtue of SDC 1960 Supp. 15.2015 it became an existing school district upon the issuance of the county superintendent's order. A literal interpretation of the provision concerning such order suggests that it does not issue in this kind of reorganization because the 'electors of each district' voting on the plan did not approve the reorganization. However, it can also be read to mean that the order issues if the 'electors of each district' in the area declared by the Board to be a feasible...