Stephens v. Jones

Citation123 N.W. 705,24 S.D. 97
PartiesCHARLES M. STEPHENS et al., Plaintiffs and respondents, v. WILLIAM J. JONES et al., Defendants and appellants.
Decision Date19 November 1909
CourtSupreme Court of South Dakota

Appeal from Circuit Court, Spink County, SD

Hon. Chas. S. Whiting, Judge

Affirmed

Bruell & Morris, R. T. Bull

Attorneys for appellants.

M. Moriarty

Attorney for respondents.

Opinion filed Nov. 19, 1909

McCOY, J.

Section 70, c. 135, p. 230, Sess. Laws 1907, provides:

"Upon the receipt of a petition signed by a majority of the qualified electors of any civil township in said county having districts smaller than civil townships, the county commissioners and the county superintendent of schools shall declare that the school district shall comprise a school township district, and the county superintendent shall appoint the necessary officers as hereinafter provided in section 90, who shall hold until the next election."

The civil township of Tulare, Spink county, is composed of two school districts, each smaller than a civil township, known as districts No. 27 and No. 28 of said county. At the July, 1907, meeting of the board of county commissioners of said county there was presented and filed a petition signed by a majority of the qualified electors of said Tulare civil township, asking that said civil township be declared to be a single school township district, as provided by said section 70, c. 135, p. 230, Laws 1907, and requesting the county superintendent of schools to appoint the necessary officers for said district; and the said board of county commissioners, acting in conjunction with the county superintendent of schools, rejected said petition and refused to declare said civil township to be a single school district. Thereafter the plaintiffs, as taxpayers and parents of children of school age residing in said Tulare civil township, commenced this action in mandamus against the defendants, who are the members of the said board of county commissioners and the said county superintendent, to compel them to declare said civil township to be one school township district, and to compel said superintendent of schools to appoint said necessary officers therefor. The defendants answered in said action, denying that said petition was signed by a majority of the qualified electors of said township, and alleging that a counter-petition had been presented, signed by a number of the electors of said township, alleging that the consolidation of said two school districts would be very inequitable and unjust to the taxpayers of said district No. 28, which has good school buildings and no school debt, while the said district No. 27 had poor and insufficient school buildings and an indebtedness, which, under such consolidation, the taxpayers of district No. 28 would be required to pay a portion thereof. A trial before the court without a jury resulted in findings and judgment in favor of plaintiffs. A motion for new trial being overruled, the defendants have appealed to this court, and by proper objections and exceptions have raised the following questions of law: (1) That section 70, c. 135, p. 230, Sess. Laws 1907, is unconstitutional; (2) that, if constitutional, it is directory only, and not mandatory; (3) that mandamus is not the proper remedy to control such action of the board of county commissioners and county superintendent.

It is first contended that this section 70 is unconstitutional because the title of the act relates to two distinct and specific subjects, being as follows: "An act to establish a uniform system of education for the state of South Dakota, and to repeal certain legislation relating thereto"--as being in conflict with section 21, article 3, State Const., which reads: "No law shall embrace more than one subject, which shall be expressed in its title." But we are of the opinion that there is but one subject embraced or expressed in this title. The only subject expressed in this title is the establishment of a uniform system of education for the state of South Dakota, and that portion of said title, "To repeal certain legislation relating thereto," is only incidental to the main subject, as a part there of, which might be necessary in order to accomplish the establishment of the uniform system intended. This section of our Constitution should receive a liberal construction. Garrigan v. Kennedy, 19 S.D. 11, 101 N.W. 1081, 117 Am.St.Rep. 927.

The appellants next contended that the provisions. of said section 70 are directory only, and not mandatory. In the absence of constitutional limitation, the Legislature in the exercise of its inherent plenary power 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 new districts or by creating new districts by consolidating two or more districts. 25 Am. & Eng. Enc. 34; 28 Cyc. 195, 197; School Dist. v. Zediker, 4 Okla. 599, 47 Pac. 482; Dillon, Mun. Corps. § 54; Ingersoll, Pub. corps. §§ 140-156. There are no such constitutional limitations in this state. This power of the Legislature over the creation of school districts may be delegated to subordinate bodies and officers. 25 Am. & Eng. Ency. 35, and cases cited. Upon the subject of mandatory statutes, Sutherland on Statutory Construction, § 454, says:

"Where a statutory power is granted which otherwise does not exist, whether to a court or to an officer, the mode of proceeding must be strictly pursued. The provisions regulating the procedure are mandatory as to the essence of the thing required to be done."

This section 70 undoubtedly delegates and confers power upon the board of county commissioners and county superintendent which would not otherwise exist but for this statute, and the exercise of the power thus delegated must be strictly construed and mandatory as to the essence of the thing required to be done, which is to declare the civil township to be a single school township district when a petition is received signed by a majority of the qualified electors of the civil township. If it had not been that the legislative mind evidently desired to obtain consent of a majority of the qualified electors of the civil...

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