Campbell v. Fritzsche

• Decision Date: 07 November 1960
• Docket Number: No. 9830,D,No. 2,2,9830
• Citation: 105 N.W.2d 675,78 S.D. 593
• Parties: Margaret CAMPBELL, Marion Campbell, Metsel Zerfoss, Faye Zerfoss, Mores Scheibe, Dollie Schelbe, Verlin Horn, Dorothy Horn, Fred Kohlmeyer and Ardeen Kohlmeyer, Plaintiffs and Appellants, v. Ed FRITZSCHE, Roger Sargent and Donald Clarke, School Board of Whiteside Consolidated School Districtefendants and Respondents.
• Court: South Dakota Supreme Court

Page 675

105 N.W.2d 675

78 S.D. 593

Margaret CAMPBELL, Marion Campbell, Metsel Zerfoss, Faye

Zerfoss, Mores Scheibe, Dollie Schelbe, Verlin

Horn, Dorothy Horn, Fred Kohlmeyer and Ardeen Kohlmeyer, Plaintiffs and Appellants, v. Ed FRITZSCHE, Roger Sargent and Donald Clarke, School Board

of Whiteside Consolidated School District No. 2,

Defendants and Respondents.

No. 9830.

Supreme Court of South Dakota.

Nov. 7, 1960.

Gallagher & Battey, Redfield, for plaintiffs and appellants.

Temmey & Luby, Huron, for defendants and respondents.

RENTTO, Judge.

The school board of Whiteside School District No. 2 in Beadle County decided to close the grade school it had maintained and send its students to the Wessington Independent School District at Wessington South Dakota. The appellants and other residents of the district petitioned the board to assign their children to the Wolsey Independent School District at Wolsey, South Dakota. This was denied. On appeal to the circuit court judgment was entered assigning all the elementary students of the district to Wessington except those of two families. These were assigned to Wolsey. This appeal is from that part of the judgment assigning appellants' children to the Wessington school.

On March 14, 1959 a petition was presented to the Whiteside school board requesting an election on the question of closing their school and sending the students to Wessington during the 1959-1960 term. The election was had and the proposition carried. Thereafter, on May 17, 1959 the school board took action assigning all the elementary students of its district to Wessington for the 1959-1960 school term. It was at this juncture that the board was requested to assign some of the students to Wolsey.

While appellants urge and argue several questions concerning the election and the action taken by the board, we are faced at the outset with respondents' motion to dismiss the appeal on the ground that it presents a question which is moot. This is predicated on the fact that the decision of the board and the judgment of the court which are involved in this appeal, assigned the students for only the school year 1959-1960, which term ended several months before the matter was presented to this court. Although the power and duty of a court to dismiss a matter for lack of controversy are undoubted it is a power that should be exercised only when the mootness appears clearly and convincingly.

On the question of mootness the decisions of this court have recognized some basic principles. The existence of an actual controversy is an essential requisite to appellate jurisdiction. In the absence of a controversy an adjudication is an idle and ineffectual act, or as was said in Markham v. Gorder, 8 Cir., 150 F.2d 894, 895, in that situation it would 'seem to be legally academic and judicially unnecessary.' Generally stated there is no controversy if on account of changed conditions the relief originally sought...