Custer County Bd. of Educ. v. State Commission on Elementary and Secondary Educ.

• Decision Date: 19 January 1972
• Docket Number: R,No. 1,No. 10890,1,10890
• Parties: CUSTER COUNTY BOARD OF EDUCATION and Custer Independent School Dist.espondents, v. The STATE COMMISSION ON ELEMENTARY AND SECONDARY EDUCATION, Appellant, and Fall River County Board of Education et al., Defendants below, not appealing here.
• Court: South Dakota Supreme Court

Page 586

193 N.W.2d 586

86 S.D. 215

CUSTER COUNTY BOARD OF EDUCATION and Custer Independent

School Dist. No. 1, Respondents, v. The STATE COMMISSION ON ELEMENTARY AND SECONDARY EDUCATION,

Appellant,

and

Fall River County Board of Education et al., Defendants

below, not appealing here.

No. 10890.

Supreme Court of South Dakota.

Argued Nov. 9, 1971.

Decided Jan. 19, 1972.

Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for respondents.

Gordon Mydland, Atty. Gen., Horace R. Jackson Sp. Asst. Atty. Gen., Pierre, for appellant.

BIEGELMEIER, Judge.

After an election and other appropriate proceedings in 1969, Harrison Flats Common School District, herein sometimes referred to as Harrison Flats, became a part of Custer Independent School District. Thereafter appellant, The State Commission on Elementary and Secondary Education (Commission), detached that part of Custer Independent School District (Custer Independent) which had been Harrison Flats and attached it to the Hot Springs Independent School District, and also attached a portion of Fairburn School District to the Hot Springs District. From such actions the Custer County Board of Education and Custer Independent served and filed a petition for review under the Administrative Procedure Act, SDCL 1--26, and a notice of appeal under the provisions for appeal set out in SDCL 13--46--1 and 13--6--89. Upon hearing the controversy, the Circuit Court of Custer County held the actions attaching the tracts to Hot Springs Independent School District were void. The Commission appeals.

SDCL 1--26--1 by subsection (5) defines a "Party" as a 'person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party', and by subsection (6) a "Person" as an 'individual, partnership, corporation, association governmental subdivision, or public or private organization of any character other than an agency'. Subsection (2) defines a "Contested case" as a 'proceeding * * * in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing. So far as pertinent, SDCL 1--26--30 then provides a 'person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.' Proceedings for review are instituted by filing a petition in the circuit court--one of the remedies here followed.

The Commission, in its brief filed June 3, 1971, first asserts the circuit court was without jurisdiction contending no appeal or right of review exists. A similar question was presented in Elk Point Ind. Sch. Dist. No. 3 of Union County v. State Com'n on E. & Secondary Ed., decided June 9, 1971, S.D., 187 N.W.2d 666, where the court held an elector of a school district had a right of judicial review under the Administrative Procedures Act. In so doing, the court wrote:

'The commission urges that the trial court was without jurisdiction of this proceeding because there is no right of appeal from the commission's action. * * * (Petitioners) claim a right to judicial review under our Administrative Procedures Act. (SDCL 1--26)

'Ch. 38, Laws of 1967, creating the State Commission on Elementary and Secondary Education, authorized it to adopt rules and regulations for implementing the provisions of the act. Consequently, we think it is an agency within the meaning thereof. SDCL 1--26--1. Clearly, the electors and taxpayers seeking this review are authorized to do so by SDCL 1--26--30. In view of this the right of the Elk Point district to do so, which is challenged by the commission, becomes moot.

'We think this position gains support from the enactment of Ch. 94, Laws of 1970. In Section 1(5) thereof the commission is given the right to appeal to the Supreme Court from an adverse decision by a circuit court from an appeal to such court taken under the Administrative Procedures Act, by a County board of education, school board or a resident elector. Accordingly, we hold that the trial court had jurisdiction of this proceeding.' (Emphasis supplied)

Upon the logic of the comment on Ch. 94, S.L.1970, SDCL 13--6--89.1, which recognizes the right of the parties emphasized to a review by the circuit court, we hold respondents have a right of review under SDCL 1--26.

Without further quoting from the Elk Point opinion, the court held the Commission had 'no authority' under Ch. 38, S.L.1967 ¹ (as amended now SDCL 13--6--8.3) to take any territory of an independent district into a newly created independent district. We believe the court's construction of Ch. 38, S.L.1967, as it was then worded and as it existed at the time the Commission acted here, did not give authority to detach land from an independent district and add it to another. No reason for reconsideration of the opinion is advanced and, as the legislature by Ch. 94, S.L.1970, amended Ch. 38 to specifically permit changes in the boundaries of independent districts, no public purpose would be served by doing so. The Commission then having no authority to detach that part of Custer Independent, formerly known as Harrison Flats, to the Hot Springs District, the judgment of the trial court as to it was correct and must be affirmed.

There is some discrepancy in the record as to whether Fairburn was a common school district or part of Custer Independent. One finding refers to it as a common school district, while a conclusion of law states 'the action of the Commission in detaching a portion of old Fairburn Common School District No. 33, which was at the time of the action taken by the Commission a part of Custer Independent School District No. 1' was a nullity. We will assume Fairburn was a common school district not within the holding of the Elk Point Ind. Sch. Dist. opinion.

The circuit court found that before taking the actions complained of, the Commission did not give any notice to the residents of the land area involved of its intended actions nor did it provide for any hearing thereon for those residents, and concluded the actions attaching those parts of Custer Independent (formerly Harrison Flats) and a portion of old Fairburn Common School District to the Hot Springs Independent District were void for failure to 'provide for a hearing for the residents of any land area so involved' as required in Ch. 38, S.L.1967, supra.

The Commission attacks these findings and conclusions of failure to give notice as erroneous, claiming the matter of notice and hearing in school matters is not jurisdictional, that due process is not involved and, alternatively, notice was given and a hearing held.

We may agree the wide range of constitutional due process does not encompass legislation as to the...