In re Common School Dist. in Highmore Independent School Dist., of Highmore, Hyde County

• Decision Date: 31 December 1928
• Docket Number: 6272.
• Citation: 222 N.W. 690,54 S.D. 146
• Parties: In re COMMON SCHOOL DIST. IN HIGHMORE INDEPENDENT SCHOOL DIST., OF HIGHMORE, HYDE COUNTY. v. SCHENK et al. BROWN et al.
• Court: South Dakota Supreme Court

222 N.W. 690

54 S.D. 146

In re COMMON SCHOOL DIST. IN HIGHMORE INDEPENDENT SCHOOL DIST., OF HIGHMORE, HYDE COUNTY.

BROWN et al. v. SCHENK et al.

No. 6272.

Supreme Court of South Dakota

December 31, 1928

Appeal from Circuit Court, Hyde County; John F. Hughes, Judge.

Application by S. G. Brown and others for the formation and organization of a common school district from territory embraced within the Highmore Independent School District of Highmore, Hyde County, opposed by E. A. Schenk and others. From a judgment granting the petition, and an order denying a new trial defendants appeal. Affirmed.

M. C Cunningham, of Highmore, for appellants.

M Harry O'Brien, of Highmore, for respondents.

BURCH P. J.

On November 25, 1924, a petition was filed in the office of the clerk of the circuit court of Hyde county, in compliance with the provisions of chapter 175, Laws 1923, to organize and form a common school district from territory embraced within Highmore independent school district. The petition was in due form, had the requisite number of qualified signers, with a plat attached, and requested the formation of the new districts in accordance with the plat. Each new proposed district embraced the required territory and contained property of the required assessed valuation. Due notice was given and a hearing was had, as provided by law, and the court rendered judgment allowing the prayer of the petition. Defendants appeal from the judgment and an order denying a new trial.

No question is raised as to the sufficiency of the petition or any of the proceedings prior to the hearing. Appellants contend that chapter 175, Laws 1923, attempts to confer upon the court legislative power; that, the Constitution having conferred such power exclusively upon the Legislature, it cannot be delegated to the court, and any attempt to do so is unconstitutional and void. The constitutionality of this statute (chapter 175, Laws 1923), on the ground that it delegated legislative power to the judiciary, was questioned in Larsen v. Seneca Independent School Dist., 50 S.D. 444, 210 N.W. 661, and the statute was upheld as constitutional. Statutes involving the same principle have been consistently upheld by this court in city limits exclusion cases and drainage ditch cases, and we are not disposed at this late day to re-examine or consider the reasons therefor.

The court permitted the introduction in evidence of the petition on which the proceedings were instituted, without requiring proof of the genuineness of each signature appended thereto. The petition partakes of the nature of a pleading, and is one of the documents upon which the jurisdiction of the court depends. It was not necessary that it be introduced in evidence. If the genuineness of the petition was questioned it should have been attacked by a challenge to the jurisdiction of the court to act thereon. The jurisdiction of the court will be presumed, until properly challenged. Here it is not...