Larsen v. Seneca Ind. Sch. Dist.

• Decision Date: 15 November 1926
• Docket Number: 5683
• Citation: 210 N.W. 661,50 S.D. 444
• Parties: SAM LARSEN et al., Plaintiffs and respondents, v. SENECA INDEPENDENT SCHOOL DISTRICT OF FAULK COUNTY, Defendant and appellant.
• Court: South Dakota Supreme Court

50 S.D. 444

210 N.W. 661

SAM LARSEN et al., Plaintiffs and respondents, v. SENECA INDEPENDENT SCHOOL DISTRICT OF FAULK COUNTY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Faulk County, SD

Hon. J. H. Bottum, Judge

#5683--Affirmed

Roy A. Nord, Faulkton, SD

Gardner & Churchill, Huron, SD

Attorneys for Appellant.

D. I. O'Keeffe, Pierre, SD

F. E. Snider, Faulkton, SD

Attorneys for Respondents.

Opinion filed November 15, 1926

GATE'S, P. J.

Seneca independent school district consisted of congressional township 118 north, of range 72 west, fifth P. M., in Faulk county. The town of Seneca consisted of the southwest quarter of section 3 and the southeast quarter of section 4 of said township. Pursuant to the provisions of chapter 175, Laws 1923, a petition was filed with the clerk of the circuit court of Faulk county for the exclusion of all of said congressional township from said independent school district except sections 2, 3, 4, 5, 9 and 10. The petition was signed by all of the owners of real property in the territory sought to be excluded and by all of the electors except three. Such proceedings were had that the trial court entered judgment granting the petition and forming the excluded territory into a common school district and constituting said sections 2, 3, 4, 5, 9, and 10 as Seneca independent school district. Defendants appeal from the judgment.

Appellants first contend that the court was without jurisdiction because of the insufficiency of the notice (a) in that the township and range were not given of the property sought to be excluded, and (b) in that the notice was not addressed to any one.

The order of the court which was published and posted as the notice was as follows:

"In the matter of the application for the formation and organization of a common school district of a territory embraced within Seneca independent school district in Faulk county, S. D.

"Upon reading and filing the petition of Sam Larsen and others, filed herein on the 24th day of March, 1924, from which it would appear that said petitioners having in all things complied with the provisions of chapter 175 of the Laws of 1923 of the state of South Dakota and are entitled under the provisions of said act to a hearing upon said petition, said petition praying that sections one (1), six (6), seven (7), eight (8), and eleven (11) to thirty-six (36), inclusive, being part of the territory embraced within Seneca independent school district, be detached and excluded therefrom, and organized into and as a common school district. Now, therefore, notice is hereby given that a hearing upon said petition will be had before the court at the circuit court room, in the city of Faulkton, county of Faulk, and state of South Dakota, on the 29th day of April, 1924, at the hour of 10 o'clock in the forenoon of said day, when and where all persons interested in said petition and the subject matter thereof are required to be and appear and adduce testimony in support of, or in opposition to, the granting of the prayer of said petition.

"It is further ordered that a copy of this notice be published in Seneca Journal, a legal newspaper published and of general circulation in Faulk County, S. D., for two successive issues, and that the last publication thereof shall be at least 10 days prior to said day of hearing.

"It is further ordered that a copy of this notice shall be posted in three of the most public places within congressional township 118 north of range 72 west of the fifth principal meridian, in Faulk county, S. D., at least 20 days before said day of hearing.

"Dated this 1st day of April, 1924.

"By the Court:

"[Signed] J. H. Bottum, Judge.

"Attest:

"[Signed] Elmer Irwin, Clerk. [Seal.]"

We are of the opinion that no one could fail to understand from the order and notice that the property sought to be excluded was a portion of Seneca independent school district in Faulk county and that omission of the township and range numbers in connection with the section numbers was not a fatal defect. The omission to address the notice to any person is likewise unimportant. The statute does not so require.

It is next urged that chapter 175, Laws 1923., is unconstitutional because it is a delegation of legislative power to the judiciary. The statute does not delegate legislative power to the circuit court. It vests in the court administrative power, quasi judicial in nature, when the court finds that certain conditions exist. It is difficult for us to see why the vesting of power in the court to act in the first instance should violate the provisions of the Constitution relating to the separation of the powers of government (Constitution, art. 2) any more than does the vesting of...