Morrill v. Wollman, 12580

• Decision Date: 13 November 1978
• Docket Number: No. 12580,12580
• Citation: 271 N.W.2d 356
• Parties: David E. MORRILL, Petitioner, v. Harvey WOLLMAN, Governor of the State of South Dakota, Respondent.
• Court: South Dakota Supreme Court

Page 356

271 N.W.2d 356

David E. MORRILL, Petitioner, v. Harvey WOLLMAN, Governor of the State of South Dakota, Respondent.

No. 12580.

Supreme Court of South Dakota.

Argued Oct. 18, 1978.

Decided Nov. 7, 1978.

Rehearing Denied Nov. 13, 1978.

Bruce A. Hubbard of Morrill, Hansen & Hubbard, Sturgis, for petitioner; James S. Nelson of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, on the brief.

Charles B. Kornmann, Sp. Asst. Atty. Gen., Aberdeen, for respondent.

DUNN, Justice.

This case involves an original proceeding before this court regarding a dispute over a seat on the Board of Regents. On January 30, 1975, petitioner Morrill was appointed to the Board of Regents for a six-year term. At the time of his appointment, Morrill was a resident of Meade County, South Dakota. On August 28, 1978, Morrill moved his residence to Pennington County and subsequently filed an application for a writ of prohibition. The application was filed in anticipation that respondent Wollman, the Governor of South Dakota, was going to declare a vacancy as a result of the change of residence and name a replacement for Morrill. Such a declaration would be declared pursuant to SDCL 13-49-2, which discusses residency in a county in which a state educational institution is not located as a qualification for the Board of Regents.

Wollman filed an answer to the application for a writ of prohibition and counterclaimed for a writ of quo warranto challenging Morrill's right to hold office. In the counterclaim, Wollman alleges that as a result of Morrill's change of residence Morrill forfeited his seat thereby creating a vacancy and the Governor of South Dakota is required by statute to fill vacancies on the Board of Regents. Wollman further alleges that since the change of residence Morrill has been and is now wilfully usurping, intruding into and unlawfully holding and exercising his office without any right, authority, or legal justification therefor.

On October 3, 1978, we declined jurisdiction over the application for a writ of prohibition and exercised jurisdiction over the counterclaim for a writ of quo warranto. A full hearing before the Court was held during regular session on October 18, 1978.

The first issue before us is whether the residency qualification for members of the Board of Regents is a continuing requirement. The statute in question is SDCL 13-49-2 and reads in pertinent part as follows:

"The regents who are regular members shall be persons of probity and wisdom and selected from among the best known citizens, residents of different portions of the state, none of whom shall reside in the county in which any state educational institution is located, all of whom shall not be members of the same political party."

Morrill argues that this provision sets only the initial qualifications for selection to the Board of Regents and, since it is not a continuing requirement, does not govern the creation of a vacancy. Wollman argues that the provision's qualifications constitute a continuing requirement for regents.

The obvious difference of opinion regarding the effect of a change in residency on a vacancy prompts us to ascertain the intent of the legislature. The wording of the provision appears to dictate that regular members be selected from counties in which state educational institutions are not located. Our interpretation of the provision, however, requires the conclusion that such a qualification cannot be limited merely to the time of selection but must be continuing in nature during the term following the particular regent's selection. Any other conclusion would be totally illogical and render the provisions nugatory. Counsel for Morrill admitted during oral argument that the legislative intent was to proscribe members of the Board of Regents from serving while residing in an institutional county. The legislature has repeatedly considered bills to remove the requirement that regents not reside in counties in which state educational institutions are located, and it has consistently expressed a desire to maintain the requirement by refusing to adopt such legislation. If the legislature prescribes qualifications for a particular appointive office, those qualifications must be deemed to be continuing unless the legislature expressly declares otherwise. ¹ Therefore, we hold that the residency requirement provided in SDCL 13-49-2 is a continuing qualification for members of the Board of Regents.

The second issue presented is whether the residency requirement in SDCL 13-49-2 violates the equal protection of the law guarantees prescribed in the Fourteenth Amendment of the United States Constitution and Article VI, § 18 of the South Dakota Constitution. ² We are first met with a challenge to Morrill's standing to question the constitutionality of a statute under which he was appointed, served and paid. In Collins v. Siewert, 1939, 66 S.D. 477, 285 N.W. 518, this court held that "(w)here a party has accepted the benefits of a law, he cannot question its validity." We still deem this to be a sound policy of the law where the petitioner's challenge only involves his personal right to hold a public office. Morrill, however, attacks the constitutionality on the grounds that the law discriminates against a substantial portion of the citizens of the state who live within institutional counties. This raises a question of public importance as opposed to a personal right to hold office; it is reasonably capable of repetition if not clarified; and strict adherence to the Collins decision would probably proscribe any method of appellate review. Thus, we deem it appropriate to consider the constitutional issue raised by Morrill.

Our review of the constitutionality of any statute carries with it a presumption of the validity of the statute, and we will not hold a statute unconstitutional unless its violation of constitutional dictates is "so plain and palpable to admit of no reasonable doubt." McDonald v. School Bd. of Yankton, 1976, S.D., 246 N.W.2d 93, 97, quoting In re Hinesley, 1967, 82 S.D. 552, 150 N.W.2d 834. The two-part test utilized when a statute is called into question because of an alleged denial of equal protection is as follows: (1) whether the statute sets up arbitrary classifications among various persons subject to it and (2) whether there is a rational relationship between the classification and some legitimate legislative purpose. City of Aberdeen v. Meidinger, 1975, S.D., 233 N.W.2d 331.

The statutory classification in question is based upon residency in counties containing state educational institutions, i e., individuals residing in such counties may not serve on the Board of Regents. Viewing this classification in terms of the traditional test of reasonableness as opposed to the strict scrutiny test, ³ the fact that the state has distinguished between citizens in such a manner does not render the classification unreasonable or arbitrary. Morrill argues that the use of county boundaries is totally arbitrary because they are not viable dividing lines in a contemporary social and economic context. The fact that the legislature chose county boundaries instead of some other more precise means of classification does not concern us. Perhaps we in our collective wisdom could conjure up some more expedient and rational means of accomplishing the legislative purpose, but this is not our function. The wisdom, policy, necessity, expediency and methods of carrying out the legislative purpose are for the legislature. We are only concerned with the constitutionality of an act, and, as long as there is a rational relationship between the legislative purpose and the classifications, we will not intervene. McDonald v. School Bd. of Yankton, supra; Behrns v. Burke, 1975, S.D., 229 N.W.2d 86. The legislature has examined this statute on several occasions when all of the shortcomings of using county boundaries as a criterion have been presented. No change has been made, and the court's venture into this area would be trespassing on legislative authority. Accordingly, we are not compelled to conclude that the statute sets up arbitrary classifications among the state's citizens.

The stated objective or legislative purpose for the residency requirement in the statute has been discussed for years and its merits debated extensively. If appointees to the Board of Regents could reside in counties containing state educational institutions, considerable political pressure would be brought to bear on the Governor to have each of those institutional counties represented. The statute further attempts to maintain the objectivity and integrity of the Board of Regents and to insulate the Board to the extent possible from localized pressures by preventing the appointment of institutional representatives and by protecting against overzealous appointees becoming champions of institutions located in the counties from which they are appointed. The statute also minimizes the temptation that would exist for a regent in an institutional county to become involved in the daily administrative functions of the institution. We find that these considerations constitute a legitimate legislative purpose, and we conclude that there is a rational relationship between this legitimate legislative purpose and the classification based upon residency in counties containing state educational institutions.

We can find no violation of constitutional dictates "so plain and palpable to admit of no reasonable doubt." Based upon the foregoing conclusions, we hold that the residency requirement in SDCL 13-49-2 does not violate the equal protection of the law guarantees prescribed in the Fourteenth Amendment of the United States Constitution and Article VI, § 18 of the South Dakota Constitution.

Accordingly, a judgment shall issue declaring a vacancy on the Board of Regents.

MORGAN, J., and HALL and WILDS, Circuit Judges, concur.

ZASTROW, J., di...