Oahe Conservancy Subdistrict, In re

• Decision Date: 29 March 1971
• Docket Number: No. 10876,10876
• Citation: 185 N.W.2d 682,85 S.D. 443
• Parties: In the Matter of the Confirmation and Approval of the Master Contract between the OAHE CONSERVANCY SUBDISTRICT and the United States, the Validity of the Organization of the Oahe Conservancy Subdistrict, and the Validity of the Authority of the Oahe Conservancy Subdistrict to levy an assessment to satisfy the Subdistrict's Contract Obligations.
• Court: South Dakota Supreme Court

Page 682

185 N.W.2d 682

85 S.D. 443

In the Matter of the Confirmation and Approval of the Master

Contract between the OAHE CONSERVANCY SUBDISTRICT and the

United States, the Validity of the Organization of the Oahe

Conservancy Subdistrict, and the Validity of the Authority

of the Oahe Conservancy Subdistrict to levy an assessment to

satisfy the Subdistrict's Contract Obligations.

No. 10876.

Supreme Court of South Dakota.

March 29, 1971.

Gordon Mydland, Atty. Gen., R. James Zieser, William J. Srstka, Jr., Asst. Attys. Gen., Pierre, for Oahe Conservancy Subdistrict.

BIEGELMEIER, Judge.

The South Dakota Conservancy District, created by Ch. 453, § 5, S.L.1959 (now SDCL 46--17--4) ¹ whose boundaries are the boundaries of the State of South Dakota, is declared to be a governmental agency, body politic and corporate with authority to exercise the powers specified therein. Chapter 46--18 provides the method of establishing subdistricts. Oahe Conservancy Subdistrict claims to be duly established and organized thereunder. Chapters 46--17 and 46--18 of SDCL contain provisions outlining the powers and mode of operation of both districts. Proceedings were taken to establish the Oahe Subdistrict ² by an election approving it as well as directors thereof, and to carry out the district's powers including the execution of a Master Contract with the United States of America.

Chapter 223, § 9, S.L.1964 (now SDCL 46--18--39) provided:

'Contract Judicially examined. The Sub-District board of directors, after entering into a contract with the United States, shall commence a special proceeding for a judicial examination of such contract by filing a copy of such contract with the judge of a circuit court of any county within the Sub-District with a petition asking for such judicial examination. Such judge shall give notice of hearing on such contract and petition by publishing a notice in an official newspaper in each county in the Sub-District. Such notice shall make reference to such contract and petition and shall state where the same is filed and may be examined by any interested party. The notice of hearing shall be published once each week for two successive weeks and shall fix the time and place of the hearing which shall be not less than ten nor more than twenty days from the last date of publication. Such proceedings shall comply as nearly as possible with the procedures required in the case of irrigation districts under the laws of South Dakota.'

Pursuant to the foregoing authority, in 1969 the board of directors of the Oahe Conservancy Subdistrict commenced a special proceeding in the Circuit Court of the Sixth Judicial Circuit and prayed that the proceedings had and the actions taken for the organization of the Oahe Conservancy Subdistrict and for the making of a Master Contract between the United States and said Subdistrict and for said Subdistrict's levy of a tax sufficient to meet its obligations under said Master Contract be examined, approved and confirmed by the circuit court. After notice, the circuit court conducted a hearing on November 23, 1969, and examined into the proceedings had, the actions taken for the organization of the Oahe Conservancy Subdistrict, for the making of a Master Contract between the United States and said Subdistrict, and for said Subdistrict's levy of a tax sufficient to meet the obligations under said Master Contract. After the hearing, the circuit court entered findings of fact, conclusions of law and an order approving and validating the proceedings.

It is stated the Master Contract involves the construction and use of public works comprehending the initial stages of the Oahe Unit of about 190,000 acres of the Missouri River Basin Project as authorized by the Act of August 3, 1968 (P.L. 90--453, 82 Stat. 624); that expenditures for such public works were authorized by Congress in the sum of $191,670,000 based on 1964 cost indices and the works will exceed 100 million dollars in cost.

Thereafter by Ch. 253, S.L.1970, effective July 1, 1970 and now SDCL 46--18--39.1 of the 1970 Pocket Supp., the following was added to SDCL 46--18--39:

'46--18--39.1. Certification to Supreme Court of questions involved in large project--Decision by Supreme Court.--Where a contract examined under § 46--18--39 involves the construction and use of public works which will exceed one hundred million dollars in cost, the judge of the circuit court may, upon motion of the Governor, or of any of the parties, and provided such motion shall be made within one year after the entry of judgment, or other order making final determination of the proceeding, certify to the Supreme Court for determination questions bearing on the validity or constitutionality of the actions taken as a preliminary to and in connection with the execution of such contract and the levy of assessments therein required. Upon the determination of questions so certified, the circuit court shall affirm or modify its judgment or other final order and enter findings of fact and conclusions of law in accordance with such determinations.'

Within one year after entry of the order of November 25, 1969 by the circuit court, the Governor of the State of South Dakota and petitioners herein filed their motion that the circuit court certify to the Supreme Court certain questions bearing on the validity or constitutionality of the actions taken as a preliminary to and in connection with the execution of the said Master Contract. Thereupon, one of the judges of the circuit court submitted six certified questions relating therto to this court for answering and determination. Petitioners urge that the circuit judge's conclusions be affirmed.

I.

After the questions were certified to this court accompanied by a brief of the Attorney General supporting affirmative answers to the questions certified and the validating order of the circuit court, this court of its own motion requested the Attorney General to submit a brief on the constitutional propriety of this court to consider and determine the questions in the manner presented.

Initially, by our constitution, the Governor has the authority to require opinions of the judges of the Supreme Court upon important questions of law involved in the exercise of his executive powers and upon solemn occasions. Art. V, § 13 S.D. Constitution. We do not believe this section applies nor did movants so intend. The motion of the Governor and the Subdistrict is not directed to the judges of the court, as such, but is to the Supreme Court pursuant to SDCL 46--18--39.1, supra.

Art. V, § 2, of our constitution declares:

'The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.'

Article V, § 2 of the Wyoming Constitution and Article IV, § 86 of the North Dakota Constitution are substantially of the same wording. The legislatures of both states have provided for the submission of certified questions by lower courts to their Supreme Courts. Sections 1--191 through 1--193, Wyoming Statutes 1957, and Chapter 32--24, North Dakota Century Code. While the Wyoming statutes limit the question that may be reserved and sent to the Supreme Court for its decision as an important and difficult constitutional question and the North Dakota statutes permit the certifying of a question in the sound discretion of the trial judge with other limits, the propriety of such legislation is much the same under our constitution as under theirs.

The Wyoming act was challenged in State v. Crocker, 5 Wyo. 385, 40 P. 681, where the state contended the act attempted to grant original jurisdiction to the Supreme Court which the constitution did not allow. The court answered this by saying it could not adopt the view that this class of cases involved the original jurisdiction of the court. Defendant's counsel insisted the proceedings were within the appellate jurisdiction of the court, as well as authorized by the provision of the constitution giving the Supreme Court superintending control over all inferior courts. The court wrote:

'* * * we are unable to avoid the conclusion that such cases come within the appellate jurisdiction of this court. Beyond that, however, the constitution grants to the supreme court a superintending control over all inferior courts under such rules and regulations as may be prescribed by law. Why may not the legislature, under this clause, well authorize such superintending control to be exercised in important and difficult matters in the manner provided for by the statute of 1888? It seems to us that there is neither impropriety nor invalidity in so doing.'

The North Dakota Supreme Court in City of Grand Forks v. Grand Forks County, 1965, N.D., 139 N.W.2d 242, answered several questions certified to it under Ch. 32--24, N.D. Century Code and declined to answer others for the reason the opinion on those would be advisory only. In doing so it reviewed and cited decisions which defined the requisites of its appellate jurisdiction upon which it based its conclusion that it had authority to consider the certified questions. In In re Garrison Diversion Conservancy District, 1966, N.D., 144 N.W.2d 82, the court exercised this jurisdiction in considering certified questions involving the confirmation of a Master Contract between the United States and a conservancy district of that state similar to the circumstances here. Other court have determined questions involving similar districts under various legal situations.

In Bridal v. Cottonwood Creek Conservancy Dist. No. 11, 1965, Okl., 405 P.2d 17, the court considered an appeal in a proceeding in the district court where that court entered orders creating the Conservancy District and approving a Works Plan; an original quo warranto...