South Dakota High School Interscholastic Activities Ass'n v. St. Mary's Inter-Parochial High School of Salem

• Decision Date: 08 April 1966
• Docket Number: INTER-PAROCHIAL,No. 10272,10272
• Parties: The SOUTH DAKOTA HIGH SCHOOL INTERSCHOLASTIC ACTIVITIES ASSOCIATION, by R. M. Walseth, Executive Secretary, et al., Plaintiffs and Appellants, v. ST. MARY'SHIGH SCHOOL OF SALEM, South Dakota, et al., Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 477

141 N.W.2d 477

82 S.D. 84

The SOUTH DAKOTA HIGH SCHOOL INTERSCHOLASTIC ACTIVITIES

ASSOCIATION, by R. M. Walseth, Executive Secretary, et al., Plaintiffs and Appellants, v. ST. MARY'S INTER-PAROCHIAL HIGH SCHOOL OF SALEM, South

Dakota, et al., Defendants and Respondents.

No. 10272.

Supreme Court of South Dakota.

April 8, 1966.

Samuel W. Masten, of Masten & Myrabo, Canton, G. F. Johnson, Gregory, for plaintiffs and appellants.

John S. Murphy, Jeremiah D. Murphy and Marvin D. Keller, of Boyce, Murphy & McDowell, Louis H. Smith, Claude Hamilton, Sioux Falls, Joseph Barnett, of Agor, Siegel, Barnett & Schutz, Aberdeen, C.J. Nagel, Salem, for defendants and respondents.

BANDY, Circuit Judge.

The South Dakota High School Interscholastic Activities Association, an unincorporated organization, together with the individuals acting as its Board of Control and its Executive Secretary, sought a judgment declaring Chapter 51 of the Laws of 1964 to be unconstitutional. By counterclaim St. Mary's Inter-Parochial High School of Salem, South Dakota, and others, asked enforcement of Chapter 51 by mandamus. The trial court found the Act to be constitutional and granted a writ requiring the admission of St. Mary's and all other high schools similarly situated to the Association. Execution of the writ was stayed pending determination of the appeal to this court.

While the record on appeal is voluminous, it consists principally of exhibits received on stipulation. Under the view we take, no material factual issue was presented to the circuit court. The appellants contend that the legislature exceeded its powers in the enactment of Chapter 51 and that the trial court erred in holding to the contrary.

The trial court found that Chapter 51 is a proper exercise of the police power and major portions of the briefs are addressed to this point. We do not believe that the police power is involved.

The record indicates that this case was presented, tried and decided upon the theory that the Association is a private organization similar to history clubs, fraternal organizations, labor unions, medical associations and the like. Some reliance appears to have been placed upon the Association having been conceived by school superintendents and principals. The trial court adopted as its Finding I

'* * * the 'Association', is an unincorporated association formed * * * by public school administrators of the State of South Dakota.'

The critical, and we believe decisive, question is as to the nature of the Association. Examination of the 1964 By-Laws establishes, that:

By Article II, it is provided:

'The purpose of this Association is to direct and coordinate all interscholastic activities carried on by the member high schools of South Dakota. * * *'

By Section 1 of Article III, it is provided:

'Membership Restricted. The membership of this Association shall consist of public high schools in South Dakota supported primarily by federal, state, or local taxes and listed in the high school directory as accredited high schools, and other high schools whose application is approved by a two-thirds majority vote of member schools voting.'

By Section 2 of Article III, it is provided:

'Method of Joining. Any eligible high school can become a member of this Association by (1) submitting a statement signed by a proper school official to show that the local board of education has taken action to approve the application for membership and also to approve these By-Laws * * *'

By Section 1 of Article V, it is provided:

'Board of Control. There shall be a Board of Control of six (6) members, five of these members shall be Superintendents or principals of members schools and one (1) to be a School Board Member from a School Board representing a member school.'

From the foregoing excerpts it is clear that the membership of the Association is composed of and confined to High Schools and that any contractual relationship exists solely by virtue of action taken by the various school boards representing the member schools. It necessarily follows that the individuals who hold office as the Board of Control and the Executive Secretary have no justiciable interest in the Association.

Whether the local school boards had power to enter into this Association does not require decision here. Chapter 51 recognizes the existence of the Association and, at least by implication, approves some degree of action by local school boards in relation thereto.

Extensive analysis of the holding of this court in State v. Nuss, 79 S.D. 522, 114 N.W.2d 633, have been presented. We do not think that holding is applicable here. Nuss dealt with a private school. Control over private schools is based upon exercise of the police power, but that is not true as to public schools.

The law on the subject is thus stated in 47 Am.Jur., Schools, § 221, page 459:

'Legislative power over public schools is complete. Such is not the case, however, in respect of private schools, and the power to prohibit or regulate them is subject to the same limitations as exist in the case of private property or rights generally.'

In 78 C.J.S. Schools and School Districts § 15, page 630, it is written:

'The constitutional requirement that the legislature should provide for the maintenance and support of the public school system places the educational system in the hands of the legislature, free from any interference from the judiciary save as required by constitutional limitations.'

By the Enabling Act, under which statehood was obtained, the establishment and maintenance of a system of public schools is required. This duty was specifically acknowledged by Section 1 of Article VIII of...