State ex rel. Buck v. Whorton

• Decision Date: 03 June 1925
• Docket Number: 5943
• Citation: 204 N.W. 169,48 S.D. 332
• Parties: STATE OF SOUTH DAKOTA ex rel. A. E. BUCK, et al, Plaintiffs, v. W. F. WHORTON, et al, Board of Education of Independent School District of Huron, Defendants.
• Court: South Dakota Supreme Court

48 S.D. 332

204 N.W. 169

STATE OF SOUTH DAKOTA ex rel. A. E. BUCK, et al, Plaintiffs,

v.

W. F. WHORTON, et al, Board of Education of Independent School District of Huron, Defendants. South Dakota Supreme Court Original Proceedings in Mandamus #5943--Writ quashed Wilmarth, McCoy & McCoy, Huron, SD Attorneys for Plaintiff. Gardner & Churchill, Huron, SD Attorneys for Defendants. Opinion filed June 3, 1925

SHERWOOD, J.

This is an original proceeding in mandamus to compel the board of education to issue the bonds of the independent school district of the city of Huron, in the sum of $65,000. It involves the construction and effect of chapter 166 of the Session Laws of 1923. The real question presented is: Does this chapter amend the laws relating to issuing bonds in independent school districts so that it now requires the affirmative vote of three fifths of all persons voting at said election to authorize the issue of bonds?

It is the contention of petitioner:

(1) That because the title to chapter 166, supra, says it is an act to amend sections 7593 and 7606, R. C. 1919, therefore the act is restricted in its application to these two sections only; and by specifying said two sections in the title of the act the Legislature plainly expressed its intent not to amend any other section or sections of our Code.

(2) That there are two sections in the law relating to issuing bonds in independent school districts, namely, sections 7604 and 7606. That section 7604 is still in full force and unamended; and is complete in itself without section 7606. That the real effect of chapter 166, supra, was to repeal section 7606 and leave section 7604 as it was originally, and in full force and effect. That rightly interpreted and construed, chapter 166, supra, applies only to common school districts, and therefore if a majority of the votes cast at a bond election in an independent school district was for bonds, it was the duty of the board of education of such independent district to issue the bonds.

Section 7604, which petitioner claims is in force and unamended, reads as follows:

"Notice of election for the purpose of taking the sense of the school corporation upon the question of issuing bonds shall be given by the board of education, signed by the president and clerk of such board, by publishing the same four successive weeks next prior to the date of holding such election, in a newspaper printed and published in such school district, and if no newspaper is printed and published therein, notice shall be given by posting copies of the same in three of the most public places within such school district at least thirty days prior to such election; such notice shall state the time and place of such election, the amount of bonds asked for and the purpose or purposes for which they are to be issued, the maximum rate of interest they are to draw and when they are to become due, and such election shall be conducted the same as other school elections in such school district. If a majority of the votes cast on any one of the propositions submitted at such election shall be in favor of such proposition, the bonds authorized thereby shall be issued, and any person qualified to vote at a school election in such district shall be qualified to vote on the question of issuing bonds."

Both sides agree that a bond election was held in the independent school district in the city of Huron on April 21, 1923, at which election 1,514 votes were cast in favor of issuing bonds and 1,230 votes were cast against issuing bonds, and that it required 1,647 votes to make three-fifths of the votes cast.

It will be seen that a majority of the votes cast were for issuing bonds, but three-fifths of those voting were not in favor of issuing bonds. The school board declared the election to be against the bonds; thereupon, this proceeding was brought.

It will be observed that section 7593, R. C. 1919, relates exclusively to Common school districts, and provides the number of votes necessary to issue bonds in common school districts. It will be further observed that section 7606 relates to the canvass of votes in independent school districts and provided, before the adoption of chapter 166, supra, for a majority vote, and now provides for a three-fifths vote on which to perfect the bond issue record.

Referring to petitioner's contention No. 1, we think the true doctrine of express mention and implied exclusion was stated by the Supreme Court of Wisconsin in which they said:

"It is a mere rule of statutory construction, to be applied or not in determining the legislative intent according to circumstances, not being an arbitrary rule, and having no application except to aid in solving uncertainties, and it should...