South Dakota Attorney General

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OFFICIAL OPINION NO. 70-56, School bond election limitations not retroactive

STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 21, 1970

Richard Bogue
State's Attorney, Lincoln County
Canton, South Dakota 57013

OFFICIAL OPINION NO. 70-56

School bond election limitations not retroactive

Dear Mr. Bogue:

You have requested an official opinion on the following factual information and questions:

1. I am writing requesting an official opinion in regards to SDCL 13-19-16 as amended in the 1970 pocket parts. The Harrisburg High School held an election which was passed on March 3, 1970. The bonds have not yet been sold due to the fact there was litigation involved in this election which has gone to the Circuit Court and the election has been upheld but the appeal time has not yet run.

Following the election of August 24, 1970, the County Board of Education transferred out of the Harrisburg District the SE 1/2 of 34-100-49 and section 35-100-49, all in Lincoln County.

Question No.1. Is this property subject to the bond levy approved by the voters on March 3, 1970 if said bonds are sold subsequent to this time?

2. On March 23, 1970, the property described as the S 1/2 of section 24-99-50 was transferred into the district. This was after the vote but before the amendment to 13-19-16 became effective.

Question No.2. Is this property subject to the bond indebtedness if the bonds are subsequenty sold to this time?

3. Since the election of March 3, 1970, litigation has prevented sale of the bonds and if the decision of the Circuit Court is now appealed there will be additional delay pending the decision of the Supreme Court which could possibly take this matter beyond March 3, 1971.

Question No.3. When does the 365 day period begin for this bond election, or does it apply to this bond election?

Question No.4. If the 365 day period commences on March 3, 1970 and ends on March 3, 1971, what effect does the pending litigation preventing the sale of bonds have upon that period of time?

SDCL 13-19-16 prior to July 1, 1970 reads as follows:

SDCL 13-19-16, subsequent to July 1, 1970, reads as follows:

After the close of the polls the votes shall be counted, certified, and canvassed within ten days; whereupon the result of the election shall be entered in the minutes of the board. If three-fifths of all ballots cast upon such question shall be in favor of issuing ponds, the school board, through its proper officers, shall forthwith proceed to issue bonds within three hundred sixty-five days of the date of such authorization by such election in accordance with such vote and the obligation for the bonded indebtedness shall date from the date of the election and apply only to the area which voted on its issuance; but if less than three-fifths of the ballots cast shall be in favor of issuing such bonds, then no further action shall be had and the question shall not again be submitted to a vote for one year thereafter, except for a different amount involving an amount more than five per cent more or more than five per cent less than the amount of dollars requested in the previous bond election.

It is a uniformally recognized rule of statutory construction that statutes shall be deemed prospective only in their application and shall not be construed as retroactive unless the legislative intent to make them so shall clearly appear. There is nothing in the language of the amendment to SDCL 13-19-16 which would indicate an intent on the part of the Legislature to give such amendment a retroactive effect. See 194344 AGR 320 and other similar opinions.

It is generally recognized that an election for a bond issue can at the most create a contingent liability and that an actual liability is created only when the bonds are issued and sold.

It appears that the Legislature by its amendment to SDCL 13-19-16 by Chapter 10 1, Session Laws of 1970 is attempting to create an obligation from the date of the election rather than from the date the bonds are issued and sold.

Since your Question No.1 deals with a minor boundary change that occurred subsequent to July 1, 1970, the effective date of the amendment to SDCL 13-19-16, it is my opinion that the answer to your Question No.1 is YES.

Your Question NO.2 deals with a minor boundary change that occurred prior to July 1 , 1970, the effective date of the amendment to SDCL 13-19-16, it is my opinion that the answer to your Question No.2 is NO, unless the county board of education at their discretion wished to make an adjustment of the assets and liabilities and take the bond situation into account.

In answer to your Question No.3, it is my opinion that the 365 day limitation is not applicable to the bond election that occurred prior to July 1, 1970.

Due to my answer to your Question No.3, it is not necessary to answer your Question No.4.

Respectfully submitted,

Gordon Mydland
Attorney General