STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

 April 24, 1969

Dr. Gordon Diedtrich
Superintendent, Public Instruction
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-41

School boards for newly created school districts under SDC 1960 Supp. 15.2014, as amended by Chapter 41 of the Session Laws of 1968

Dear Dr. Dietrich:

You have requested my opinion in answer to certain questions raised in the problem of school district reorganization. These questions are as follows:

1. In the formation of a newly created school district in pursuance to SDC 1960 Supp. 15.2014, as last amended by Section 1 of Chapter 41 of the Session Laws of 1968, if the electors approve of such proposed new school district, must the county board of education follow the proposals as to the number of members to be on the school board of such newly created district?

2. If the county board of education, in pursuance to the alternative mandate of SDC 1960 Supp. 15.2021, as last amended by Section 2 of Chapter 41 of the Session Laws of 1968, adopts the procedure that the county board of education creates the school board of the newly created district, who are the members of such school board?

Many of our problems in the field of education arise from a failure to comprehend that in this field and in determining the number, boundaries, extent and operations of the schools that these problems rest exclusively with the Legislature. Section 1 of Article VIII of our Constitution demands this, for therein the Legislature is charged with the duty.

"to establish and maintain a general and uniform system of public schools."

This exclusive function rests solely with the Legislature. It rests neither with the people of the state, nor with the school districts heretofore created. No school district, nor any citizen of the state, has any inherent right nor any vested right to remain in any particular school district. The Legislature, under its exclusive dominion in school matters could enact a law stating that the boundaries of the several school districts in South Dakota shall be as follows: (setting forth such boundaries to include all territory within the state), and no citizen school district, or school district officer could lawfully attack such legislative act.

Our Legislature has not seen fit to act in the arbitrary manner above suggested, but rather the Legislature has authorized the creation of local school districts and has endowed the people in such local districts with certain authority. It is this legislative grant of power which is the basis of your questions.

Before considering such questions specifically, one must also appreciate and comprehend that because the Legislature has the exclusive authority in this area, that when the Legislature expresses an intent to authorize persons other than itself to act in its behest, that the legislative direction must be faithfully complied with by its agent. One should also appreciate that it is well settled, that the last word of the Legislature upon any particular subject, governs, until the Legislature itself changes such directions. With this basic philosophy appreciated, the answers to your questions are simple for the reason that the Legislature itself in unambiguous language has given you the answers thereto.

QUESTION 1:

Question 1 must be premised upon the proposition that the new school district which has been petitioned for has been approved by the electorate. If such approval is not given, there is no new district, and the county board has no question before it.

Question 1 must also be considered with Question 2, because there may be said to be a conflict between Section 1 and Section 2 of Chapter 41 of the Session Laws of 1968. However, in following the settled principles of statutory interpretation that all parts of a particular legislative enactment must be given effect, in my opinion any fanciful conflict in such Chapter 41 may be laid to rest.

Question 1 must be answered that if the electorates favor the new proposed school district and the county board of education initially submits the election of the school board members to the electorate, then there can be no question that there be elections for the number of school board members as proposed in such petition which is the basis of such school district organization.

This must follow because the Legislature directly provided that its agent-the electors submitting such petition-may in such petition state the number of board members to be on the school board for the newly proposed school district. Upon approval of such district by the agents of the Legislature-the electorate in the particular district-the legislative agents have approved that number of school board members.

Therefore, Question NO.1 must be answered YES, if this is an initial election of the school board members for the new school district in pursuance to SDC 1960 Supp. 15.2021, as last amended by Section 2 of Chapter 41 of the Session Laws of 1968.

However, an examination of the last two paragraphs of said SDC 15.2021, as amended in 1968, reveals that the Legislature in delegating to its agent the authority to form a school board of the new school district, has added an alternative, and has stated that the county board of education, if it so desires, and as the agent of the Legislature, can initially dispense with such initial school board election and having dispensed with such election the Legislature itself, in the exercise of its exclusive authority, has determined who will be the members of such school board for such new school district.

Under this alternative, the number of school board members might initially vary from the number of board members directed by the electorate, but this too being within the exclusive authority of the Legislature does not render such board illegal. After the initial appointment-which actually came from the Legislature and not the county board of education-when election of board members are held by the electorate, then the number of school board members for such new school district will be that number as directed in the petition which caused the formation of such new school district.

QUESTION 2

The Legislature, by the enactment of Section 2 of Chapter 41 of the Session Laws of 1968, which amended SDC 1960 Supp. 15.2021, appointed as its agent the county board of education, in its discretion, to determine not to hold an initial election in such newly formed school district to choose the school board for such district. Upon such action by the county board of education, taken on behalf of and as the agent of the Legislature, the Legislature then appointed the initial school board for such district. The statute itself names such members and fixes the tenure of office.

Such school board consists of all duly elected school board members of the former independent school districts and the duly elected clerks of the school boards of each of the former common school districts whose terms of office have not expired. The tenure of office of such school board is for one year or until such time as the new school board for such new district is elected as provided by SDC 1960 Supp. 15.23.

This school board, as appointed by the Legislature, through the exercise of discretion on the part of its agent, can consist of any number of persons. Thereafter, when school board members for such new district are elected by the electors of such school district, the number of school board members is that approved by the voters in creating such district.

This interpretation gives full effect to each and every legislative command as contained in Chapter 41 of the Session Laws of 1968. I am hopeful this opinion is of help to you and your staff in considering the mandates of the Legislature.

Respectfully submitted,

Gordon Mydland
Attorney General