Carr v. Wakonda Independent Consolidated School District Number 1

186 N.W. 880, 45 S.D. 261, 1922 S.D. LEXIS 29

• Court: South Dakota Supreme Court
• Decided: March 1, 1922
• Docket: File No. 5048
• Status: Published

Opinion

GATES, P. J.

This is an injunction action to prevent the defendant, Wakonda independent consolidated school district, from issuing bonds. Chapter 202, Laws 1921, provides for the abandonment of consolidated school districts. If, at the election called pursuant thereto, a majority of all of the electors of the district vote in favor of abandonment, then the consolidated district shall be abandoned. The complaint alleges that, at an election held on the question of abandonment pursuant to said chapter, there were 495 votes cast, of which 262 were for abandonment and 233 against abandonment, and that a majority of all the electors of the district did thereby vote in favor of the abandonment, and that, notwithstanding such vote, the officers of the district have given notice for bids for an issue of bonds, and intend and threaten to sell such bond’s, etc.

The answer of defendants alleges that, at the time of said election, there were 580 legal electors in said district. Upon the complaint, answer, and an affidavit of plaintiff, the plaintiff moved for an injunction pendente lite. This was denied. Therefrom plaintiff appeals.

[1] Appellant contends that, by reason of the clause, “where such person offers his vote,” found in Const. art. 7, § 1, an elector is a person who offers his vote, and therefore there could not be 580 electors in a district which cast only 495 votes, and that it must be conclusively presumed that there were only 495 electors in the district.

We had always understood that a qualified elector was a person who was entitled to vote, regardless of the fact of whether or not he (or she) voted. To be sure, under a technical interpretation, article 7, § 1, of the Constitution only purports to define the qualifications of those electors who offer their votes at an election, but section 7213, Rev. Code 1919, declares that those persons who possess the qualifications prescribed in the above section of the Constitution shall be entitled to vote at any election. Said section 7213 therefore defines who are electors.

[2] The situation which confronted the trial court upon the application for temporary injunction was this: On the part of defendant it was alleged that there were 580 electors in the district; on the part of the plaintiff it was alleged that there were only 495 electors, because only 495 persons voted at the election. Upon this showing we cannot say that the trial court abused its discretion in refusing the injunction.

The order appealed from is affirmed.