Zubke v. Melrose Township

2007 SD 43, 731 N.W.2d 918, 2007 S.D. LEXIS 48, 2007 WL 1224882
CourtSouth Dakota Supreme Court
DecidedApril 25, 2007
Docket24279
StatusPublished
Cited by2 cases

This text of 2007 SD 43 (Zubke v. Melrose Township) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zubke v. Melrose Township, 2007 SD 43, 731 N.W.2d 918, 2007 S.D. LEXIS 48, 2007 WL 1224882 (S.D. 2007).

Opinion

ZINTER, Justice.

[¶ 1.] Melrose Township lowered its tax levy at its annual meeting. After being informed of the ramifications of the reduction, a special meeting was held to reconsider. Upon reconsideration, the levy was raised to the original amount. Jerald Zub-ke appealed the township’s reconsideration. The circuit court dismissed, and Zubke appeals. We affirm.

Facts and Procedural History

[¶ 2.] Melrose Township held its annual meeting on March 7, 2006. Those present at that meeting voted to reduce the tax levy from $20,000 to $10,000. The voters were apparently unaware of SDCL 10 — 13— 35, which limited future annual increases in tax levies after a levy had been reduced. 1 After the meeting, the Township Clerk spoke with the Grant County Auditor, who informed the clerk of the ramifications of SDCL 10-13-35. The clerk then informed the township supervisors. Once apprised of this statute and the time it would take to return the levy to its former level, a petition was circulated to reconsider the vote by which the levy was reduced.

[¶ 3.] On April 10, 2006, a special meeting was held to reconsider. Only those voters who participated in the initial meeting were allowed to vote on the motion to reconsider. Following a successful vote to reconsider, the levy was returned to $20,000 by the township voters who were present at the special meeting. 2

[¶ 4.] On April 11, 2006, the township certified the $20,000 levy to the Grant County Auditor, and the levy was accepted. Zubke appealed the April 10th reconsideration and the April 11th certification. Zubke now appeals the circuit court’s dismissal, which raises the issue:

Whether Melrose Township lawfully reconsidered the levy made on March 7, *920 2006, at a special meeting held on April 10, 2006.

Decision

[¶ 5.] Zubke argues that the reconsideration and certification were unlawful because the relevant statutes: 1) prohibited a motion to reconsider from being made more than one month after passage of the original motion; 2) prohibited raising a tax levy at a meeting other than the annual meeting; and 3) prohibited certification of a tax levy more than ten days after the last Tuesday in March. These arguments raise questions of statutory interpretation, which are reviewed de novo. Anderson v. City of Tea, 2006 SD 112, ¶ 5, 725 N.W.2d 595, 597.

Time for Reconsideration

[¶ 6.] Zubke first argues that SDCL 8-3-10 prevented the township from reconsidering the tax levy at any time other than the original meeting. SDCL 8-3-10 governs the time for reconsideration of votes taken at township meetings:

At the opening of every township meeting the moderator shall state the business to be transacted, and the order in which it shall be entertained, and no proposition to vote a tax shall be acted on out of the order of business as stated by the moderator, and no proposition to reconsider any vote shall be entertained unless such proposition to reconsider is made within one hour from the time such vote was passed, or the motion for such reconsideration is sustained by a number of voters equal to a majority of all the names entered upon the poll list at such election up to the time such motion is made; and all questions upon motions made shall be determined by a majority of the voters voting; and the moderator shall ascertain and declare the result of the votes on each question.

(Emphasis added.) Focusing on the one-hour limitation in this statute, Zubke contends that the motion to reconsider at the subsequent special meeting was unlawful because it occurred more than one hour after the original vote. 3

[¶ 7.] However, Zubke’s focus on the one-hour limiting language in SDCL 8-3-10 overlooks the fact that the statute is written in the alternative. The statute plainly provides that motions may be reconsidered within an hour “or [if] the motion ... is sustained by a number of voters equal to a majority of all the names entered upon the poll list....” Id. (emphasis added). Because the Township followed this alternative method of reconsideration, we conclude that the reconsideration conducted at the subsequent meeting was timely. 4

Reconsideration of Tax Levies-At Meetings Other Than the Annual Meeting

[¶ 8.] Zubke next argues that SDCL 8-3-2(8) and SDCL 8-3-5 did not allow the tax levy decision to be made at any meeting other than the annual meeting. SDCL 8 — 3—2(8) authorizes a township to set the tax levy at the annual meeting:

The voters of each organized civil township have power at their annual meeting ...
*921 (8) To vote to raise by taxation such sums as they may deem expedient for authorized township purposes, but the aggregate of such sums shall not exceed the limit of tax levy prescribed by this code.

Because this statute only refers to the annual meeting, Zubke contends that the reconsideration of a tax levy at a subsequent special meeting was unlawful. We disagree.

[¶ 9.] In this case, the voters of Mel-rose Township followed the statute by “rais[ing] by taxation such sums as they [deemed] expedient” at the March 7, 2006 annual meeting. SDCL 8 — 3—2(8). Furthermore, SDCL 8-3-10 does not limit motions to reconsider to matters other than taxation. Therefore, SDCL 8-3-10 authorized the township voters to reconsider their initial tax levy decision at the April 10, 2006 special meeting. Zubke’s contention would have merit only if no tax levy had been set at the annual meeting. However, that did not occur in this case. Here, the tax levy was initially set at the annual meeting, and therefore, SDCL 8-3-10 authorized the township to reconsider the tax levy at the subsequent special meeting.

[¶ 10.] Zubke also argues that the notice of the special meeting was insufficient to “set” the tax levy at the special meeting.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 SD 43, 731 N.W.2d 918, 2007 S.D. LEXIS 48, 2007 WL 1224882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zubke-v-melrose-township-sd-2007.