Zubke v. Melrose Township

#24279-a-SLZ

2007 SD 43

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

JERALD ZUBKE, Plaintiff and Appellant,

v.

MELROSE TOWNSHIP,
GRANT COUNTY, SOUTH DAKOTA, Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
GRANT COUNTY, SOUTH DAKOTA

* * * *

HONORABLE ROBERT L. TIMM
Judge

* * * *

WILLIAM E. COESTER Attorney for plaintiff
Milbank, South Dakota and appellant.

WILLIAM C. GARRY of
Cadwell, Sanford, Deibert & Garry Attorneys for defendants
Sioux Falls, South Dakota and appellees.

* * * *

CONSIDERED ON BRIEFS
ON MARCH 19, 2007

OPINION FILED 04/25/07
#24279

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 Zubke 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

1. SDCL 10-13-35 provides in part:

For taxes payable in 1997, and each year thereafter, the total amount
of revenue payable from taxes on real property within a taxing district,
excluding the levy pursuant to §10-13-36, may increase no more than
the lesser of three percent or the index factor, as defined in §10-13-38,
over the amount of revenue payable from taxes on real property in the
preceding year, excluding the amount of taxes levied pursuant to §10-
13-36. After applying the index factor, a taxing district may increase
the revenue payable from taxes on real property above the limitations
provided by this section by the percentage increase of value resulting
from any improvements or change in use of real property, annexation,
minor boundary changes, and any adjustments in taxation of property
separately classified and subject to statutory adjustments and
reductions under chapters 10-4, 10-6, 10-6A, and 10-6B, except §10-6-
31.4, only if assessed the same as property of equal value. A taxing
district may increase the revenue it receives from taxes on real
property above the limit provided by this section for taxes levied to pay
the principal, interest, and redemption charges on any bonds issued
after January 1, 1997, which are subject to referendum, scheduled
payment increases on bonds and for a levy directed by the order of a

(continued . . .)
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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, 2006, at a special meeting held on April 10, 2006.

Decision

___________________
(. . . continued)
court for the purpose of paying a judgment against such taxing
district.

2. Although Zubke contends there is a factual conflict concerning the voting, the
circuit court specifically found that only those persons who attended the
annual meeting were allowed to vote on the motion to reconsider.

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[¶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 NW2d 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

3. Zubke also cites Robert’s Rules of Order as authority for the proposition that
reconsiderations must be made during the same meeting as the original
(continued . . .)
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[¶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. . .

(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.

___________________
(. . . continued)
motion. However, Zubke has not cited any authority making those rules
binding on townships. He further concedes that Melrose Township had not
adopted those rules.

4. Zubke also argues that the alternative method must be used at the same
meeting. However, he cites no authority for his contention. Moreover, the
(continued . . .)

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[¶9.] In this case, the voters of Melrose 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. SDCL 8-3-5 governed the

notice required for township special meetings. It provided in relevant part that:

Every notice given for a special township meeting shall specify
the purpose for which it is to be held, and no business shall be
transacted at such meeting except such as is specified in such
notice.

Id.

[¶11.] Zubke specifically contends that because the notice of the special

meeting indicated that the purpose of the meeting was “reconsidering the motion for

a tax call,” there was no notice that the tax levy might be set at $20,000. We

disagree with this semantical argument.

___________________
(. . . continued)
text of the statute does not suggest that the alternative method must be
utilized at the same meeting.

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[¶12.] In this case, the notice of a special meeting indicated that the purpose

of the special meeting was the reconsideration of the initial tax decision. We believe

that this notice gave fair warning of the purpose of the special meeting, whether one

wishes to label the purpose of that meeting as reconsidering the motion to set the

original levy or simply resetting the initial tax levy. Therefore, the notice was

sufficient to allow a change in the tax levy at the special meeting.

Certification of the Tax Levy

[¶13.] Zubke finally argues that the April 11th certification was too late. He

contends that certification of the tax levy was not allowed more than ten days after

the last Tuesday in March. Although Zubke acknowledges that SDCL 10-12-7 5

authorized tax levies to be certified by October 1st of each year, he contends that

statute was limited by SDCL 10-12-26, 6 which provided that certifications must

occur within ten days of the last Tuesday in March following the annual meeting.

5. SDCL 10-12-7 provided in part:

All county, township, municipal, sanitary district, and school taxes,
except special assessments in municipalities, shall be levied or voted in
specific amounts of money required and within the limitations fixed by
law. The amount of such levies made by any of such taxing districts
except counties shall be certified to the county auditor of the county by
the clerk or corresponding officer of the taxing district on or before the
first day of October of each year and such certificates shall be filed by
such auditor as permanent records of his office and be open to public
inspection at all times.

6. SDCL 10-12-26 provided in part:

On the last Tuesday in March of each year, or within ten days
thereafter, the board of supervisors of each organized civil
township shall levy the annual taxes for the ensuing year, as
voted at the annual town meeting, and immediately thereafter
(continued . . .)
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[¶14.] Zubke’s argument requires us to interpret two conflicting statutes.

“[W]here statutes appear to conflict, it is our responsibility to give reasonable

construction to both, and if possible, to give effect to all provisions under

consideration, construing them together to make them ‘harmonious and workable.’”

Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶4, 543 NW2d 787, 789 (quoting

Whalen v. Whalen, 490 NW2d 276, 280 (SD 1992)). Furthermore, “[w]e should not

adopt an interpretation of a statute that renders the statute meaningless when the

Legislature obviously passed it for a reason.” Peterson, ex rel. Peterson v. Burns,

2001 SD 126, ¶30, 635 NW2d 556, 567-568 (citing Faircloth v. Raven Ind. Inc., 2000

SD 158, ¶9, 620 NW2d 198, 202).

[¶15.] If we were to accept Zubke’s argument that SDCL 10-12-26 controls in

all circumstances, it would render both SDCL 10-12-7 and SDCL 8-3-10

meaningless. If the certification must always occur within ten days of the last

Tuesday in March, the October deadline referred to in SDCL 10-12-7 and the

authorization to reconsider previous actions referred to in SDCL 8-3-10 would have

no meaning. On the other hand, a harmonious interpretation of the statutes, which

would give effect to all, would require that when a levy is set at the annual meeting

and is not reconsidered, the “ten days after the last Tuesday in March” deadline for

certification applies. However, when a levy is reconsidered under SDCL 8-3-10,

such that the “ten days after the last Tuesday in March” deadline cannot be met,

___________________
(. . . continued)
the township clerk shall certify to the county auditor the
amounts of such levies. . . .

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then the October 1st deadline applies. This is the only interpretation that gives

effect to all of the statutes.

[¶16.] Affirmed.

[¶17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

MEIERHENRY, Justices, concur.

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