(dissenting).
I would reverse and remand with instructions that the circuit court be directed to order the Pennington County Commissioners to grant the Spring Creek Taxpayers Association (appellant) abatement of taxes for one-half of Rapid City Independent School District No. l’s (RCI/1) 1970-71 fiscal year.
I am convinced that the appellant, all of whom are identified in the record as being taxpayers and real property owners within the old Spring Creek Common School District No. 12 (SCD/12), now absorbed into RCI/1, have been double taxed for one-half of the 1970-71 school year.
As a result of the school reorganization effective on July 1, 1970, the students of the former SCD/12 were transferred to RCI/1 in the fall of 1970. The Pennington County Board of Education determined that an additional $6,207.52, over and above the 1970 tax receipts, would be needed from the Spring Creek taxpayers in order to meet the equalization of assets formula. To discharge this deficiency, the county board directed the Pennington County Auditor to place a mill levy against the taxable property in the former SCD/12, sufficient to recover that amount. This should have ended the question of taxation for the remaining school months in 1970. However, it did not.
In August of 1970, the RCI/1 submitted its budget to the county auditor for the fiscal year of July 1, 1970, through June 30, 1971. The Pennington County Auditor, pursuant to SDCL 10-12-29, “spread a levy” of 33.91 mills “over the taxable property of the school district sufficient to raise the money requested by the school district.” Although such taxes became due on the first day of January of the next year following assessment (SDCL 10-21-4), it is important to note that these taxes went to the RCI/1 school district to meet its proposed budget, which included a portion of the school years 1970-71 and 1971-72. This result is due to the fact that school districts run on a fiscal, rather than a calendar year. This budget covered the same six-month period of 1970 for which the Spring Creek taxpayers were already required to pay tuition and were taxed upon by virtue of the orders of the Pennington County Board of Education.
*107The majority opinion states that the special mill levy of 2.91, assessed against the Spring Creek taxpayers, was combined with the other school levies, totaling 33.91 mills. The problem inherent in this analysis is that the budget had to be prepared by the business manager of the RCI/1 school district before September 1, 1970. SDCL 13-11-2. Furthermore, the budget of RCI/1 could not have contemplated the educational costs of Spring Creek students, as the Pennington County Board of Education did not determine that a levy for tuition expenses would be required until September 21, 1970.
Chapter 42 of the 1968 Session Laws, which was in effect in 1970, provides that only the county board of education may authorize a tax levy against the property located within the boundary of a former school district necessary to discharge such liabilities. If it is true that the 33.91 mill levy included the 2.91 mills to discharge the SCD/12’s liabilities, the RCI/1 school board and business manager determined the liabilities of SCD/12, which they were not empowered to do. Article XI, section 8, of the South Dakota Constitution states, in part: “No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same . . . .” The imposition of the 33.91 mill levy created a new and additional tax, over and above the costs of educating the students in the former SCD/12 for the remainder of the 1970 school months.
I maintain that the people of SCD/12 should pay for the cost of educating their children, but not one penny more. In arriving at its budget proposals, the RCI/1 school board and business manager had to take into account the extra cost of educating these additional students for the 1970-71 school year, which included an overlap of this six-month period. At this time, the Spring Creek taxpayers were already being taxed and paying these students’ tuition. This is contrary to our state statutes, constitution and the spirit of fairness that is to prevail in the school reorganization process. It is for this reason that I would reverse and remand with instructions that the circuit court be directed to order the appellant’s abatement of taxes for one-half of RCI/l’s 1970-71 fiscal year, pursuant to SDCL 10-18-1(6).