(dissenting).
[¶ 28.] I would reverse Issues 1, 2 and 3 and not reach Issue 4 because the taxpayers would not be the successful party.
[¶ 29.] Issue 1 is key to the case and where the majority opinion misses the mark.
[¶ 30.] SDCL 13-5-1 provides:
Any territory organized for the express purpose of operating not less than a thirteen-year school program and governed by an elected school board is defined to be a school district. It may sue and be sued, contract and be contracted with, purchase, hold, and use personal and real property for school purposes, and sell and dispose of the same.
(emphasis supplied).
[¶ 31.] SDCL 13-8-39 provides in part:
[T]he school board has general charge, direction and management of the schools of the district and control and care of all property belonging to it. The school board may levy taxes, borrow money, employ any necessary personnel, lease real and personal property, ... purchase all necessary books and equipment, purchase real property and erect necessary buildings for the operation of such schools.
(emphasis supplied).
[¶ 32.] The majority opinion attempts to convince us that despite all these direct and express powers, the School Board does not have the express or implied power to defend its decision to opt out of spending limitations or did not cause Kur-tenbach and Johnson to bring this election contest for the School Board. Nonsense.
[¶ 33.] SDCL 12-22-3 may have caused the parties and the trial court to believe that the School Board could not bring an election contest because the statute provides in part that: “[s]uch contest may be instituted by any registered voter who was entitled to vote on a referred or submitted question!.]” A more accurate reading makes it obvious that any member of the School Board who was a registered voter could have brought such action.
[¶ 34.] In fact, that is very close to what actually happened. The Superintendent contacted the School Board’s attorney, Richard Helsper, who began working *548on the question. After a review of SDCL 12-22-3 and conversations with the Superintendent, Attorney Helsper became counsel for Kurtenbach and Johnson to initiate the election contest for the School Board. Any one of the School Board members could have done the same and the School Board could have paid the School- Board’s attorney to represent them. It clearly appears that Attorney Helsper was the School Board’s agent in causing Kurten-bach and Johnson to bring the election contest for the School Board.
[¶ 35.] In my view, SDCL 13-5-1 empowers the School Board “to sue and be sued, contract and be contracted with,” and SDCL 13-8-39 permits them to “employ any necessary people.” The School Board may do so expressly and directly, or as here, impliedly and indirectly.
[¶ 36.] The School Board is the elected representative of residents of the School District and has an obligation to defend its decision to opt out of spending limitations and can “employ any necessary personnel” to do so. See SDCL 13-8-39.
[¶ 37.] We should reverse on Issue 1 because the payment or ratification of attorney fees to Attorney Helsper was legal, even though indirect. We should also reverse Issues 2 and 3, in part for the reasons stated in the majority opinion. Finally, we need not reach Issue 4 because the taxpayers would not be the successful party-
[¶ 38.] KONENKAMP, Justice, joins this dissent.