(dissenting).
I dissent because the majority opinion overrules longstanding settled law of this state. First, whether plaintiff had a plain, speedy, and adequate remedy in the ordinary course of law is a legal question rather than a factual question, and as such, is fully reviewable by this court. Permann v. Dept. of Labor, Unemp. Ins. Div., 411 N.W.2d 113, 117 (S.D.1987). Second, a contest provided by SDCL 12-22-1 does not provide a remedy for an elector or taxpayer to prohibit the illegal expenditure of public funds on a void election (The trial court found the petitions for referendum are defective which the majority opinion does not dispute nor address). Third, we have held for many years that invalid petitions must be challenged before an election, or the invalidity of the petition is waived. Noel v. Cunningham, 68 S.D. 606, 5 N.W.2d 402 (1942); State ex rel. Pryor v. Axness, 31 S.D. 125, 139 N.W. 791 (1913). Finally, the purpose of SDCL ch. 12-22 is to insure a valid election resulted in a free and fair expression of the will of the voters. In the instant case, the outcome of the election is not the issue. Instead, the question is whether the election was void ab initio. Larson v. Locken, 262 N.W.2d 752 (S.D.1978). I would affirm.