(concurring in part and dissenting in part).
I concur with the majority’s disposition of all issues in this case except the declaratory judgment issue.
The majority opinion cites Arneson v. Baker, 76 S.D. 262, 77 N.W.2d 325 (1956) in which this court acknowledged the split of authority among jurisdictions on the question of whether the existence of another adequate remedy precludes proceedings under the Declaratory Judgment Act in tax matters. We held in Ameson the predecessor statute to SDCL 10-27-1 and 10-27-2 did not constitute the exclusive remedy and that declaratory judgment actions would be permitted where the determination of such questions would not hinder the tax collection process. Arneson, 77 N.W.2d at 327. A declaratory judgment statute does not create or change any substantive rights, however, and will not be permitted to circumvent the legislative purpose of other statutes. See generally 26 C.J.S. Declaratory Judgments §§ 7 and 9 (1956) (explaining declaratory judgment acts’ effect on substantive rights and relationship with other statutes). Aso, where a specific statute conflicts with the declaratory judgment statute, the specific statute must prevail. Id. at § 9. See also Meyerink v. Northwestern Pub. Serv. Co., 391 N.W.2d 180, 184 (S.D.1986). As recently as 1989, we stated the purpose of our “protest and suit” statutes is:
to permit taxing districts which have made levies for their needs to receive the contemplated revenue whereby, they will not be crippled in operation, and disputes with reference to the legality thereof are to be deferred for subsequent decision with the opportunity to make adequate provisions for refund if adjudged.
Riverview Prop. v. State Bd. of Equalization, 439 N.W.2d 820, 823 (S.D.1989) (citing Chicago, Milwaukee, St. Paul & Pac. R.R. Co. v. Bd. of Comm’rs of Walworth County, 248 N.W.2d 386, 389-90 (S.D.1976)); (quoting Salem Indep. Sch. Dist. No. 17 v. Cir. Ct. of McCook County, 60 S.D. 341, 244 N.W. 373, 377 (1932)). In other words, whether the action is brought under these statutes or the declaratory judgment act, the taxes cannot remain unpaid pending the outcome of the lawsuit.
We have stated the decision to grant or deny a request for declaratory judgment action rests with the trial court’s discretion and, when granted, South Dakota’s declaratory judgment act “is to be liberally construed and administered.” North Star Mut. Ins. Co. v. Kneen, 484 N.W.2d 908, 911 (S.D.1992) (citing Royal Indem. Co. v. Metropolitan Cas. Co. of N.Y., 80 S.D. 541, 546, 128 N.W.2d 111, 114 (1964) and Kneip v. Herseth, 87 S.D. 642, 647-48, 214 N.W.2d 93, 96 (1974)). However, while construction of declaratory judgment acts should be liberal, such construction must be reasonable and *290confined within definite limits; such acts are not to be used as instruments of procedural fencing, either to secure delay or to chose a forum. Williams v. Southern Bank of Norfolk, 203 Va. 657, 125 S.E.2d 803, 807 (App.1962) (citing 26 C.J.S. Declaratory Judgments § 9 (1956)). In Arneson, we defined those limits to be those situations in which the collection of tax revenues would not be delayed by the declaratory relief proceedings. Arneson, 77 N.W.2d at 327.
In the present case, there is evidence in the record that the taxpayers had not paid their 1993 taxes levied by Sully County at least as of the date of the motions hearing, April 29, 1994, and that said taxes would become delinquent April 30, 1994. The circuit judge announced his decision at that hearing and filed his order May 10, 1994 so there is no further evidence as to whether the taxes at. issue here were paid before becoming delinquent, or, in fact, whether they have been paid as of this date.
I dissent because it appears under the facts of this case the request for declaratory judgment has been for the purpose of avoiding payment of an assessed tax, which our holding in Arneson will not permit.