(dissenting).
Movant/State of South Dakota was not entitled to judgment as a matter of law. SDCL 15-6-56(c).
A court must give the non-moving party the benefit of any doubt as to the propriety of granting summary judgment. Hurney v. Locke, 308 N.W.2d 764 (S.D.1981).
Be it a pleading, affidavit, or deposition, a court must give every reasonable inference which arises from said pleading, affidavit, or deposition, viewed most favorably, toward the non-moving party — in this instance, the students. Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968).
This Court is not bound by any decision of the circuit court as regards its determination of fact or of the law. As an appellate court, we should conduct an independent review of the record. Furthermore, until such time as the facts have been developed so that they are reasonably certain, it is wrong for a court to make a determination of law, for such a determination of law is based upon uncertainty of the facts in the case. N.L.R.B. v. Smith Indus., Inc., 403 F.2d 889 (5th Cir.1968). Where there are complicated issues of fact to be resolved, so as to address difficult questions of law, it is necessary to “simply *272recognize that there are instances where summary judgment is too blunt a weapon with which to win the day_” Miller v. Gen. Outdoor Advertising Co., 337 F.2d 944, 948 (2d Cir.1964). A judge cannot summarily try the facts. He should limit his role to applying the law to the facts which have been established by the showing before him. When there is conflicting evidence which causes conflicting interpretation, or where reasonable men might differ as to its significance, summary judgment is not a proper remedy. 10A Wright, Miller & Kane, Federal Practice and Procedure § 2725, at 106-09 (1983).1
In this case, the trial court struck five separate causes of action of the plaintiff. Defendants raised an impossibility of performance defense. The trial court determined that under the terms of Senate Bill 221, as a matter of law, the contracts with the students could not be performed by the Board.
Senate Bill 221 contains certain basic factual statements. Different conclusions and inferences may be drawn from said basic factual statements.
Students should have been permitted to phase out their educational programs. The majority of the programs offered at USD/S were not offered at other post-secondary institutions or institutions of higher education in South Dakota. Senate Bill 221 affected approximately 800 students enrolled in various educational programs. The educational rug was cut from under their feet. Now their legal rights are cut from under their feet. It is a tragedy of great dimension and unparalleled in South Dakota educational history. Prisoners in the State Penitentiary are now phased into students’ classrooms and dormitories. USD/S was an outstanding junior college and technical/vocational school. To this end, degrees were awarded such as Associate of Arts, Associate of Science, Bachelor of Science and Technology, and Bachelor of Science and Education.
The plaintiffs and aforesaid students were enrolled in these programs and had invested their time and money in consuming college courses, admissions counselors, reading admission brochures for pre-enrollment use, and generally relying upon the representations of that institution’s staff and faculty members regarding their educational programs. By Section 4 of Senate Bill 221, the Board of Regents and the Board of Vocational Education were directed to “take all necessary steps to insure that all students presently enrolled at the University of South Dakota at Springfield shall have the opportunity to complete their course of study in South Dakota at other public, post-secondary educational schools, public higher education institutions or a combination thereof through an articulation of agreements.” Furthermore, said Bill further mandated that “The Board of Regents shall include a baccalaureate program of vocational education within at least one of the institutions under its control.” By Section 4 of this Act, the plaintiffs/ students enrolled in various programs and courses of study were entitled to complete their course of instruction and the Legislature appropriated money to support the directive contained in said Senate Bill 221.
On June 30, 1984, a day in educational infamy, all educational programs were terminated at USD/S. There were hundreds of depositions taken of students and these reflect the composite/deep problems pressed upon these students: Many were forced to relocate out of South Dakota; some were transferred to other institutions and were forced to modify their academic *273programs which necessitated additional semesters of study; many students were unable to find an equivalent program and had to change their major; some were forced to discontinue their college education — altogether.
Traumatic, indeed, was Senate Bill 221 and now plaintiffs/students are told, before they ever have a chance to actually have their case heard in a court of law, that they have no case. In the depositions, most students testified that they were never provided an opportunity to continue the educational programs which they had begun at USD/S in the State of South Dakota.
It appears that hundreds of depositions were not considered by this trial court, for they were never transcribed in time for the trial court to consider them. Summary judgment should not have been granted in this case until all facts were sufficiently developed to enable the trial court to be reasonably certain that it was correct in its determination of the law. N.L.R.B., 403 F.2d 889.
Summary judgment should not be granted before discovery is completed. It was not completed here. Murrell v. Bennett, 615 F.2d 306 (5th Cir.1980). In this case, the State of South Dakota relies upon an affidavit of one Mr. Marshall wherein a question of fact on an ultimate issue supposedly brings forth the impossibility of performance by the Regents due to a lack of funding. Plaintiffs/students have argued, before us, that additional discovery will reveal that there were funds available to fund their educational pursuits. South Dakota tries to stonewall this by strenuously objecting to this Court taking judicial notice of the availability of funds to support plaintiffs’ educational programs at Springfield. If the State of South Dakota is saying “we have no money and it was impossible for us to perform,” and then reverted $5.8 million in unused monies to the general funds for the fiscal year 1984, one of the State’s basic arguments is nullified. See J. Calamari & J. Perillo, The Law of Contracts, § 13-1 (2d ed. 1977); J. Murray, Murray on Contracts, §§ 197, 198 (2d ed. 1974); L. Simpson, Handbook on the Law of Contracts, §§ 174,180 (2d ed. 1965) (all stating the general rule that performance is mandated and is only excused upon occurrence of extraordinary events which are not capable of control by the party asserting impossibility as an excuse for nonperformance). For the State of South Dakota to argue that Senate Bill 221 rendered the defendants unable to perform their contractual obligations, appears to be a most tenuous argument and most certainly a genuine issue of material fact.2 There is no language in Senate Bill 221 which directs the Board of Regents to terminate the educational programs in which the USD/S students were enrolled. The absolute converse is true. In point of fact, the *274Board of Regents was absolutely directed to carry on these students’ educational endeavors to insure that the students would complete their course of instruction as I have pointed out above. In Section 7 of the Act, a transfer of funds was established to support that directive.
Therefore, in my mind, summary judgment was improper at the time-juncture when it was granted and I respectfully dissent from the majority opinion affirming the trial court’s decision. There were, and are, genuine issues of material fact. Summary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue should be resolved against the movant. American Indian Agricultural Credit v. Fort Pierre Livestock, Inc., 379 N.W.2d 318 (S.D.1985).
. Plainly, in this case, the burden of showing an absence of any genuine issue of material fact rests upon the State and if facts were in dispute, summary judgment should have been denied. See 10A Wright, Miller & Kane, at 106-09. See also Wilson, 83 S.D. at 212, 157 N.W.2d at 21. Moreover, examination of depositions of Joseph McFadden, President of the University of South Dakota, David Lorenz, Associate Director of Admissions at the University of South Dakota, Michelle Tapken, President of the Board of Regents at the time of USD/S closure, indicated existence of genuine issues of material fact, specifically pertaining to the planning of transition programs and the availability of funds with which student programs may have been supported.
. See note 1, and accompanying text, supra. Also, the State appears to have camouflaged evidence which points to the possibility that funds were, in fact, available to facilitate transitional education programs which were called for in Senate Bill 221. If funds were available, the State would obviously be privy to such knowledge and the burden of proving the existence of said funds should not be upon plaintiffs/students. Rather, the State had a duty to show that no money existed, as it has been established, as a general rule of evidence, that when evidence as to an issue is peculiarly within the knowledge, grasp, or control of a party, the burden of producing that evidence rests upon him. See Campbell v. United States, 365 U.S. 85, 96, 81 S.Ct. 421, 427, 5 L.Ed.2d 428, 437 (1961); United States v. New York, N.H., & H.R.R., 355 U.S. 253, 256, 78 S.Ct. 212, 214, 2 L.Ed.2d 247, 250 n. 5 (1957); Selma, R. & D. R.R. v. United States, 139 U.S. 560, 567-68, 11 S.Ct. 638, 640, 35 L.Ed. 266, 269 (1891); Greenleaf's Lessee v. Birth, 31 U.S. (6 Pet.) 302, 312, 8 L.Ed. 406, 410 (1832). This general rule also applies to motions for summary judgment. See 10A Wright, Miller & Kane, § 2727, at 143. Indeed, there is no universal test to look to when applying the burden of proof “[n]or ought there to be; for the allotment of the risk (or burden) is largely a matter of experience, depending on fairness to the respective parties in the various kinds of issues.” J. Wigmore, A Student’s Textbook of the Law of Evidence, § 446, at 444 (1935) (emphasis added). Again, in summary judgment situations, "[t]he burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law...." Wilson, 83 S.D. at 212, 157 N.W.2d at 21.