(dissenting).
To establish a superimposed school district our statutes require the affirmative favorable vote of “the majority of the electors” in the independent and common school districts affected. SDCL 13-6-50 and 13-6-51. It is impossible, in my opinion, to construe “a majority of the electors in a school district” to mean “a majority of the votes cast at a special (school) election”.
The word “elector” is a generic term which means a person qualified to vote. The word “voter” is more restrictive and means an elector who has voted. Our legislature used these terms advisedly throughout the school district reorganization law. For example, in SDCL 13-6-49 only a majority of the votes cast at a special election was deemed necessary to include territory in a reorganized school district. In SDCL 13-6-34, 60 % of the votes cast in a special election is required and in SDCL 13-6-85 relating to minor boundary changes the petition is required to be signed by “over fifty per cent of the electors residing in the area to be transferred by such boundary change”. In SDCL 13-6-86 affecting a major district boundary change the petition is required to be signed “by at least ten per cent of the electors residing in the area to be transferred by such boundary change. Therefore, throughout the new school district reorganization act the terms “voters” and “electors” are used intentionally by the legislature with full knowledge and appreciation of the difference in their meaning.
It is also impossible for me to subscribe to the rule stated in the majority opinion to the effect that when qualified voters absent themselves from the special election it is presumed they assent to the expressed will of those voting. This rule logically and reasonably applies to elections requiring a majority of the votes cast or a majority of the electors voting. It cannot logically be applied to an election which requires “a majority of all electors residing in the district”.
*21The law on this subject and our cases is correctly and fully summarized in the case of Spangler v. City of Mitchell, 35 S.D. 335, 152 N.W. 339, as follows:
“An examination of the many decisions of state courts construing restrictive statutory and constitutional provisions requiring authorization of bonds issued and other matters, at general or special elections, discloses that in most instances the language of the particular statute or c'onstitutional provision is controlling. These provisions group themselves into two classes: First, those which by express words or by necessary implication require only a majority of the votes cast at the election; and, second,'those which require the votes of a majority of the electors within the city, or a majority of the electors or of the voters qualified to vote at the election. Statutes and constitutional provisions of both classes exist in this state.
“Adkins v. Lien, 10 S.D. 436, 73 N.W. 909, construed section 2, art. 9, of the Constitution, relating to elections for county seats, which requires ‘a majority of all the votes cast at said election.’ In that case Justice Fuller said:
“ ‘The phrase “a majority of all votes cast at said election” is so transpicuous that no rule of construction has any application thereto.’
“Although perhaps not controlling in that case, the statute referred to in Treat v. De Jean, 22 S.D. 505, 118 N.W.709, belongs to the first class, inasmuch as it requires only a .majority of the electors ‘voting at such election.’
“In the second class is found Williamson v. Aldrich, 21 S.D. 13, 108 N. W. 1063, which construed section 4, art. 13, of the Constitution, enlarging and also restricting municipal indebtedness for certain purposes, unless authorized by a vote in favor thereof, by ‘a majority of the electors of such county, municipal corporation,’ etc., incurring the same. *22This provision was held to require a majority of all the electors within the city. In the same class is Lavery v. Logan School District, 28 S.D. 166, 132 N.W. 683. That decision construed a statute governing the removal of schoolhouses which required a vote of a ‘majority of the electors of the entire district.’ In State ex rel. [Clark] v. Stakke, 22 S.D. 228, 117 N.W. 129, a similar construction was given a statute which required that ‘a majority of the voters of such township, town or city, shall vote in favor of such sale.’ Many decisions may be found construing the two classes of statutes and constitutional provisions. Southington v. Southington Water Co., 80 Conn. 646, 69 Atl. 1023, 13 Ann.Cas. 411, note; Battle Creek Brewing Co. v. Board of Supervisors, 166 Mich. 52, 131 N.W. 160, Ann.Cas. 1912D, 946; State ex rel. [Blair] v. Brooks, 17 Wyo. 344, 99 Pac.874, 22 L.R.A.(N.S.) 478.
“The language of the statute under discussion in this case (section 1229, subd. 5, Pol.Code) is as follows:
“ ‘Provided no bonds shall be issued by the said city council under the provisions of this section either for general or special purposes unless at an election * * * the legal voters of said city by a majority shall be determined in favor of issuing said bonds.’
“To which class does this statute belong? A careful and somewhat extended examination of decisions construing similar statutes leads us to the conclusion that it belongs to the first class, and that it requires only a majority of the votes cast at the special election.”
SDCL 13-7-4 provides that voter registration for school districts shall be as provided in Chapter 12-4. Chapter 12-4 c'ontains a comprehensive procedure for keeping the voter registration lists current and correct. According to SDCL 12-4-9 the county auditor is required to provide a list of vot*23ers containing a list of all persons declared by the constitution of the state to be electors and entitled to vote, alphabetically arranged, residing in each voting precinct and independent school district within the county. The registration list must be brought up to date with each boundary change of a precinct or school district. SDCL 12-4-11. The list is kept current semiannually on any changes and deaths, 12-4-18, and annually there must be an elimination of excess names from these lists, 12-4-19. Our voter registration list was comprehensively amended by Chapter 92 of the 1961 Session Laws. Since then it is fairly easy to determine with a reasonable degree of accuracy the number of electors registered in any voting district. I am in agreement with Judge Homeyer this election did not carry by a majority of the electors in the districts affected and the case should be reversed.