text:
    2001 ND 52
    GLOBAL ACQUISITIONS, LLC, Plaintiff and Appellee, v. BROADWAY PARK LIMITED PARTNERSHIP, CNA Insurance d/b/a Firemen’s Insurance Company of Newark, U.S. Bank, National Association, City of Fargo, a Municipal Corporation, Defendants, and REO Properties, LLC, Defendant and Appellant.
    No. 20000132.
    Supreme Court of North Dakota.
    March 20, 2001.

      Joseph A. Turman, DeMars & Turman, Fargo, ND, for plaintiff and appellee.
    Douglas A. Christensen (argued) and Margaret Moore Jackson (on brief), Pearson Christensen, Grand Forks, ND, for defendant and appellant REO Properties, LLC.
   SANDSTROM, Justice.

[¶ 1] REO Properties, LLC (“REO”), appealed from a judgment evicting it from a commercial building in Fargo. We hold the trial court’s findings of fact are adequate to support its conclusion REO did not meet its burden of establishing equitable estoppel against Global Acquisitions, LLC (“Global”), and we affirm.

I

[¶ 2] The Northern Pacific Railway Company (“Railway Company”) owned certain land in downtown Fargo. Herbst, Inc., rented the land and owned the commercial buildings situated on it. In 1983, Herbst, Inc., assigned its lessee rights under its amended 1968 lease with the Railway Company and transferred its interest in the commercial buildings to Broadway Park Limited Partnership. That partnership arranged M.I.D.A. (Municipal Industrial Development Act of 1955, N.D.C.C. ch. 40-57) bond financing with the City of Fargo and Fireman’s Fund Insurance Company (“Fireman’s Fund”) on the commercial buildings located on the property. The partnership defaulted on the loan, and in July 1992 Firemen’s Fund redeemed the bonds and took a security interest in the buildings.

[¶ 3] In February 1999, REO purchased the underlying note and security interest from the Firemen’s Fund. REO took over management of the buildings and began collecting rents from the building tenants of the commercial building.

[¶ 4] One of the building tenants is Old Broadway Corporation, which operates the Old Broadway Bar and Restaurant. In November 1999, Global purchased from the Railway Company the land upon which the Broadway Office Park is located. As part of the sale, the Rahway Company assigned its lessor’s interest in the ground lease on the property to Global. Old Broadway Corporation and Global have overlapping ownership. When Global acquired the land, Old Broadway Corporation discontinued paying its monthly building lease rent to REO for the Old Broadway Bar and Restaurant operation. REO demanded Old Broadway Corporation pay past due rent and future monthly rent of $5400.

[¶ 5] Broadway Park Limited Partnership failed to make ground lease payments to Global. On January 10, 2000, Global served a notice of termination of the ground lease upon the defendants in this action, including Broadway Park Limited Partnership and REO, for non-payment of rent. On February 11, 2000, Global served upon the defendants a notice of intent to evict.

[¶ 6] On February 28, 2000, Global’s eviction action was tried to the court. Warren Ackley is the vice president and a shareholder of the Old Broadway Corporation, and he is a managing owner of Global. Todd Nedberg, the manager of REO, testified he and Ackley discussed Global purchasing the building in which the Old Broadway Bar and Restaurant was being operated and REO purchasing from Global some of the Broadway Office Park land. Nedberg testified Ackley led him to believe Global and REO would offset the monthly rents Old Broadway Corporation owed REO against the ground lease rent REO owed Global. Ackley testified he and Nedberg did not discuss rent offsets and no deals were made.

[¶ 7] At the close of the trial, REO was allowed to amend its answer to include an affirmative defense of equitable estoppel, claiming Global should be precluded from asserting non-payment of the ground lease rent by REO, because Ackley misled Ned-berg there was a rent offset agreement.

[¶ 8] The trial court found that REO, by reason of its security interest in the lease, “has taken some form of possession of the property and has been collecting rents from some of the tenants.” This finding has not been challenged by REO. The trial court concluded it would not terminate “the security interest of REO Properties, LLC and whatever security interest REO Properties, LLC, has continues to exist.” However, the trial court also concluded Global proved the tenants breached their agreement to pay rent under the ground lease, entitling Global to evict Broadway Park Limited Partnership and to evict REO from whatever possesso-ry interest REO had assumed in the property. Judgment of eviction was entered, from which REO appealed.

[¶ 9] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 33-06-01. REO’s appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 10] REO asserts the trial court failed to resolve the equitable estoppel issue and the court’s findings of fact are inadequate -to support any conclusion the court may have made regarding that issue.

A

[¶ 11] Under N.D.C.C. § 33-06-01(4), an eviction action to recover the possession of real estate is authorized when a lessee fails to pay rent for three days after the rent is due. An eviction action cannot be brought in the district court in connection with any other action, and no counterclaim can be interposed “except as a setoff to a demand made for damages or for rents and profits.” N.D.C.C. § 33-06-04. The trial court found REO failed to pay-rent on the ground lease for three days after it was due, thereby entitling Global to a judgment of eviction under N.D.C.C. § 33-06-01(4).

[¶ 12] The doctrine of equitable estop-pel is codified in N.D.C.C. § 31-11-06:

When a party, by that party’s own declaration, act, or omission, intentionally and deliberately has led another to believe a particular thing true and to act upon such belief, that party shall not be permitted to falsify it in any litigation arising out of such declaration, act, or omission.

[¶ 13] To establish equitable es-toppel, a plaintiff must show, on the part of the defendant: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are other than those which the defendant subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct will be acted upon by, or will influence, the plaintiff; and (3) knowledge, actual or constructive, of the real facts. Matter of Helling, 510 N.W.2d 595, 597 (N.D.1994). Reliance on the conduct of the party against whom equitable estop-pel is asserted must be reasonable, and there must be some form of affirmative deception by that party. Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 24, 590 N.W.2d 454. The party asserting equitable estop-pel has the burden of proving the elements of that defense. American Ins. Co. v. Midwest Motor Express, Inc., 554 N.W.2d 182,188 (N.D.1996).

[¶ 14] REO, after acquiring a security interest in the building housing the Old Broadway Bar and Restaurant, began collecting rents from the tenants of the building. Global, after acquiring title to the real estate in December 1999 from the Railway Company, became the lessor of the ground lease under which REO and the other commercial building tenants had an obligation to pay land rent. Nedberg testified there was an agreement or understanding between himself and Ackley to offset rents:

Q: Okay. So you did specifically address setoff issues?
A: Yes.
Q: At the — is it your perception at the end of this agreement, had it gone through, that you would still be required to pay rent or would it merely be a setoff? Would you have to—
A: It’s a setoff because the rent had already — they were going to subtract the amount that REO owed them and the balance would be coming to REO.
Q: Okay. What happened to that agreement?
A: When I met with Mr. Ackley on the 9th of February in his office like I’d mentioned early [sic], it was about a two or three hour meeting. His partner, Mr. Thorson, couldn’t attend the meeting because he was on vacation, I believe, in Grand Caman [sic], so when I left, Warren said that he had to call Randy to come up with some of the answers of our discussions.
Q: Including the setoff?
A: Yes.
Q: ... After your meeting on the 9th, were there any other discussions regarding setoff?
A: No....
Q: So you felt you had a deal that was setting off rents?
A: Yes.

The trial court then questioned Nedberg to clarify his testimony on this issue:

THE COURT: Okay, now, at one point you said that you had a deal but Mr. Ackley had to talk to Mr. Thorson. So that doesn’t sound too much like a deal to me. That’s (sic) sounds to me like some sort of a contingent agreement. Did you ever get any confirmation that Mr. Thorson consented to this deal?
A: The deal about the price of land or the offset?
THE COURT: Well see, I couldn’t really tell because....
A: Okay.
THE COURT: — it sounded like it was all mixed together, all jumbled, mumbled and that we needed to talk to Mr. Thorson. Now nobody ever told me that Mr. Thorson ever agreed, so it sounds like a promise to make a promise, which of course, the law doesn’t recognize as an enforceable contract. A contract in the future is not a contract. Horn book law....

[¶ 15] Later in the hearing, Ackley testified there was never any discussion or agreement about rent setoff:

Q: Was there any discussion of offsetting rent from the Old Broadway Corporation against railroad rent — railroad lease rent owed?
A: No, that was never discussed.
Q: Did you and Mr. Nedberg reach any agreements on January 27, 2000?
A: No, we did not.

The trial court also questioned Ackley about his testimony on this issue:

THE COURT: And there’s no deal relating to the offset of any rents?
A: I’d never heard the word offset come up in our conversations at one time.
THE COURT: Anything that — do you understand what everybody means when they talk about setoff and offset?
A: I do understand it. It was never discussed.
THE COURT: Nothing like that idea or that concept was ever discussed?
A: No, it was not.
THE COURT: All right. It just never happened?
A: Never happened.
THE COURT: All right, I guess it can’t get a lot plainer than that.

[¶ 16] Nedberg testified there were no discussions about rent setoffs after the February 9, 2000, meeting with Ackley. In a letter written by Nedberg to his attorney, Joseph Turman, on February 10, 2000, Nedberg states: “As you may be aware we have been talking with Warren Ackley about the land lease and the Old Broadway lease. As of today, we have not come to any agreement so I am writing to inform you of the situation.” (Emphasis added.)

[¶ 17] At the close of the hearing the court made the following relevant statements from the bench:

It is the opinion of the Court that Global is entitled to a Judgment of Eviction and to full restitution of the premises as regards REO Properties Limited Liability Company. Now REO has a security interest arising out of an assignment of certain lease obligations and certain contractual obligations. It is the opinion of the Court that whatever that security interest is, it continues to exist and that I am not empowered to foreclose that security interest.... I think that’s another item for another day.
[Global] has failed to carry a — the burden as to the amount of rent owed, but not the fact that rent is owed. The fact that rent is owed, is a sufficient basis for the eviction, but the failure to prove with specificity the amount of damages means that [Global] failed to carry the burden as to the amount of rent owed. Therefore, the claim for rent is dismissed without prejudice to the commencement of a subsequent record. The reason I’m dismissing it without prejudice is because frankly, there is evidence of all sorts of side deals and contracts and I didn’t find them to be of a sufficient basis to avoid the eviction. ... I believe that that resolves all of the disputes. (Emphasis added.)

In its written findings, the trial court found REO “failed to pay rent for more than three days” and concluded Global was entitled to evict REO from the premises under N.D.C.C. § 33-06-01(4).

B

[¶ 18] In a bench trial, N.D.R.Civ.P. 52(a) requires the court to “find the facts specially.” The rule also states, “[i]t will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court.” The rule requires findings of fact and conclusions of law sufficient to enable the appellate court to understand the factual determination made by the trial court and the basis for its conclusions of law and the judgment entered thereon. All Seasons Water Users v. Northern Improvement Co., 399 N.W.2d 278, 281 (N.D. 1987). The trial court must specifically state the subordinate facts upon which its ultimate factual conclusions rest, and this Court may examine a trial court’s memorandum opinion or oral ruling for the purpose of determining the facts found by the trial court. Federal Land Bank of St. Paid v. Lillehaugen, 404 N.W.2d 452, 459 (N.D.1987).

[¶ 19] While the trial court could have made more detailed factual findings to support its rejection of REO’s estoppel argument, we conclude the court’s written findings, together with its oral pronouncements from the bench, are adequate to ascertain the basis for its ruling on the equitable estoppel defense. The court expressly stated it found no deals or agreements which would preclude Global’s right to evict REO for non-payment of rent. Following the trial court’s questioning of Nedberg, the court explained it was very clear there had been no agreement on rent setoff and concluded “you can’t enforce an agreement to agree in the future.” The court’s findings are bolstered by Ned-berg’s own admission in his February 10, 2000, letter to his attorney that although there had been discussions regarding the leases, “we have not come to any agreement.”

Ill

[¶ 20] There is no persuasive evidence in the record of conduct by Global or Ack-ley, upon which Nedberg, as REO’s agent, could have reasonably believed there was an agreement to offset Old Broadway Corporation’s obligation to pay building rent to REO with REO’s obligation to pay ground lease rent to Global. We conclude the trial court duly considered REO’s equitable estoppel affirmative defense in this case. The trial court’s findings of fact on this issue are adequate to support its conclusion REO failed to prove conduct by Global that would estop Global from asserting nonpayment of rent by REO to evict under N.D.C.C. § 33-06-01(4). We therefore affirm the judgment of eviction.

[¶ 21] GERALD W. VANDE WALLE, C.J., and WILLIAM A. NEUMANN, CAROL RONNING KAPSNER, JJ„ concur.

[¶ 22] The Honorable MARY MUEH-LEN MARING disqualified herself after oral argument and did not participate in this decision.

      . The Northern Pacific Railway Company merged to become Burlington Northern Railroad Company, which subsequently merged and became The Burlington Northern and Santa Fe Railway Company.

      . In 1991, this section was amended to require eviction actions be brought in district court rather than in county court. 1991 N.D. Sess. Laws ch. 326, § 139. In 1997, the legislature amended this section to allow the district court to stay execution of a judgment of eviction in a case of “substantial hardship.” 1997 N.D. Sess. Laws ch. 290, § 1. These amendments are not relevant to the issues in this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2001 SD 20
    STATE of South Dakota, Plaintiff and Appellee, v. Nelda EKERN, Defendant and Appellant.
    No. 21600.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2001.
    Decided Feb. 26, 2001.
    Mark Barnett, Attorney General, Jason A. Glodt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Kelly D. Frazier, Pennington County Public Defender’s Office, Rapid City, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] An attorney with the Pennington County Public Defender once again claims a sentence violates the constitutional protection against cruel and unusual punishment. Here, the claim is that a two year penitentiary sentence for third offense felony DUI is constitutionally infirm. This suggestion “borders on the bizarre.” State v. Winchester, 438 N.W.2d 555, 556 (S.D. 1989).

[¶ 2.] Ekern is a chronic alcoholic and has been arrested over thirty times for drug and alcohol related offenses. She has eight lifetime DUI arrests, and, without counting the felony DUI in this ease, two felony DUIs in the last five years. She has completed five inpatient treatment programs and still drinks and drives.

[¶ 3.] In this case, she pled guilty and received the benefit of a plea agreement. Her sentence was within statutory limits. After considering “the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court,” Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d at 580, it is abundantly clear that there is not even a remote suggestion of gross disproportionality.

[¶ 4.] The judgment is affirmed.

[¶ 5.] MILLER, Chief Justice, SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.

      . All of the following cases have been summarily affirmed. See, 21497, State v. Kostaneski, 624 N.W.2d 358 (2001); 21368, State v. Herron, 622 N.W.2d 434 (2000); 21434, State v. Jeunesse, 622 N.W.2d 434 (Table) (2000); 21182, State v. Genco, 614 N.W.2d 828 (Table)(2000); 21238, State v. Stands, 614 N.W.2d 828 (Table)(2000); 21250, State v. Orem, 614 N.W.2d 828 (Table)(2000); 21112, State v. Verhelst, 608 N.W.2d 330 (Table)(2000); 20711, State v. Gear, 596 N.W.2d 734 (Table)(1999); 20607, State v. Meeks, 590 N.W.2d 709 (Table)(1999). See also all the cases cited in Justice Gilbertson's special concurrence in State v. Bonner, 1998 SD 30, 577 N.W.2d 575. We cite these cases not to contravene SDCL 15-26A-87.1(E), but to show the Pennington County Public Defender's pattern with regard to this issue.

      . Attorneys should be mindful of South Dakota Rules of Professional Conduct, Rule 3.1. Meritorious Claims and Contentions.


author: PER CURIAM

text:
    2001 SD 21
    STATE of South Dakota, Plaintiff and Appellee, v. Nelda EKERN, Defendant and Appellant.
    No. 21601.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2001.
    Decided Feb. 26, 2001.
    Mark Barnett, Attorney General, Jason A. Glodt, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Kelly D. Frazier, Pennington County Public Defender’s Office, Rapid City, SD, Attorneys for defendant and appellant.
   PER CURIAM

[¶ 1.] Within six weeks of committing the DUI in Appeal #21600, Ekern committed another. Pursuant to a plea agreement, she pled guilty to third offense felony DUI. The trial court sentenced her to two years in the penitentiary and ordered that this sentence be served consecutively to that in Appeal # 21600. Yet again an attorney with the Pennington County Public Defender has appealed arguing that this sentence is grossly disproportionate. Nonsense.

[¶ 2.] For the reasons set forth in Appeal #21600, the judgment is affirmed.

[¶ 3.] MILLER, Chief Justice, SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, participating.


author: GILBERTSON, Justice. AMUNDSON, Justice

text:
    2001 SD 28
    Betty E. BRECK, Plaintiff and Appellant, v. Governor William J. JANKLOW and Members of the South Dakota State Legislature 75th Special Session, Defendants and Appellees, and South Dakota State Cement Plant Commission, d/b/a Dacotah Cement, Intervenor and Appellee.
    No. 21832.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 28, 2001.
    Decided March 6, 2001.

      Betty E. Breck, Groton, SD, Pro se.
    Roger W. Damgaard of Woods, Fuller, Shultz & Smith, Sioux Falls, SD, Attorneys for defendant and appellee Governor William J. Janklow.
    Lawrence E. Long, Chief Deputy Attorney General and Jeffrey P. Hallem, Assistant Attorney General, Pierre, SD, Attorneys for defendants and appellees Members of the SD State Legislature 75th Special Session.
    James S. Nelson of Gunderson, Palmer, Goodsell, attorneys for intervenor and ap-pellee South Dakota State and Nelson, Cement Plant Commission, Rapid City, SD, d/b/a Dacotah Cement.
   GILBERTSON, Justice.

[¶ 1.] Betty E. Breck appeals a judgment dismissing various claims challenging the sale of the South Dakota State Cement Plant. We affirm.

FACTS

[¶ 2.] Since the early 1920s, the State of South Dakota has owned and operated its own cement plant in the Rapid City, South Dakota area. The State’s ownership of a normally private commercial enterprise can be attributed to the lack of an in-state cement producer in the early-1900s and the monopolistic prices being charged for the product during the post-World War I era of heavy infrastructure development. See Reeves, Inc. v. Stake, 447 U.S. 429, 431, 100 S.Ct. 2271, 2275, 65 L.Ed.2d 244, 247, n. 1 (1980). In simple terms, because the cement needs of the State and its citizens were not being met in an economic fashion by private enterprise, the State went into the business itself.

[¶ 3.] The Cement Plant has functioned over the years with varying degrees of success. It has supplied the cement needs of the State and has also operated as a commercial venture for profit by selling cement to private customers both in and out-of-state. In the last several years, during the country’s unprecedented economic expansion and a period of heavy construction, the Cement Plant has returned average profits to the State Treasury of $12,000,000 per year. However, despite these recent profits and consistent with modern business practices, the Governor and the Cement Plant’s governing commission and management have been involved in long-term strategic planning regarding the future operation of the Plant. Based upon this review, these entities have concluded that changing market forces and the slowing economy as well as mounting concentration and competition in the cement industry pose significant threats to the continued viability and profitability of the Cement Plant.

[¶ 4.] In response to these threats and over the course of the last year, the Governor and Cement Plant Commission and management began exploring the possibility of selling the Cement Plant and investing the proceeds in a manner providing a stable revenue stream for State government. After an appraisal of assets, contacts with suitable purchasers and the submission of proposals from several potential buyers, a sales agreement in principle was concluded on December 23, 2000 with Gru-pos Cementos de Chihuahua/GCC Daco-tah, Ine.(GCC).

[¶ 5.] The agreement for sale of the Cement Plant was made contingent on approval and ratification by the South Dakota Legislature by December 31, 2000. Thus, it was necessary for the Governor to call the Legislature into a special session that began on December 28, 2000. During the course of that two-day session, the Legislature passed a series of five bills and resolutions necessary to ratify various aspects of GCC’s purchase agreement for the Cement Plant.

[¶ 6.] Prior to the special legislative session, the plaintiff here, Betty E. Breck, pro se, of Groton, South Dakota, brought an action for declaratory and injunctive relief against the Governor and Legislators of the special session. Breck sought a declaratory judgment that the sale of the Cement Plant was unconstitutional and illegal on various grounds and a restraining order preventing the consummation of the sale and its closing on February 28, 2001. Subsequently, the Cement Plant Commission was allowed to intervene in the action and a trial to the court was held on February 2. At the close of that trial, the trial court entered oral findings of fact, conclusions of law and an oral decision denying Breck all claims for relief. The trial court’s oral decision was subsequently incorporated by reference in its written findings of fact and conclusions of law and a ■written judgment was entered on February 9. Breck’s appeal followed. The defendants then filed a motion for expedited appeal proceedings and an expedited briefing schedule which this Court granted and approved in an order entered February 15. Additional facts will be set forth as they become pertinent to the issues in this appeal.

ISSUE ONE

[¶ 7.] Is the sale of the Cement Plant prohibited by the South Dakota Constitution?

[¶ 8.] Preparatory to the Legislature’s enactment of statutes initiating the State’s operation of the Cement Plant in 1919, the South Dakota electorate approved a constitutional amendment in 1918 that authorized the State’s entry into the cement business. The amendment is contained at SD ConstArt XIII, § 10 and provides:

The manufacture, distribution and sale of cement and cement products are hereby declared to be works of public necessity and importance in which the state may engage, and suitable laws may be enacted by the Legislature to empower the state to acquire, by purchase or appropriation, all lands, easements, rights of way, tracks, structures, equipment, cars, motive power, implements, facilities, instrumentalities and material, incident or necessary to carry the provisions of this section into effect: provided, however, that no expenditure of money for the purposes enumerated in this section shall be made, except upon a vote of two-thirds of the members elect of each branch of the Legislature, (emphasis added).

Breck argues the word “necessity” in this provision prohibits the Legislature from enacting any laws to sell the Cement Plant. We disagree.

[¶ 9.] Absent any constitutional language prohibiting the Legislature from authorizing the sale of the Cement Plant, we hold that it was fully empowered to do so. First, it is settled that, unless prohibited by some constitutional provision, a state may dispose of its property just as any citizen may dispose of his property. See Hen- v. Rudolf, 75 N.D. 91, 25 N.W.2d 916, 919 (N.D.1947). Accord, Adkins v. Kalter, 171 Ark. 1111, 287 S.W. 388, 389 (1926); Peters v. Twogood, 167 So. 206, 208 (La.Ct.App.1936); State v. Hubbard, 203 Minn. Ill, 280 N.W. 9, 12 (1938). Second, as this Court has repeatedly held, our constitutional provisions are not grants of power to the Legislature, but are instead limitations on legislative authority and, therefore, legislative acts are presumed to be constitutional. Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994). As was more fully explained in Wyatt v. Kundert, 375 N.W.2d 186,190-191 (S.D.1985):

The South Dakota Constitution, unlike the Constitution of the United States, does not constitute a grant of legislative power. Instead, our constitution is but a limitation upon the legislative power and the legislature may exercise that power in any manner not expressly or inferentially proscribed by the federal or state constitutions. Thus, except as limited by the state and federal constitutions, the legislative power of the state legislature is unlimited. “What the representatives of the people have not been forbidden to do by the organic law, that they may do.” “Consequently, in determining whether an act is unconstitutional we search the state and federal constitutions for provisions which prohibit its enactment rather than for grants of such power.” A presumption in favor of constitutionality is also accorded any legislative act and that presumption is not overcome until the act is clearly and unmistakably shown to be unconstitutional and no reasonable doubt exists that it violates constitutional principles, (citations omitted).

[¶ 10.] This Court cannot read the word “necessity” in Article XIII, § 10 in isolation and ignore its use within the phrase “public necessity.” (emphasis added). This violates settled rules of constitutional construction. See South Dakota Bd. of Regents v. Meierhenry, 351 N.W.2d 450, 452 (S.D.1984) (constitutional provision must be read giving full effect to all of its parts); Kneip v. Herseth, 87 S.D. 642, 659, 214 N.W.2d 93, 102 (1974) (in construing constitutional provision, no wordage should be found surplus and no provision can be left without meaning). The phrase “public necessity” has a particularized meaning in the context of a declaration by a public entity. A “[p]ublic necessity is a substantial or obvious community need in light of attendant circumstances. It is a somewhat nebulous concept which requires more than mere convenience but less than absolute or indispensable need.” Dept. of Fin. Instit. v. Colonial Bank & Trust Co., 176 Ind.App. 368, 375 N.E.2d 285, 288 (Ind.Ct. App.1978) (emphasis added). Accord Miller Transporters v. Public Serv. Com’n, 518 So.2d 1018, 1019 (La.1988) (to be a “public necessity” a service does not have to be absolutely indispensable); State Banking Bd. v. First State Bank, 618 S.W.2d 905, 908 (Tex.Civ.App.l981)(“public necessity” is a substantial or obvious community need in light of attendant circumstances as distinguished from a mere convenience on the one hand and an absolute or indispensable need on the other). As is clear from this definition, nothing in Article XIII,„ § 10’s use of the phrase “public necessity” should be construed to mandate the State’s ongoing participation in the cement business as an absolute or indispensable necessity of indefinite duration. Article XIII, §§12 and 14 similarly declare State participation in the power supply and coal mining business to be a “public necessity” and, yet, there is no State Power Plant or State Coal Mine. Given the constitution’s identical declarations of “public necessity” as to all of these enterprises, all enacted at the same time, we find no more obligation imposed on the State to participate in the cement business than in the power supply or coal mining business.

[¶ 11.] Certainly the balance of Article XIII, § 10 is discretionary and permissive in terms of the State’s participation in the cement business. The provision states that the State “may engage” in the business and that suitable laws permitting the State’s participation “may be enacted by the Legislature.” (emphasis added). This Court has repeatedly held that the word “may” should be construed in a permissive sense unless the context and subject matter indicate a different intention. See State v. Burgers, 1999 SD 140, ¶ 15, 602 N.W.2d 277, 281 (word “may” in a statute should be construed in a permissive sense). See also In Re Request of Governor Janklow, 2000 SD 106, ¶ 4, 615 N.W.2d 618, 620 (in interpreting constitutional sections, courts apply general principles of statutory construction). Nothing in the context and subject matter of Article XIII, § 10 requires a mandatory construction of its provisions concerning the State’s participation in the cement business.

[¶ 12.] The interpretation of Article XIII, § 10 urged by Breck not only runs afoul of the plain, permissive language of the provision, but also violates reason and common sense. Such an interpretation would require the State to continue participation in the cement business indefinitely even in the face of declining revenues or losses. Surely it was not the intention of the people in enacting Article XIII, § 10 in 1918 that the State operate a cement plant into perpetuity at a loss. It is the responsibility of this Court to interpret the constitution in a manner that avoids such absurd results. See State v. Wilson, 2000 SD 133, ¶ 14, 618 N.W.2d 513, 519 (this Court will not construe a constitutional provision to arrive at a strained, unpractical or absurd result).

[¶ 13.] Based upon the foregoing and absent reference to any constitutional provision prohibiting the Legislature from selling the State’s property or the Cement Plant in particular, we hold that the sale of the Cement Plant is not prohibited by the South Dakota Constitution.

ISSUE TWO

[¶ 14.] Does the sale of the Cement Plant violate state law?

[¶ 15.] Citing various provisions of SDCL ch 5-17, Breck argues the sale of the Cement Plant violates state law. Breck contends the pertinent provisions of SDCL ch 5-17 limit the Cement Plant Commission to selling only surplus property or a subsidiary business belonging to the Cement Plant. Asserting the Cement Plant itself is not “surplus property” or a “subsidiary business,” Breck argues the sale of the Cement Plant violates SDCL ch 5-17.

[¶ 16.] We decline to read the provisions of SDCL ch 5-17 as advocated by Breck. Contrary to her assertions, none of the statutes she cites mention the words “surplus property.” Rather, SDCL 5-17-15 authorizes the Cement Plant Commission to sell real property used by the Commission whenever “in its opinion” the property is “no longer needed in the operation of the state cement plant[.]” Similarly, SDCL 5-17-18 authorizes the Commission to sell personal property used in the operation of the Cement Plant whenever “in its opinion” the property is “no longer needed in the operation of the state cement plant[.]” Obviously if the determination is made that the State should get out of the cement business, a determination permitted by the constitution as explained under issue one, the Cement Plant’s property is no longer needed in its operation and the sale of that property is fully authorized by the statutes cited by Breck.

[¶ 17.] Moreover, and also contrary to Breck’s assertions, the Legislature did amend SDCL ch 5-17 during its special session to include the following provision:

Notwithstanding any other provision of law, including but not limited to chapter 5-7, the South Dakota State Cement Plant Commission when selling substantially all of its assets may lease all of the mineral interests reserved to the State of South Dakota in all real property owned, sold, acquired, leased, or conveyed by the State of South Dakota acting by and through the South Dakota State Cement Plant Commission in a manner and upon terms acceptable to the commission, (emphasis added).

SB 1, § 5, 75th Leg., 2000 SpecSess. (SD 2000). Thus, even if SDCL ch 5-17 did not contemplate a sale of all Cement Plant property before the special session, the language emphasized above certainly makes clear that such a sale is now contemplated by the chapter.

[¶ 18.] Finally, we note the implications of the special legislative session itself. The Governor’s proclamation convening the special session specifically provided that it was called to consider the “sale and disposal” of the Cement Plant and “the disposition of proceeds from the sale[.]” At the inception of the session, the Governor delivered a detailed address to a joint session of the Legislature devoted to an explanation of various aspects of the sale of the Cement Plant. During the course of the ensuing two day session, a total of five bills, three joint resolutions and one concurrent resolution were submitted and considered by the Legislature, all covering various aspects of the sale of the Cement Plant. See HB 1001, HJR 1001, SB 1, SB 2, SB 3, SB 4, SCR 1, SJR 1, SJR 2, 75th Leg, 2000 SpecSess (SD 2000). Ultimately, the Legislature passed the following bills and resolutions necessary to consummate the sale and to dispose of the proceeds:

1) An Act to amend South Dakota law in connection with the sale of substantially all of the assets of the South Dakota State Cement Plant Commission, to enable the continued operation and use of real property relating to the business of the cement plant, by amending chapter 43-2A relating to alien ownership of agricultural land restrictions, to amend chapter 47-9A relating to corporate farming restrictions, to amend Title 11 relating to zoning, to amend chapter 5-17 relating to the mineral leasing authority of the South Dakota State Cement Plant Commission, to zone South Dakota Cement Plant property, and to declare an emergency. — SB 1, 75th Leg, 2000 SpecSess (SD 2000).
2) An Act to revise certain provisions relating to constitutional amendments and submitted questions and to declare an emergency. — SB 2, 75th Leg, 2000 SpecSess (SD 2000).
3) An Act to set a special election for the voters’ consideration of a constitutional amendment to Article XIII, § 10 and to declare an emergency. — • SB 3, 75th Leg, 2000 SpecSess (SD 2000).
4) A Joint Resolution, Proposing and submitting to the electors at a special election designated by the Seventy-fifth Legislature, meeting in special session, an amendment to Article XIII of the Constitution of the State of South Dakota, relating to the creation and administration of a trust fund. — SJR 1, 75th Leg, 2000 Spec-Sess (SD 2000).
5) A Concurrent Resolution, Approving the sale of the South Dakota State Cement Plant. — SCR 1, 75th Leg, 2000 SpecSess (SD 2000).

[¶ 19.] While Breck is correct that the Legislature’s rules do provide that concurrent resolutions such as SCR 1 approving the sale of the Cement Plant, do not have the force of law, she neglects to mention that the same rule provides that such a concurrent resolution may be used to “instruct a department of state government[.]” Joint Legislative Rule 6A-1(2), 75th Leg (SD 2000) as adopted in SenJ-ourn 8, 75th Leg, 2000 SpecSess (SD 2000) & HseJourn 9, 75th Leg, 2000 SpecSess (SD 2000). Thus, SCR 1 was an appropriate means for the Legislature to instruct the Cement Plant Commission to proceed with the sale of the Cement Plant pursuant to its negotiations. Further, a resolution is indicative of “the will or opinion of the legislature on a particular subject of general concern.” Robert E. Moore, Comment, Legislative Resolutions: Their Function and Effect, 31 TexLRev 417 (1953). Resolutions are “entitled to respectful consideration by the courts.” 1A Norman J. Singer, Sutherland Statutory Construction § 29.08 (5th ed 1993).

[¶ 20.J The fundamental mission of a court in interpreting legislative acts is to ascertain and give effect to the intention of the Legislature (see S.D. Subseq. Injw'y Fund v. Federated Mut, 2000 SD 11, ¶ 18, 605 N.W.2d 166, 170 (cardinal principle of statutory construction is to give effect to the legislative intent)), and the foregoing acts leave no doubt as to that intention here. Acceptance of Breck’s contentions would mean that despite extensive negotiations and review by the Governor and Cement Plant Commission, despite the convening of a special legislative session devoted exclusively to the issue of the sale of the Cement Plant, despite the Legislature’s consideration of nine separate pieces of legislation concerning various aspects of the sale and its passage of five pieces of legislation approving details of the sale and despite the Legislature’s specific passage of a concurrent resolution endorsing the sale, we must now interpret its two day special session and its resulting legislation as idle and useless acts on the pretext that the sale is not legislatively authorized. This we will not do. This would be contrary to every charge imposed upon this Court in carrying out its interpretive function. See City of Sioux Falls v. Ewoldt, 1997 SD 106, ¶ 17, 568 N.W.2d 764, 768 (court’s obligation is to interpret law in a manner avoiding absurd results); Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 15, 592 N.W.2d 596, 599 (there is a presumption against a construction rendering a law ineffective or meaningless). See also Scott v. North Dakota Workers Comp. Bureau, 587 N.W.2d 153, 156 (N.D.1998) (it is presumed the legislature acts with a purpose and does not perform useless acts); Bickel v. Jackson, 530 N.W.2d 318, 320 (N.D.1995) (there is a presumption the legislature acts with purpose and does not perform idle acts).

[¶ 21.] Based upon the foregoing, we reject Breck’s contentions that the sale of the Cement Plant violates state law.

ISSUE THREE

[¶ 22.] Does the manner in which the sale of the Cement Plant has been conducted violate public policy?

[¶ 23.] Breck argues that the allegedly covert manner in which the Cement Plant was sold violates principles of public policy in a democratic government and voids the sale. While mentioning a number of terms used in describing the democratic process, she cites no legal authority for her policy contentions nor does she provide any authority on the effect these alleged policy violations should have on the sale of the Cement Plant

[¶ 24.] In addition, many of Breck’s contentions under this issue are not supported by the record. She asserts that, in selling the Cement Plant, the Legislature and Governor “totally usurped the power of the people,” that the “people had absolutely no opportunity for input, either before, during or after the sale,” that they “had no knowledge about the proposed sale,” and, that they “had no part in the brief deliberations.” This is simply not accurate.

[¶ 25.] First, Breck fails to provide any legal rationale for her assertion that the power of the people has somehow been usurped in the sale of the Cement Plant. In fact, the record shows that the people’s democratically elected representatives assembled at the call of their democratically elected governor and, in a democratic fashion, the majority of them voted to approve the sale of the Cement Plant. While Breck and others may disagree with that decision, we fail to perceive how this democratic process usurps the power of the people. See Independent Community Bankers Ass’n v. State, 346 N.W.2d 737, 745 (S.D.1984) (the elected representatives of our citizens exercise the peoples’ inherent political power and the Legislature exercises the peoples’ will in enacting a provision).

[¶ 26.] Second, Breck’s contentions over lack of public input and participation in deliberations are meritless as demonstrated by the fact that Breck herself appeared and testified before the Senate and the House during the special legislative session while those bodies were assembled as a joint committee of the whole to consider the sale of the Cement Plant. Sen. Journ. 14-15, 75th Leg., 2000 Spec.Sess. (S.D.2000) & Hse.Journ. 11, 75th Leg., 2000 Spec.Sess. (S.D.2000). This access was actually greater than normal citizen participation in the legislative process which is ordinarily limited to testimony before individual legislative committees or lobbying individual legislators.

[¶ 27.] Third, we reject Breck’s argument of a lack of public knowledge about the sale of the Cement Plant. In that regard, we take judicial notice of the extensive news and media coverage of the sale before, during and after the Legislature’s special session. See Amador .Val. Joint Union H. Sch. Dist., Etc., 22 Cal.3d 208, 583 P.2d 1281,1291,149 Cal.Rptr. 239, 249 (1978)(court may take judicial notice of massive advance publicity and public discussion surrounding initiated constitutional amendment). See also Sioux Falls Argus Leader v. Miller, 2000 SD 63, ¶ 24, 610 N.W.2d 76, 87 (in entering “pretrial gag order” in child abuse prosecution the circuit court properly took judicial notice of extensive pretrial publicity including newspaper, radio and television coverage).

[¶ 28.] Breck does accurately state that the Governor kept certain details of the sale of the Cement Plant from all but the legislative leadership. However, she again fails to cite any particular provision of law violated by his action. Further, the Governor was direct and explicit about the need for confidentiality concerning certain particulars of the sale from the very opening of the special session and, during his opening address, he explained his reasons for keeping certain matters confidential. While Breck contends “there is no reason a public contract should be treated in the same manner as national intelligence information,” she also cannot ignore that the State was engaged in negotiations to sell a multi-million dollar business that would normally function as a private or corporate enterprise. Surely if IBM and Microsoft find confidentiality necessary in certain business transactions, the State’s need for some modicum of confidentiality while operating in a similar arena is hardly startling.

[¶ 29.] In Community Bankers Ass’n, supra, a group of plaintiffs challenged the constitutionality of a legislative act on the basis that the Legislature violated the Bill of Rights in its enactment. The challenge involved various contentions about the democratic process similar to those Breck raises here. In rejecting those contentions, this Court noted:

Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.

Community Bankers Ass’n, 346 N.W.2d at 745 (quoting Bi-Metallic Inv. Co. v. Colorado Bd. of Equal, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372, 375 (1915)). Much the same is true here. The people’s rights and interests in the Cement Plant are protected by their power over the Legislature responsible for making a decision about its sale. If individual legislators felt ill prepared to make that decision or found some deficiency in the information they were provided on which to base it, they had the simple option of voting against it. This they did not do. Rather, they approved the sale by a wide majority. The wisdom of that decision is not an appropriate subject for this Court’s review. See Community Bankers Ass’n, supra (this Court will not look into the motives, wisdom or haste connected with the passage of statutes). Ultimately, if the people disagree with the sale, are dissatisfied with it and disapprove of those who made it, they may register their discontent by their control over those individuals at the polls. See id. (disagreement with public policy and disapproval of officials’ responsiveness is to be registered principally at the polls). This is the heart of the democratic process.

[¶ 30.] SDCL 1-1-23 states that the sovereign power of this state, otherwise known as its public policy, is expressed in part by “statutes enacted by the Legislature!.]” Veeder v. Kennedy, 1999 SD 23, ¶ 23, 589 N.W.2d 610, 616. Although Breck cites none, even if there were some form of common law authority supportive of her position, under SDCL 1-1-23 it is abrogated by legislative enactments discussed herein. Id.

[¶ 31.] Based upon the foregoing, we find no violation of public policy in the manner in which the sale of the Cement Plant has been conducted.

ISSUE FOUR

[¶ 32.] Did the Legislature improperly attach emergency clauses to the three bills approving the sale of the Cement Plant?

[¶ 33.] Under S.D. Const.Art. III, § 1, the people reserve to themselves the right to require laws enacted by the Legislature to be referred for a public vote before going into effect unless the laws are “necessary for the immediate preservation of the public peace, health or safety, [or for the] support of the state government and its existing public institutions.” See also State v. Larson, 81 S.D. 540, 138 N.W.2d 1 (1965). Under S.D. Const.Art. III, § 22, laws enacted by the Legislature do not take effect until ninety days after the session in which they are passed unless the Legislature, by a two-thirds vote of all members in each House, declares an emergency to exist and directs an earlier effective date. See also (framing v. Zellmer, 291 N.W.2d 751, 757 (S.D.1980). During its special session, the Legislature, by a two-thirds vote, attached emergency clauses to each of the three bills it passed. It declared them necessary for the immediate preservation of the public peace, health or safety or for the support of state government and its institutions. It declared an emergency to exist and required that they take effect upon passage and approval. Breck argues that the attachment of these emergency clauses was improper and that the people have been deprived of their opportunity to refer these acts for a public vote.

[¶ 34.] The principles by which 'we review such contentions were detailed by this Court in Larson, supra and summarized and reinforced in Gravn-ing, 291 N.W.2d at 757-758:

Whether an act falls within one of the two classes of laws that are excepted from the referendum by art. Ill, § 1 is a matter subject to judicial review. Whether an emergency exists within the meaning of art. Ill, § 22 is a matter solely for the Legislature to decide, however, so long as the law to which the emergency clause is attached in fact falls within one of the two excepted classes.
* * ⅜
This court in determining whether a law is necessary for the support of the state government and its existing institutions will consider the effect upon such support of delay incident to referral and the consequences if the law is defeated. If the efficient operation of the state government would be unaffected by the delay or possible defeat, the law in such instance cannot be said to be necessary so as to prevent a referral.
While this court must give to the action of the legislature every favorable presumption, the mere fact that a statute is for the support of the state government will not preclude judicial review of the question whether the act is “necessary” for such support. This court, however, will not enter upon an ascertainment of facts through formal proof by sworn witnesses and authenticated documents to determine necessity of a statute for the support of the state government. The scope of the review is limited to what appears upon the face of the act and facts within the court’s judicial knowledge.
In order that this court may be justified in declaring that the act in question is not necessary for the support of the state government and its existing institutions and therefore subject to referendum it must at least appear from facts of which we may judicially notice that the conclusion is not reasonably disputable ... ‘When it appears from the information at hand that the facts are such as to render the conclusion to be drawn therefrom fairly debatable, the matter is for the determination of the Legislature and the court may not set up its judgment against a legislative determination.”
* * *
We must give to the legislative determination that the law in question is necessary every favorable presumption. As ordinarily considered the existence of a rational basis for a legislative judgment of necessity is dependent upon facts within the sphere of judicial notice at the time of enactment.
In reviewing the question of the necessity of the support provided by the act in question, we must presume that the Legislature availed itself of the opportunity to determine the facts when it made its determination that the act was necessary for the support of state government and its existing public institutions, (citations omitted) (emphasis added).

[¶ 35.] In addition to the foregoing, we note that this Court has twice observed that “necessity” in terms of whether a law is necessary for the support of state government and existing institutions not only means securing additional revenue, but also means “maintaining existing amounts and ... preventing a shriveling of present sources of revenue.” Larson, 81 S.D. at 547, 138 N.W.2d at 5. See also State v. Morrison, 61 S.D. 344, 347, 249 N.W. 563, 564-565 (1933). The Governor presented just such a case here. In his address at the opening of the special session, the Governor provided numerous facts, figures, charts and graphs in support of his argument that, despite solid profits in recent years, changing market forces and the slowing economy as well as mounting concentration and competition in the cement industry pose significant threats to the continued viability and profitability of the Cement Plant. The entire focus of his message was that the expeditious sale of the Cement Plant and the investment of the proceeds was necessary to sustain the income of State Government at current levels and to prevent a financial decline.

[¶ 36.] We need not repeat the details of the Governor’s address here. It is not our function in this review to evaluate the merits of his arguments, determine their accuracy or to assess the soundness of his business determinations, judgments and conclusions. See Gravning, 291 N.W.2d at 757 (this Court will not enter upon an ascertainment of facts through formal proof to determine the necessity of a statute for the support of state government). These were matters for legislators to consider in their debate and in their decision-making process over the sale of the Cement Plant. It is simply our, function to determine if the arguments and information provided by the Governor and considered by the Legislature were sufficient to raise a “fair debate” over the necessity of the sale. See id. (where facts are such as to render the conclusion to be drawn fairly debatable, the issue of necessity is for determination by the Legislature). Clearly in this instance they were. Therefore, we will not set up our judgment against the ultimate legislative determination that the sale of the Cement Plant is necessary for the support of state government and its existing public institutions. See id. We find no impropriety in this legislative determination and, therefore, can find no impropriety in the Legislature’s attachment of emergency clauses to the bills effecting the sale. See Gravning, supra (whether emergency exists under Article III, § 22 is a matter solely for the Legislature to decide so long as law to which emergency clause is attached is in one of the classes excepted from the referendum process by Article III, § I).

[¶ 37.] As a final matter, the defendants and intervenors raise contentions over a cost issue previously raised by Breck before the trial court and mentioned in her notice of appeal. Since the trial court did not resolve the issue and because the issue has not been further briefed or argued by Breck on appeal, we decline to address it.

[¶ 38.] Affirmed.

[¶ 39.] MILLER, C.J., KONENKAMP, J., and RUSCH, C.J., concur.

[¶ 40.] AMUNDSON, J., concurs in part and dissents in part.

[¶ 41.] RUSCH, C.J. for SABERS, J., disqualified.

AMUNDSON, Justice

(concurring in part, dissenting in part).

[¶ 42.] I concur on issues 1, 2 and 3. I, however, part company with the majority as to issue 4. Although I agree that the sale of the cement plant will probably benefit the State, I cannot disregard my solemn duty to interpret our state constitution. As stated by Justice Biegelmeier in his dissent in State v. Jorgenson, 81 S.D. 447,136 N.W.2d 870, 881 (1965),

It is not a pleasant duty to examine questions involving the constitutionality of acts of the legislature. The result may be such as necessarily compels a court to declare the acts of a co-ordinate branch of the government of no effect, and the reported cases show with what reluctance courts are compelled to conclusions involving such grave and delicate consequences. Yet a court can no more avoid this than any other duty. So much was said by Kingman, C. J., in Graham v. Horton, 6 Kan. 343 (2nd ed 209). Our duty, therefore, is a responsibility which, as with other departments, we bear with equal fidelity to the people of our state. It is with that frame of mind that this duty is assumed.

[¶ 43.] In examining this record, it is patently clear that the facilitating acts of the Legislature do not go to the immediate support of government. While these acts will certainly assist in the support of government in the future, it cannot be said that the Legislature offered a rational basis for declaring the sale of the cement plant an emergency.

[¶ 44.] The people, under our constitution, have the right to vote on legislation through the referendum process, unless the Legislature has declared an emergency. As this Court stated in State ex rel. Wegner v. Pyle, 55 S.D. 269, 226 N.W. 280, 283 (1929), “[t]here can be no power in the Legislature to conclude by its action a reserved right belonging to the people. To so hold would be to sanction a usurpation of power and make the Legislature supreme.... If it is necessary, the voters can adopt it.” Without a showing of an immediate need to declare an emergency to support state government, the people should be able to cast their vote if they are able to obtain sufficient signatures to place the enacted law on the ballot. Although deference is given to legislative acts, such deference does not allow for the circumvention of constitutional provisions in order to expedite a favorable sale of a state asset, which sale has been approved by all members of this Court.

[¶ 45.] Therefore, I respectfully dissent on issue 4.

      . " ‘[CJement is a finely ground manufactured mineral product, usually gray in color. It is mixed with water and sand, gravel, crushed stone, or other aggregates to form concrete, the rock-like substance that is the most widely used construction material in the world.’ ” Reeves, 447 U.S. at 432, 100 S.Ct. at 2275, 65 L.Ed.2d at 248, n. 1 (quoting Portland Cement Association, the U.S. Cement Industry, An Economic Report 5 (2d ed.1978)).

      . Cement was not the only product the State sought to produce in these times. In 1918, amendments were made to the South Dakota Constitution that not only permitted State ownership of a cement plant, but also State electric power enterprises and State coal mines. See Historical Notes to SD ConstArt XIII, §§ 10, 11, 12, 13, 14 & 15.

      .The State Cement Plant is managed and controlled by a seven member commission appointed by the Governor. See SDCL 5-17-2 5 — 17—2 3

      . A determination that an acquisition by eminent domain is for a "public use” is distinguishable from a determination that an acquisition is a "public necessity.” See City of Des Moines v. Hemenway, 73 Wash.2d 130, 437 P.2d 171, 176 (1968). This is not an eminent domain case and, therefore, precedents in that context are not considered here.

      . See SDCL 5-17-15; 5-17-16; 5-17-16.1; 5-17-18; & 5-17-40.

      . We note that the heading is not part of a statute. See Olson v. City of Sioux Falls, 63 S.D. 563, 566, 262 N.W. 85, 87 (1935)(the heading of a statute is inserted for convenience of reference and does not lessen or expand the meaning of a statute).

      . Likewise Breck fails to identify any rules of the Legislature it failed to follow when it met in this special session and enacted the legislation dealing with the sale of the Cement Plant. See generally Rules of the South Dakota Legislature, Seventy-fifth Session (2000).

      . SDCL 2-14-16 states:
      Subject to the provisions of the Constitution and statutes relating to vetoes and the referendum, an act of the Legislature which does not prescribe when it shall take effect, if passed at a regular session, takes effect on the first day of July after its passage and if passed at a special session on the ninety-first day after the final adjournment of such session.


author: CALDWELL, Circuit Judge

text:
    2001 SD 34
    EMPLOYERS MUTUAL CASUALTY COMPANY, INC., Plaintiff and Appellee, v. STATE AUTO INSURANCE, INC., Defendant and Appellant, and American Family Insurance Companies, Inc.; Harold Orr, individually and d/b/a Dale’s Service; Marcia Orr; Roxann Orr; Susan Sigdestad; Rachel Herrick; Christine Benson; and Clark County, State of South Dakota, Defendants.
    No. 21381.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2000.
    Decided March 14, 2001.

      Talbot J. Wieczorek of Gunderson, Palmer, Goodsell & Nelson, Rapid City, SD, Attorneys for plaintiff and appellee Employers Mutual Casualty Company, Inc.
    Robert B. Anderson of May, Adam, Gerdes & Thompson, Pierre, SD, Attorneys for defendant and appellant State Auto Insurance, Inc.
    Thomas M. Tobin of Tonner, Tobin & King, Aberdeen, SD, Attorneys for defendant Rachel Herrick.
    Vincent Purtell of American Family Insurance Companies, Inc., Sioux Falls, SD, Attorneys for defendant American Family Insurance Companies, Inc.
    Roy A. Wise of Richardson, Groseclose, Wyly, Wise and Sauck, Aberdeen, SD, Attorneys for defendant Clark County South Dakota.
    Lee Schoenbeck of Schoenbeck Law, Watertown, SD, Attorneys for defendant Harold Orr individually and d/b/a Dale’s Service, Marcia Orr, and Roxann Orr.
    Christine Benson, Bristol, SD, Defendant pro se.
    Leon J. Vander Linden of Delaney, Van-der Linden & Delaney, Webster, SD, Attorneys for defendant Susan Sigdestad.
   CALDWELL, Circuit Judge

[¶ 1.] State Auto Insurance, Inc. appeals from a judgment determining that 1) Rox-ann Orr was a named insured under an automobile insurance policy issued to her parents Harold and Marcia Orr, and that 2) State Auto is the primary insurer. We reverse issue 1 and affirm issue 2.

FACTS AND PROCEDURE

[¶ 2.] This action arose from a one-car accident that occurred in rural Clark County on February 14,1998. The vehicle involved was a 1990 Plymouth Acclaim titled in the name of Dale’s Service. This vehicle was part of an inventory of a used ear lot owned by Dale’s Service. Harold and Marcia Orr own Dale’s Service.

[¶ 3.] Roxann Orr, the daughter of Harold and Marcia Orr, picked up the Plymouth Acclaim from the used car lot at Dale’s Service sometime after her shift ended, around 3:00 p.m., on February 14, 1998. In the past, Roxann had often used the car for personal trips. Later that same day, Roxann met with some friends and the decision was made to travel to a dance in Clark. Because Roxann did not know the way to Clark and was uncomfortable driving on gravel roads, she let Christine Benson drive the vehicle. Before they could reach Clark, they were involved in an accident. At the time of the accident, Susan Sigdestad, Rachel Herrick, and Roxann Orr were passengers. Each of the passengers filed personal injury actions against Benson and Clark County.

[¶4.] Orrs insured Dale’s Service with Employers Mutual Casualty Company (Employers). This policy covered the inventory on the car lot. In addition, Orrs had a personal automobile liability policy with State Auto Insurance, Inc. (State Auto). Both policies cover the car in question. American Family Insurance Co. (American Family) provided automobile liability coverage to Benson’s family; Benson was insured pursuant to that policy.

[¶ 5.] Employers commenced this declaratory action alleging that it owed no duty to defend or indemnify Benson in regard to the claims arising from the February 14, 1998 accident. State Auto filed an answer to the complaint and included a counterclaim and separate cross claims alleging that it had no duty to defend or indemnify Benson. State Auto further sought to have American Family declared the primary insurer.

[¶ 6.] Orr’s personal automobile liability provided by State Auto contained a family exclusion clause. State Auto maintains that this clause excluded coverage to Rox-ann Orr, as she was living in the same household with her parents, Harold and Marcia Orr. State Auto did not dispute the claims against Benson asserted by Sigdes-tad and Herrick; Benson became an insured under the policy by driving the car with the permission of the owner.

[¶ 7.] The trial court held that Roxann Orr was a named insured on the State Auto policy and is therefore covered up to $25,000. The court also found that State Auto’s coverage is first, American Family’s coverage is second, and Employers’ last.

[¶ 8.] State Auto appeals two issues from the judgment entered by the circuit court on December 1, 1999. The issues to be decided on appeal are:

Whether the trial court erred in finding coverage for Roxann Orr as a named insured; and
Whether the trial court erred in naming State Auto as primary insurer.

STANDARD OF REVIEW

[¶ 9.] The construction of a written contract is a question of law. Where an insurance policy is susceptible to different interpretations, the interpretation most favorable to the insured must be adopted. The trial court’s construction of an insurance contract is a question of law that is reviewed de novo. The burden of showing no duty is on the insurer. Colonial Ins. Co. of California v. Lundquist, 539 N.W.2d 871, 873 (S.D.1995) (citations omitted).

ANALYSIS

[¶ 10.] Whether the trial court erred in finding coverage for Roxann Orr as a named insured.

[¶ 11.] In 1992 household exclusions were pronounced invalid as a violation of public policy. See De Smet Ins. Co. v. Gibson, 1996 SD 102, ¶ 6, 552 N.W.2d 98, 99 (citing Cimarron Ins. Co. v. Croyle, 479 N.W.2d 881, 884 (S.D.1992)). In response to the decision in Cimarron, the legislature immediately amended South Dakota’s financial responsibility law to allow insurers to issue motor vehicle policies with resident family member exclusions. Id. (citing Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 756 n. 1 (S.D.1994)). That statute, SDCL 32-35-70, now includes a statement which allows a policy to exclude or limit coverage for a relative residing in the named insured’s household.

[¶ 12.] In Cimarron, the family exclusion stated “[w]e do not provide liability coverage for any person for bodily injury to you or any family member.” Cimarron, 479 N.W.2d at 882. In amending the financial responsibility statute it was clear that the legislature intended to overrule the decision in Cimarron and allow family exclusions. See De Smet Ins. Co., 1996 SD 102 at ¶ 7, 552 N.W.2d at 100. To the extent that the exclusion here is similar in wording to the exclusion in Cimarron, it is valid.

[¶ 13.] We look to the wording of the policy to determine coverage. State Auto claims that the trial court erred in finding coverage for Roxann Orr by classifying her as a named insured. The policy contains a family exclusion that states:

We do not provide Liability Coverage for any person: For ‘bodily injury’ to you or any ‘family member.’ However, this exclusion does not apply for ‘bodily injury’ to you to the extent that this coverage provides the limits of liability required by the Financial Responsibility Law of the State of South Dakota.

The definition section goes on to define the term you.

[¶ 14.] Throughout this policy, ‘you’ and ‘your’ refer to:

The ‘named insured’ shown in the Declarations, and The spouse if a resident of the same household.

[¶ 15.] The policy does not define “named insured” so the trial court turned to SDCL 58-23-6(5) for guidance. Under this section, “named insured” is defined as “the individual or individuals designated by name as specifically insured in the policy declaration.” This section was intended to be used with regard to SDCL 58-23-6 to 58-23-8 inclusive. SDCL 58-23-6(5). Statutory authorization for the family exclusion does not fall within those sections and as such it is not binding but merely a guide to the terms used in the policy.

[f 16.] The insurance policy in this case contains similar language to SDCL 58-23-6(5), stating that the named insured is the person shown in the declarations. The declaration page contains a box labeled “Named Insured and Address.” Within that box the names of Harold and Marcia Orr are specifically listed. The trial court found, however, that because Roxann Orr was listed below as a driver, she was also a named insured. This finding is at odds with the named insureds specifically identified, Harold and Marcia Orr. If indeed Roxann was to be a named insured she could easily have been listed in the named insured box, however, she was not. Moreover, the Orr’s other children; Paul and Rachel were also listed as drivers. If in fact they too were named insureds, the family exclusion set out in this policy would have little or no effect.

[¶ 17.] While not addressing the issue of listed drivers, various jurisdictions have dealt with similar factual situations. In Prudential Property & Casualty Co. v. Piotrowski, 149 Ill.App.3d 833, 103 Ill.Dec. 229, 501 N.E.2d 250 (1986), a permissive driver was involved in an accident in which a member of the vehicle owner’s family was a passenger. The family exclusion in the policy stated “[w]e won’t pay, under this part, for any injuries suffered by you or any relatives living in your household. Nor will we defend you in any suits arising from such injuries.” Id., 103 Ill.Dec. 229, 501 N.E.2d at 251, 253. The definition section defined the word “you” as “the person shown as the named insured on the Declarations Page [or Continuation Certificate] of this policy, and your spouse, if he or she lives in your household.” Id., 103 Ill.Dec. 229, 501 N.E.2d at 253. The court found that the definition was clear and unambiguous. Id. Such clauses exclude coverage where a permissive driver injures a member of the car owner’s household in an accident. Id.; Prudential Property and Casualty v. Scott, 161 Ill.App.3d 372, 112 Ill.Dec. 932, 514 N.E.2d 595 (1987) (holding the term “you” does not apply to the named insured’s permissive drivers); State Farm Mut. Auto. Ins. Co. v. Fitzpatrick, 817 S.W.2d 918 (Mo.Ct.App.1991) (25-year-old daughter not covered due to family exclusion).

[¶ 18.] Based on the language of the State Auto policy, Roxann Orr was excluded from coverage and we reverse the trial court on this issue.

[¶ 19.] Whether the trial court erred in naming State Auto as primary insurer.

[¶ 20.] State Auto and Employers both agree that Employers’ coverage should be last in line. The trial court states in conclusion 8:

State Auto and American Family both provide insurance coverage for persons using the vehicle, which coverages shall be primary. As between the two, State Auto insures the vehicle and American Family insures the driver, so State Auto’s coverage is first and American Family’s coverage is second, both of which are followed by the coverage of EMC.

Both the contract and SDCL 58-32^1 place Employers last in line.

[¶ 21.] The order of the first two is disputed. State Auto argues that it should be secondary to American Family. It bases this argument on the language of SDCL 58-23-4. This statute provides in pertinent part:

When an automobile insurance policy is in force for anyone engaged in the business of selling, repairing, servicing, storing, or parking motor vehicles and the person or organization allows the use of a vehicle with or without consideration to any other person or organization and the vehicle is involved in an accident out of which bodily injury or property damage to third persons or damage to the insured vehicle arises, the following automobile insurance policies shall be applicable:
(2) In the event that another automobile insurance policy is in force for the person or organization using the vehicle, any coverage provided by the motor vehicle owner’s automobile insurance policy shall be excess coverage only but limited by the terms of the owner’s applicable automobile insurance policy. The coverages in the policy afforded the person or organization using the vehicle shall be primary.

[¶ 22.] Both parties agree that Dale’s Service qualifies as a business involved in selling, repairing, servicing, storing, or parking motor vehicles. Benson is covered by American Family on her own policy and is also covered under State Auto as a permissive user. Therefore, both of these policies are primary to Employers’ coverage of Dale’s Service. As such, our task is to determine the priority between State Auto and American Family.

[¶ 23.] State Auto argues that since Benson was using the vehicle at the time of the accident, her insurer, American Family, should be primary under the above statute. This statute is inapplicable and does not determine which insurer is primary when the individual driving the vehicle is covered under two separate policies outside the coverage provided to the garage owner. The statute simply provides “[t]he coverages in the policy afforded the person or organization using the vehicle shall be primary.” SDCL 58-23-4. Here, we have two separate companies covering the user of the vehicle. Accordingly, we must turn to the terms of the policies and other relative authority to determine priority.

[¶ 24.] Under South Dakota’s financial responsibility law, insurance companies are required to provide coverage for permissive drivers. SDCL 32-35-68. State Auto admits that Benson was a permissive driver for the purpose of this statute. As such, she must be provided coverage under the policy issued by State Auto. The State Auto policy was purchased by the Orrs to cover the car involved in the accident. State Auto argues, however, that their coverage should be secondary to Benson’s insurance company, American Family, since she was driving the car at the time of the accident.

[¶ 25.] Both the policies of American Family and State Auto include other insurance provisions. The provisions state that each insurer will pay only their share of the loss if there is other applicable insurance. The share is the proportion that their policy bears to the total of all applicable limits. The next part of each policy provides that “any insurance provided under this part for a vehicle you do not own is excess over any other collectible auto liability insurance." By its terms, the vehicle owners are primary if the owner is the driver. In the event a nonowner driver is involved in the collision, as here, the policy declares his coverage secondary. The policy language determines this issue. Benson was driving a vehicle she did not own, which by the terms of her policy, makes coverage provided by American Family secondary. The State Auto policy was covering a vehicle owned by the Orrs and involved in the accident, therefore it is primary.

[¶ 26.] The same interpretation of like insurance clauses is seen in Elrod v. General Casualty Co. of Wisconsin, 1997 SD 90, 566 N.W.2d 482. In Elrod, we reaffirmed two general principles, stating: “[t]here is no pro-rata coverage on non-owned vehicles otherwise insured.” Id. at ¶ 9, 566 N.W.2d at 484 (citation omitted). And furthermore, “[u]ltimately, we reinforce[ ] the general rule ‘that primary liability is placed with the insurer of the owner of the vehicle involved in an accident.’” Id.

[¶ 27.] In Nat’l Farmers Union Property and Casualty Co. v. Bang, 516 N.W.2d 313 (S.D.1994), we recognized significant authority on this point.

In Union Ins. Co. v. Farmland Ins. Co., 389 N.W.2d 820 (S.D.1986) this court reiterated ‘the general rule is that primary liability is placed with the insurer of the owner of the vehicle involved in an accident rather than on the insurer of the operator.’ Id. at 822 (citing 7A Am-Jur2d Automobile Insurance § 434 (1980); 16 Couch on Insurance § 62:60 (rev ed 1983); USF & G v. Safeco Ins. Co. of Am., 522 S.W.2d 809 (Mo.1975)); Georgia Mut. Ins. Co. v. Southern General Ins. Co., 181 Ga.App. 238, 351 S.E.2d 658 (1986) (expressing where policies covered both owner and permissive user, owner’s policy was primary); Home Ins. Co. v. Glens Falls Ins. Co., 675 S.W.2d 486 (Tenn.App.1984) (stating to determine primary carrier, look to the owner of the vehicle permittee was operating); Millers Cas. Ins. Co. v. Briggs, 100 Wash.2d 9, 665 P.2d 887 (1983).

Id. at 319. The trial court was correct in its determination that State Auto was primary over American Family.

[¶ 28.] South Dakota state law mandates coverage for permissive drivers but allows an exclusion from coverage for family members. Roxann was excluded pursuant to the family exclusion as stated in the State Auto policy issued to her parents. Benson is an insured under the State Auto policy pursuant to our financial responsibility laws because she was driving with the permission of the owner. As such, although Roxann’s claim against State Auto is barred, her claims against American Family, as insurer of Benson, are not barred. State Auto, as insurer of the owner of the vehicle involved in the crash, has primary responsibility for the claims of the others involved, followed by American Family and then Employers.

CONCLUSION

[¶ 29.] We reverse the part of the trial court’s judgment holding that Roxann Orr is named insured under the State Auto policy. With regard to the order of coverage, we affirm with regard to Sigdestad and Herrick. However, due to our decision on issue one, Roxann is not covered under the State Auto policy.

[¶ 30] MILLER, Chief Justice, SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

[¶ 31.] CALDWELL, Circuit Judge, for KONENKAMP, Justice, disqualified.

      . American Family did not file a brief in regard to this appeal.

      . State Auto agrees that it should provide coverage for Herrick and Sigdestad because Benson was an insured under the State Auto policy. State Auto only disputes the order in which it was to provide coverage.


author: MILLER, Chief Justice.

text:
    2001 SD 35
    In the Matter of the Application of DORSEY & WHITNEY TRUST COMPANY LLC for Organization Certificate Authorizing a Trust Company to Transact Business at 300 North Dakota Avenue, Sioux Falls, South Dakota.
    Nos. 21623, 21624.
    Supreme Court of South Dakota.
    Argued Jan. 9, 2001.
    Decided March 14, 2001.

      Mark Barnett, Attorney General, Diane Best, Assistant Attorney General, Pierre, SD, Attorneys for appellee South Dakota Banking Commission.
    George N. Manolis, Douglas Kludt of Churchill, Manolis, Freeman, Kludt & Shelton, Huron, SD, Edward J. Pluimer, Minneapolis, MN, Attorneys for appellee Dorsey & Whitney Trust Company.
    Jeremiah D. Murphy, Thomas J. Welk of Boyce, Murphy, McDowell & Greenfield Sioux Falls, SD, Attorneys for appellant.
   MILLER, Chief Justice.

[¶ 1.] This is an appeal from a circuit court affirmance of the South Dakota Banking Commission’s grant of an application to organize and operate a trust company in Sioux Falls, South Dakota. We affirm.

FACTS

[¶ 2.] Dorsey, Whitney, L.L.P., a major law firm in Minneapolis, Minnesota, applied to establish a trust company in South Dakota. First National Bank of Sioux Falls, Rushmore Bank and Trust (Rushmore) and Citicorp Trust South Dakota (Citicorp) objected to Dorsey’s application. First National and Citicorp obtained permission to participate in the administrative proceeding. Citicorp, however, did not participate and has not appealed.

[¶ 3.] The Commission held a contested case hearing at which several witnesses for each party testified and were available for cross-examination. The Commission, by a vote of three to two, approved Dorsey’s application. First National appealed to the circuit court which affirmed.

DECISION

[¶ 4.] 1. The circuit court correctly applied the clearly erroneous standard.

[¶ 5.] The parties dispute the appropriate standard of review. First National contends the circuit court’s clearly erroneous review was error. We discussed the confusing nature of SDCL 1-26-36, which guides an appellate court’s choice of standard of review for an administrative agency decision, in Permann v. Department of Labor, 411 N.W.2d 113, 115-17 (S.D.1987). In Permann, we held that, although our case law and the statute had created confusion over the years, common sense dictates that we review findings of fact under the clearly erroneous standard and questions of law under the de novo standard. Id. at 117 (noting the agency’s superior position to decide factual questions and an appellate court’s superior position to decide legal questions). Additionally, Permann recognized that often review of an administrative agency decision involves mixed questions of law and fact. Id. at 118. When presented with a mixed question, courts apply the clearly erroneous standard if the “analysis is essentially factual, and thus is better decided by the agency or lower court ...,” and the de novo standard when the “resolution requires consideration of underlying principles behind a rule of law....” Rios v. Department of Soc. Servs., 420 N.W.2d 757, 759 (S.D. 1988).

[¶ 6.] This appeal involves a mixed question of law and fact because “ ‘the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether ... the rule of law as applied to the established facts is or is not [favorably satisfied].’ ” Permann, 411 N.W.2d at 118 (citing Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1790 n. 19, 72 L.Ed.2d 66, 80 n. 19 (1982)). Where the analysis turns on the fact finder’s “ ‘experience with the mainsprings of human conduct,’ ” it is essentially a factual question to which we apply the clearly erroneous standard. Id. at 119 (citing United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.1984). If, however, “the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles ...,” we apply the de novo standard. Id. Considering the factual nature of the inquiry made by the Commission and the factual nature of the arguments in the briefs, we determine this mixed question is essentially factual in nature. See Rios, 420 N.W.2d at 759-60 (applying the clearly erroneous standard where the matter turned on the determination of whether statutory requirements were satisfied). Accordingly, the clearly erroneous standard is appropriate, meaning this Court will not reverse unless “we are definitely and firmly convinced a mistake has been made.” Id. at 759 (citing Dakota Harvestore v. South Dakota Dep’t of Revenue, 331 N.W.2d 828, 830 (S.D.1983)).

[¶ 7.] 2. The agency’s decision is not clearly erroneous in light of the entire record.

[¶ 8.] First National contends that the Commission’s findings fail to satisfy SDCL 1-26-25, which requires agencies to provide concise and explicit statements of underlying facts to support findings which are couched in statutory language. First National also argues that Dorsey failed to favorably satisfy the four factors contained in SDCL 51A-6A-5, which provides:

Upon the filing of an application with the commission, the director shall make a careful examination and investigation concerning the following conditions:
(1) The financial standing, general business experience, and character of the organizers and incorporators;
(2) The character, qualifications, and experience of the officers of the proposed trust company;
(3) The public need for the proposed trust company in the community where the trust company has proposed to locate and whether existing banks or trust companies are meeting the need; and
(4) The prospects for success of the proposed trust company.
If the commission determines any of these conditions unfavorable to the applicants, the application shall be disapproved, but if not, then the application shall be approved.

At oral argument, both parties contended that the “public need” criterion in SDCL 51A-6A-5 was pivotal in this case. As this is our first occasion to examine this statute, and since the statute does not define the term, we must look to South Dakota’s banking application case law for guidance.

[¶ 9.] Our legislature purposefully gave the South Dakota Banking Commission a great deal of discretion in deciding factual questions because the commissioners are individuals with specialized knowledge of the banking and trust industries whose judgment and insight in these specialized fields facilitate the admittance and overall regulation of these industries. Valley State Bank v. Farmers State Bank, 87 S.D. 614, 625, 213 N.W.2d 459, 465 (1973) (citing Affiliated Distillers Brands Corp. v. Gillis, 81 S.D. 44, 48, 130 N.W.2d 597, 599 (1964)); see Wall v. Fenner, 76 S.D. 252, 256, 76 N.W.2d 722, 724 (1956). It would be impractical for the legislature to attempt to perform the functions it delegated to the commission. Wall, 76 S.D. at 256, 76 N.W.2d at 724. The commission’s discretion, however,’ is not absolute. Id. It must base its actions on factual determinations limited to the factors enumerated in the statute. Id.

[¶ 10.] We have previously stated, “[t]he overriding purpose of our banking laws is the protection and security of a bank’s depositors and creditors.” Application of American State Bank, 254 N.W.2d 151, 153 (S.D.1977). Similarly, the legislature intended to protect the participants in the trust industry by ensuring the “creation and maintenance of adequate and sound [trust] facilities and services.” Wall, 76 S.D. at 258, 76 N.W.2d at 725. Although this Court has never addressed the “public need” factor in the trust industry context, we have addressed the similar phrase “public convenience and necessity” in the banking context.

[¶ 11.] In Application of American State Bank, we stated in connection with public necessity, that “ ‘[t]he banking laws are regulatory in nature, enacted for the protection of the public and are in no way designed to give exclusive benefits to institutions which have been granted a license to conduct the business of banking.’ ” 254 N.W.2d at 153. We further stated in that context, “ ‘[w]hile the adequacy of existing facilities must be considered, the mere fact that existing facilities are adequate does not mean that justification for another bank may not exist.’ ” Id. Given the similar aim and nature of the legislation governing banking and trusts, the principles expressed in our banking application case law apply with equal force, where appropriate, in the trust company creation context.

[¶ 12.] The Commission entered twelve findings of fact and nine conclusions of law. Findings of Fact V, VII and VIII are couched in the language of SDCL 51A-6A-5. The remaining Findings lend support to V, VII and VIII by providing concise and explicit statements of underlying facts. (Initially, State Banking Director Richard Duncan examined the application by verifying the numbers contained therein.) While the Commission’s findings may be minimal, they are adequate under SDCL 1-26-25 and are supported in the record.

[¶ 13.] As stated above, the parties contend the public need criterion is the main point of contention. Findings of Fact VI, VIII, IX and X relate to that factor and state:

VI. The owners and organizers of the Applicant have had a long standing fiduciary relationship with the grantors and beneficiaries of the trusts that Applicant anticipates handling as trustee, these grantors and beneficiaries desire to continue this long term fiduciary relationship with Applicant for their trust needs and no existing trust company can meet these desired needs.
VIII. There exists a public need for the proposed Trust Company in the Sioux Falls community where the Applicant has proposed to locate which can not be met by banks or existing trust companies because of the long standing individual fiduciary relationships of the owners and organizers of the Applicant.
IX. The owners and organizers of the Applicant intend to formalize their present individual trust relationships with their clients and maké available to their clients the benefits of the favorable laws of the State of South Dakota.
X. The Applicant does not intend to solicit business in South Dakota, it intends to serve existing trust relationships of the owners and organizers of the Applicant and those clients who request the services of the Applicant.

Dorsey produced one witness, a partner in the firm, to testify on behalf of the firm at the hearing. When questioned about the public need factor, he testified that Dorsey had long term relationships with its clients in the trust context. He further testified that other partners involved with trusts indicated in an informal survey that their clients would be interested in using a Dorsey trust company located in and offering the advantages of South Dakota law.

[¶ 14.] First National argues that Dorsey construes the term “community” contained in the public need factor too broadly. We disagree. SDCL 51A-6A-3, which is in the trust company creation chapter, purposefully enlarged the definition of community stating in pertinent part, “community shall be broadly construed and shall include geographic or market based parameters, or both.” Given the legislature’s mandate to construe “community” broadly and the inclusion of market based parameters, we cannot say we are definitely and firmly convinced the commission erred. The Commission accepted Dorsey’s argument that they will be filling a public need via a specialized market, namely current trust clients who wish to enjoy the benefits of South Dakota law and continue the long-term relationship with Dorsey. The record supports the Commission’s decision.

[¶ 15.] First National points out that Dorsey will occupy a double fiduciary duty to its clients. It calls on this Court to decide if we want to permit double fiduciary duties in South Dakota as a matter of public policy. Although First National points out the double fiduciary position Dorsey will occupy, they do little to indicate what problems this might cause. Obviously, there is potential for peril when a person occupies two separate duties calling for the utmost care, but Dorsey testified they understood the position they would occupy and are preparing disclosure documents to inform their clients of any potential problems. This fulfils Dorsey’s duty to its client, and a majority on the Commission did not see a problem under the facts of this application with Dorsey’s resolution to make appropriate disclosures to its clients. No error is shown.

[¶ 16.] Dorsey had the burden to prove by a preponderance of the evidence that they satisfied the four factors. Although the evidence is admittedly slim, especially as to public need, the Commission in proper exercise of its discretion accepted it as satisfying the four factors. Additionally, the testimony largely showed that First National was concerned with future competition by Dorsey and was objecting to Dorsey’s application to protect their competitive interest. Direct and cross-examination occurred and the Commission considered that testimony along with the. documentary evidence in making its determination. We are not definitely and firmly convinced, in view of the entire record, that the Commission erred in finding Dorsey favorably satisfied the four factors in SDCL 51A-6A-5. First National, as appellant, has failed to show that it has suffered the prejudice of any substantial rights as required under SDCL 1-26-36 to justify the reversal for which it prays.

[¶ 17.] 3. The circuit court’s refusal to take judicial notice of Director Duncan’s affidavit was not an abuse of discretion.

[¶ 18.] Dorsey attempted to have the circuit court take judicial notice of an affidavit prepared by Director Duncan. Dorsey argues that the circuit court erred in refusing to take judicial notice of the affidavit because the information it contained was readily verifiable in the public record. The affidavit discussed the trust company applications decided prior to Dorsey’s.

[¶ 19.] SDCL 19-10 deals exclusively with judicial notice of adjudicative facts. SDCL 19-10-1; Nase v. Christensen, 409 N.W.2d 131, 132 (S.D.1987). SDCL 19-10 closely tracks Federal Rule of Evidence 201. Nase, 409 N.W.2d at 132. Adjudicative facts are those which relate to the immediate parties involved— the who, what, when, where and why as between the parties. FedREvid 201 advisory committee’s notes. They are the facts to which the law is applied. Id. Director Duncan’s affidavit was not before the Commission and the subject matter of his affidavit dealt mostly with the history of trust company applications over the last four years, not with First National or Dorsey. Dorsey has not shown that the circuit court erred in refusing to judicially notice the affidavit. No abuse of discretion is shown.

[¶ 20.] Affirmed.

[¶ 21.] SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, JJ., concur.

       Two commissioners dissented to granting Dorsey a license. These dissenters, however, did not detail their reasons for dissenting either on the record or in writing. This makes meaningful appellate review difficult. In the future, we suggest the Commission create a more developed record to assist in our review on appeal.