#27976, #27993-r-JMK

2018 S.D. 7

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

GARY LIPPOLD and JANE MURPHY,

and THE CITY OF STURGIS, a

South Dakota Municipal Corporation, Appellees,

v.

MEADE COUNTY BOARD OF

COMMISSIONERS, ALAN AKER,

ROBERT BERTOLOTTO, ROBERT

HEIDGERKEN, GALEN NEIDERWERDER,

and LINDA RAUSCH, Appellants,

and

BUFFALO CHIP CAMPGROUND, LLC, Intervenor and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

MEADE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JEROME A. ECKRICH, III

Retired Judge

* * * *

MARK F. MARSHALL of

Bangs, McCullen, Butler,

 Foye & Simmons, LLP

Rapid City, South Dakota Attorneys for appellees Gary 

Lippold and Jane Murphy.

GREGORY J. BARNIER

Sturgis City Attorney

Sturgis, South Dakota Attorney for appellee City of 

Sturgis.

* * * * 

ARGUED ON APRIL 25, 2017 

OPINION FILED 01/24/18
JACK H. HIEB

ZACHARY W. PETERSON of

Richardson, Wyly, Wise,

 Sauck & Hieb, LLP

Aberdeen, South Dakota Attorneys for appellants Meade 

County Board of 

Commissioners, Alan Aker, 

Robert Bertolotto, Robert 

Heidgerken, Galen 

Neiderwerder, & Linda Rausch.

KENT R. HAGG

JOHN STANTON DORSEY of

Whiting, Hagg, Hagg,

 Dorsey & Hagg, LLP

Rapid City, South Dakota Attorneys for appellant Buffalo 

Chip Campground, LLC.

THOMAS H. FRIEBERG

Frieberg, Nelson & Ask, LLP

Beresford, South Dakota Attorneys for amicus South 

Dakota Municipal League.
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KERN, Justice 

[¶1.] The City of Sturgis, Gary Lippold, and Jane Murphy appealed the 

order of the Meade County Board of County Commissioners approving incorporation

of the proposed municipality of Buffalo Chip City, South Dakota, and setting an 

election for voters to decide whether to assent to incorporation. The circuit court 

denied a request to stay the election. After the election, the court heard the appeal 

pursuant to SDCL 7-8-27 and issued a judgment declaring that the Board’s order 

was invalid, that the election was a nullity, and that consequently, Buffalo Chip 

City was void. The Board and Buffalo Chip Campground, LLC (Campground), an 

intervenor, appeal the circuit court’s judgment. We reverse the circuit court and 

vacate its judgment.

Facts and Procedural History

[¶2.] This case began with an attempt by area residents affiliated with the 

Campground to incorporate a new city in western South Dakota near the city of 

Sturgis, home of the famous Sturgis Motorcycle Rally.1 This event draws hundreds 

of thousands of motorcycle enthusiasts to Sturgis each year and usually occurs

during the first full week of August. On February 11, 2015, twenty-six Meade 

County residents submitted a petition for the municipal incorporation of Buffalo 

Chip City to the Board. They withdrew the petition, however, when they discovered 

the boundary for the proposed city was impermissibly close to Sturgis. SDCL 9-3-

1.1 requires the boundary for a proposed city to be no closer than three miles from 

the perimeter of any existing city. 

 

1. Both Sturgis and Buffalo Chip City are located within Meade County.
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[¶3.] On February 20, 2015, seventeen Meade County residents submitted a 

new petition for the municipal incorporation of Buffalo Chip City to the Board. The 

new proposed boundary for Buffalo Chip City was more than three miles away from 

Sturgis. The petitioners also filed a survey and map of the proposed city, which 

were verified by an affidavit of the surveyor. Additionally, petitioners filed a census 

for organization of the new city listing landowners and voters within the proposed 

territory. The February 20 petition, however, contained a discrepancy between the 

written legal description of the proposed boundary and the official map depicting 

the proposed boundary. 

[¶4.] A few hours after the February 20 petition was filed, the Sturgis City 

Council passed a resolution to annex the Sturgis Municipal Airport, invoking an 

emergency provision under SDCL 9-19-13 that allowed the resolution to take effect 

immediately. The council based its use of the emergency provision on the need to 

preserve the health and welfare of its citizens. On February 23, 2015, Sturgis filed 

the airport annexation resolution with the Board. However, the Board considered 

the annexation invalid, concluding that use of the emergency provision was 

improper and that the filing lacked an accurate map of the annexed territory. 

Further, the Board determined that the petitions to incorporate Buffalo Chip City 

had priority because they were filed first. No party, however, has challenged the 

validity of the annexation in a court of law. 

[¶5.] On February 26, 2015, seventeen Meade County residents filed two 

documents with the Board: an amended version of the February 20 petition and a 

“new” petition for incorporation of Buffalo Chip City. The petitioners corrected the 

discrepancy between the description and the map in both petitions. On February 
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27, 2015, the Board held a public hearing and spent several hours listening to 

testimony and discussing the petitions. Concluding the petitioners had satisfied the 

requirements of SDCL chapter 9-3, the Board voted 3–2 to grant the amended 

petition. Specifically, the Board found that the proposed area of incorporation had 

more than thirty2 voters as required by SDCL 9-3-1 and that more than a quarter of 

the voters signed the amended petition in satisfaction of SDCL 9-3-5. Pursuant to 

SDCL 9-3-6, the Board ordered the incorporation of Buffalo Chip City and scheduled 

an election on May 7, 2015, for voters to decide whether to assent to incorporation. 

Petitioners withdrew the “new” petition in light of the fact that the Board granted 

the amended petition. 

[¶6.] On March 27, 2015, Lippold, Murphy, and several other Meade County 

residents asked the Meade County State’s Attorney to appeal the Board’s decision 

ordering the incorporation of Buffalo Chip City and setting an election on the 

matter. The Meade County State’s Attorney declined to appeal. 

[¶7.] On March 31, 2015, Lippold and Murphy appealed the Board’s order to 

the circuit court as persons aggrieved by the Board’s decision under SDCL 7-8-27. 

Sturgis also appealed the decision. On April 20, 2015, the Campground moved to 

intervene.3 Shortly thereafter, the circuit court consolidated the cases.

[¶8.] On April 29, 2015, Sturgis filed a motion to stay the election and 

requested a hearing before the circuit court. On May 1, 2015, the circuit court held 

a teleconference with Sturgis’s attorney and counsel for the Board. The circuit court 

 

2. The Legislature amended SDCL 9-3-1 in 2016, increasing the requirement 

from thirty voters to forty-five. 2016 Sess. Laws ch. 48, § 1.

3. All parties stipulated to the intervention, and on June 10, 2015, the circuit 

court granted the Campground’s motion to intervene.
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denied the motion for a stay, believing it could afford complete relief to Sturgis even 

after the election and formal incorporation of Buffalo Chip City if the Board’s 

decision were later reversed. Sturgis did not cite SDCL 9-3-20 in its motion to stay 

the election. SDCL 9-3-20 provides that “[t]he regularity of the organization of any 

acting municipality shall be inquired into only in an action or proceeding instituted 

by or on behalf of the state.” 

[¶9.] On May 7, 2015, the election occurred as scheduled, and a majority of 

the voters chose to incorporate Buffalo Chip City. On May 13, the Board declared 

Buffalo Chip City formally incorporated pursuant to SDCL 9-3-12. On May 20, the 

Board filed Buffalo Chip City’s Articles of Municipal Incorporation with the South 

Dakota Secretary of State. 

[¶10.] On January 11, 2016, the South Dakota Municipal League moved to 

intervene in the suit. On March 4, 2016, the circuit court denied the motion but 

permitted the Municipal League to file an amicus brief.4

[¶11.] The Campground moved to dismiss the appeal for a lack of subjectmatter jurisdiction, arguing that the Board’s order was not an appealable decision 

and that Sturgis, Lippold, and Murphy lacked standing because they were not 

persons aggrieved per SDCL 7-8-27. Additionally, the Campground argued they 

lacked standing because SDCL 9-3-20 provides that only the State of South Dakota 

or those acting on its behalf may challenge the regularity of the organization of a 

municipality once it is incorporated. On March 28, 2016, the circuit court denied 

the motion. 

 

4. The Municipal League also filed an amicus brief with this Court in the 

current appeal.
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[¶12.] Sturgis, Lippold, and Murphy next sought summary judgment on the 

grounds that the petitioners failed to comply with the requirements of SDCL 

chapter 9-3. They alleged that none of the residents who signed the petition and 

none of the voters on the filed census who claimed to be residents actually lived 

within the boundaries of the proposed city. In response, the Board moved for 

partial summary judgment, arguing it had no duty to investigate the residency of 

the individual voters who signed the petitions. The circuit court denied both 

motions.

[¶13.] On April 6, 2016, James Walczak, Buffalo Chip City’s finance officer, 

filed an affidavit on behalf of Buffalo Chip City seeking a writ of prohibition from 

this Court. Buffalo Chip City petitioned this Court to prevent the circuit court 

“from continuing to assert jurisdiction over the subject matter of the action,” 

contending that SDCL 9-3-20 permits only the State or parties on the State’s behalf 

to challenge the regularity of the organization of an acting municipality. On April 

12, 2016, this Court issued an order denying the application for writ of prohibition. 

[¶14.] On May 11, 2016, the circuit court held a one-day bench trial. Lippold 

and Walczak testified in addition to Kirk Chaffee, the Meade County Director of 

Planning, and Fay Bueno, a finance officer for Sturgis. On May 20, the court issued 

a written opinion, and on August 24, the court issued detailed findings of fact, 

conclusions of law, and a judgment reversing the Board’s February 27, 2015 order 

incorporating Buffalo Chip City and scheduling an election. 

[¶15.] In reversing the Board’s decision, the court found serious deficiencies 

in the filings as well as errors in the Board’s procedural process. The court found 

the “lots” listed as residences on the incorporation documents were mere patches of 
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dirt, which were unoccupied except during the Sturgis Motorcycle Rally. Further, 

the court found the amended petition and census for incorporating the proposed 

Buffalo Chip City was “rife with false information.” The court concluded: (1) that 

the amended petition was not properly filed with the Meade County Auditor; (2) 

that the area to be incorporated “contained less than one hundred (100) legal 

residents and contained less than thirty (30) legally registered voters” as required 

by SDCL 9-3-1; (3) that the amended petition was signed by less than a quarter of 

the qualified voters as required by SDCL 9-3-5; (4) that petitioners provided legally 

inadequate notice of the amended petitions for the municipal incorporation of 

Buffalo Chip City, South Dakota, and supporting documents before the February 

27, 2015 meeting date; (5) that the Board did not provide adequate legal notice of its 

intent to consider the amended petition for municipal incorporation at its special 

meeting on February 27, 2015; and (6) that the amended petition and census were 

inaccurate, contained false information, and failed to comply with the requirements 

of SDCL chapter 9-3. As part of the August 24, 2016 judgment, the circuit court 

declared the Board’s February 27, 2015 decision a nullity and ordered that “all 

actions o[f] any kind or character undertaken by the Town of Buffalo Chip, SD are 

void ab initio.” 

[¶16.] The Board and the Campground (Appellants) appealed the circuit 

court’s judgment, raising multiple issues for review. Additionally, Sturgis, Lippold, 

and Murphy (Appellees) raised two issues by notice of review. However, we need 

only address whether the court possessed subject-matter jurisdiction because that

issue is dispositive of the case.

Analysis and Decision
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[¶17.] “Subject matter jurisdiction is the power of a court to act such that 

without subject matter jurisdiction any resulting judgment or order is void.” Cable 

v. Union Cty. Bd. of Cty. Comm’rs, 2009 S.D. 59, ¶ 20, 769 N.W.2d 817, 825. 

“Subject matter jurisdiction is conferred solely by constitutional or statutory 

provisions.” Lake Hendricks Improvement Ass’n v. Brookings Cty. Planning & 

Zoning Comm’n, 2016 S.D. 48, ¶ 15, 882 N.W.2d 307, 312. “Furthermore, subject 

matter jurisdiction can neither be conferred on a court, nor denied to a court by the 

acts of the parties or the procedures they employ.” Cable, 2009 S.D. 59, ¶ 20, 769 

N.W.2d at 825. “The test for determining jurisdiction is ordinarily the nature of the 

case, as made by the complaint, and the relief sought.” State v. Phipps, 406 N.W.2d 

146, 148 (S.D. 1987).

[¶18.] Relevant to the existence of subject-matter jurisdiction is the doctrine 

of standing. A litigant must have standing in order to bring a claim in court. Cable, 

2009 S.D. 59, ¶ 21, 769 N.W.2d at 825-26. Although standing is distinct from 

subject-matter jurisdiction, a circuit court may not exercise its subject-matter 

jurisdiction unless the parties have standing. See Lake Hendricks Improvement 

Ass’n, 2016 S.D. 48, ¶ 19, 882 N.W.2d at 313.

[¶19.] SDCL 9-3-20 is broadly written and provides that “[t]he regularity of 

the organization of any acting municipality shall be inquired into only in an action 

or proceeding instituted by or on behalf of the [S]tate.” (Emphasis added.) 

Appellees assert that SDCL 9-3-20 is merely a personal defense for a municipality 

in a lawsuit. However, they cite no authority supporting this proposition, and the 

text of the statute does not conform to such a narrow reading. Rather, SDCL 9-3-20

bars standing to all parties other than the State or persons acting on the State’s 
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behalf in any action or proceeding inquiring into the regularity of the organization 

of any acting municipality. 

[¶20.] In their notice of appeal filed with the circuit court, Appellees directly 

challenged the legality of the Board’s decision to order incorporation of Buffalo Chip 

City. Their proceeding was not “instituted by or on behalf of the state,” as the State 

has taken no role in this litigation. Once Buffalo Chip City became an acting 

municipality—after voters assented to the Board’s incorporation order—SDCL 9-3-

20 deprived Appellees of standing, and the circuit court lost jurisdiction to hear the 

appeal.

[¶21.] This conclusion is supported by common-law precepts regarding de 

facto corporations, by our precedent, and by precedent from other jurisdictions. It is 

well established that

[a]n inquiry into the legal existence of a municipality is in 

general reserved to the state in a proceeding by quo warranto or 

other direct proceeding. With few exceptions, a private person 

cannot ordinarily, either directly or indirectly, usurp this 

function of government. Private individuals, as taxpayers or 

otherwise, cannot maintain an action challenging the legality of 

a municipal corporation nor can they collaterally attack its 

existence where it is at least a de facto corporation.

1 Eugene McQuillin, The Law of Municipal Corporations § 3:107 (3d ed.), Westlaw 

(database updated July 2017) (emphasis added). De facto means “[a]ctual; existing 

in fact; having effect even though not formally or legally recognized.” Black’s Law 

Dictionary (10th ed. 2014). A de facto corporation is “one so defectively created as 

not to be a de jure corporation, but nevertheless the result of a bona [fide] attempt 

to incorporate under existing statutory authority, coupled with the exercise of 

corporate powers, and recognized by the courts as such on the ground of public 

policy in all proceedings except a direct attack by the state questioning its corporate 
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existence.” 1 McQuillin, supra, § 3.103. A de jure corporation stands in contrast to 

a de facto corporation and is “[a] corporation formed in accordance with all 

applicable laws and recognized as a corporation for liability purposes.” Black’s Law 

Dictionary (10th ed. 2014).

[¶22.] We acknowledged the distinction between de facto and de jure 

organizations and the general inability of the public to challenge the existence of a 

de facto organization in Merchants’ National Bank v. McKinney, 2 S.D. 106, 48 N.W. 

841 (1891). In McKinney, we addressed whether certain warrants issued by 

Douglas County and sold to individuals were valid, which required “us to determine 

the validity of the organization of said Douglas [C]ounty.” Id. at 112, 48 N.W. at 

842. Douglas County was “unorganized until the spring of 1881, when a petition 

purporting to be signed by the voters of said Douglas [C]ounty” was presented to the 

governor of the Dakota Territory. Id. at 113, 48 N.W. at 842. The petition failed to 

comply with the requirements for county incorporation, but “[t]he governor, without 

any knowledge . . . that said petition was not what it purported to be” appointed 

several county commissioners. Id. Douglas County became an acting but “illegal 

organization” that “fraudulently issued” warrants, which were eventually sold to 

the aggrieved plaintiffs. Id. at 114, 48 N.W. at 843.

[¶23.] The territorial code at the time, Chapter 21, Code 1877, governed 

county organization and stated in relevant part:

Section 1. Whenever the voters of any unorganized county in 

this territory shall be equal to fifty or upwards, and they shall 

desire to have said county organized, they may petition the 

governor, setting forth that they have the requisite number of 

voters to form a county organization, and request him to appoint 

the officers specified in the next section of this act.

Section 2. Whenever the voters of any unorganized county in 

the territory shall petition the governor, as provided in the 
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preceding section, and the said governor shall be satisfied that 

such county has fifty legal voters, it shall be the duty of the 

governor, and he is hereby authorized, to appoint three persons, 

residents thereof, county commissioners for such county[.]

(Emphasis added.) Under the statute and the governor’s action, Douglas County 

became a “de facto organization.” McKinney, 2 S.D. at 118, 48 N.W. at 844. We 

explained why Douglas County, as a de facto organization, could not be collaterally 

attacked:

The legislature evidently intended to vest in the executive 

authority to organize new counties, and, to prevent questions 

involving the legality of such organizations being raised in a 

collateral proceeding, it intended to make his decision so far 

conclusive as to make such an organization at least a de facto 

organization. It cannot be presumed that the legislature 

intended to leave so important a matter as the organization of a 

new county, as respects the public and third persons, to be 

determined by the courts, years perhaps after the organization of 

such county, and when important rights have been acquired 

under such organization. Can the public be expected to reexamine the proceedings of the governor, ascertain whether or 

not the signatures to the petition are genuine, take a census of 

the county, and ascertain, at its peril, whether or not there 

actually existed the required number of voters in the county to 

authorize the governor to organize it, before it can transact 

business with the county officers of such county? Should the 

public be required to look further than to see that a county 

organization actually exists, with officers performing the duties 

usually performed by county officers of a county? We think not.

Id. at 116-17, 48 N.W. at 844 (emphasis added). Accordingly, we concluded that the 

Douglas County Commissioners “constituted a de facto board” and that the 

warrants they issued were “prima facie valid and binding upon the county.” Id. at 

846.

[¶24.] While we decided McKinney based on the common law, SDCL 9-3-20 is 

a statute enacted by the Legislature. “In applying legislative enactments, we must 

accept them as written. The legislative intent is determined from what the 

legislature said, rather than from what we or others think it should have said.” In 
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re Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D. 1984). SDCL 9-3-20

only permits the State or a person acting on the State’s behalf to inquire into the 

regularity of the organization of any acting municipality, and we will adhere to the 

Legislature’s command.

[¶25.] Further, the facts and legal issues in McKinney are substantively 

similar to the Buffalo Chip City conundrum. The Legislature delegated the 

authority to order the incorporation of proposed municipalities to the Board. 

Petitioners sought to incorporate Buffalo Chip City. The Board found the 

petitioners satisfied the statutory requirements, and the Board ordered 

incorporation and set an election for voters to assent to or reject incorporation. The 

voters assented and Buffalo Chip City became an acting municipality. Because it 

was at least a de facto corporation, its status and actions were “good as to the public 

and third persons.” McKinney, 2 S.D. at 115, 48 N.W.2d at 843. If the circuit court 

had stayed the election, Buffalo Chip City would not have become an acting 

municipality before the court decided the case. But Buffalo Chip City became and 

still is an acting municipality. The evidence established at trial reveals Buffalo 

Chip City is governed by an acting board of sworn trustees and is engaging in acts 

of a municipality, including taking out loans and obtaining licenses and sales-tax 

exemptions. It is at the very least a de facto corporation, and Appellees are barred 

from seeking relief under both McKinney5 and SDCL 9-3-20. 

 

5. We have since affirmed McKinney in the context of de facto officers. State v. 

Escalante, 458 N.W.2d 787 (S.D. 1990); State v. Smejkal, 395 N.W.2d 588 

(S.D. 1986).
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[¶26.] Additionally, many courts have reached the same conclusion that the 

validity of acting municipalities may only be challenged by the state. See, e.g., 

Tulare Irrigation Dist. v. Shepard, 185 U.S. 1, 14, 22 S. Ct. 531, 536, 46 L. Ed. 773 

(1902); Nat’l Life Ins. Co. of Montpelier v. Bd. of Educ. of City of Huron, 62 F. 778, 

787 (8th Cir. 1894); Jefferson v. State, 527 P.2d 37, 41 (Alaska 1974); Stroiney v. 

Crescent Lake Tax Dist., 533 A.2d 208, 210 (Conn. 1987); Bishop v. Shawnee & 

Mission Twps. Turkey Creek Main Sewer Dist. No. 1, Johnson Cty., 336 P.2d 815, 

818 (Kan. 1959); State v. Bailey, 118 N.W. 676, 677-78 (Minn. 1908). Here, it is 

undisputed that Buffalo Chip City is an acting municipality and that Sturgis, 

Lippold, and Murphy are not appealing on behalf of the State of South Dakota. 

Because the appeal from the County’s decision inquired into the regularity of the 

organization of Buffalo Chip City, SDCL 9-3-20 deprived Appellees of standing and 

thus the circuit court of subject-matter jurisdiction. 

[¶27.] Citing our denial of Appellants’ writ of prohibition, Appellees respond 

that even if SDCL 9-3-20 applies, res judicata bars its application.6 While 

acknowledging that “[a] writ of prohibition cannot be invoked merely as a substitute 

 

6. Appellees also argue that this case is not an inquiry into the regularity of the 

organization of Buffalo Chip City. Appellees observe that although “the ghost 

of the town of Buffalo Chip haunts this case, the putative municipality is not 

a party to this action.” They contend that while SDCL 9-3-20 might provide a 

defense for a municipality under scrutiny, here, only the decision of the Board 

is being challenged. However, the circuit court’s decision necessarily involved 

an inquiry into the regularity of the organization of a municipality, and the 

remedy it granted declared the incorporation of Buffalo Chip City void ab 

initio. Further, we recently stated that, at least in cases involving quasijudicial decisions, “[a]ppeals involving county commissioner decisions should 

be taken in the names of the parties whose interests are at stake.” Surat 

Farms, LLC v. Brule Cty. Bd. of Comm’rs, 2017 S.D. 52, ¶ 8 n.2, 901 N.W.2d 

365, 368 n.2. If Buffalo Chip City should have been named in the action, it is 

through no fault of its own that it was not. 
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for an appeal,” S.D. Bd. of Regents v. Heege, 428 N.W.2d 535, 538 (S.D. 1988), 

Appellees observe that prohibition will lie due to a lack of subject-matter 

jurisdiction, see Nelson v. Dickenson, 64 S.D. 456, 459, 268 N.W. 103, 104 (1936). 

Because we denied Buffalo Chip City’s application for a writ of prohibition, 

Appellees claim we conclusively determined the circuit court possessed subjectmatter jurisdiction despite SDCL 9-3-20.

[¶28.] However, res judicata does not bar Appellants’ argument that SDCL 9-

3-20 deprived the circuit court of jurisdiction. The doctrine of res judicata bars an 

issue from being relitigated when four elements are satisfied: 

(1) a final judgment on the merits in an earlier action; (2) the 

question decided in the former action is the same as the one 

decided in the present action; (3) the parties are the same; and 

(4) there was a full and fair opportunity to litigate the issues in 

the prior proceeding.

Farmer v. S.D. Dep’t of Revenue & Regulation, 2010 S.D. 35, ¶ 9, 781 N.W.2d 655, 

659. We construe “the doctrine liberally, unrestricted by technicalities.” Id. ¶ 7. 

“However, because the doctrine bars any subsequent litigation, it should not be used 

to defeat the ends of justice.” Id. “A writ of prohibition is an extraordinary 

remedy.” Cummings v. Mickelson, 495 N.W.2d 493, 495 (S.D. 1993). Other courts 

have stated that generally, an unwritten denial of an application for a writ of 

prohibition does not constitute a decision on the merits. E.g., Kowis v. Howard, 838 

P.2d 250, 253-54 (Cal. 1992) (en banc); Topps v. State, 865 So. 2d 1253, 1258 (Fla. 

2004); State ex rel. Albert v. Adams, 540 S.W.2d 26, 30 (Mo. 1976) (en banc); 

Kennecott Copper Corp. v. Salt Lake Cty., 575 P.2d 705, 708 (Utah 1978). 

[¶29.] Our order denying Buffalo Chip City’s application stated we 

“considered the application and [were] fully advised in the premises[.]” But a short 

statement summarily denying an application does not give the denial preclusive 
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effect. See Kowis, 838 P.2d at 253. “There are many reasons why [this] [C]ourt 

might have acted as it did,” Adams, 540 S.W.2d at 30, and “extraordinary writs may 

be denied for numerous and a variety of reasons, some of which may not be based 

upon the merits of the petition,” Topps, 865 So. 2d at 1257. Therefore, res judicata 

does not prevent us from addressing whether SDCL 9-3-20 deprived Appellees of 

standing and thus the circuit court of subject-matter jurisdiction.

[¶30.] The circuit court erred in denying the motion to dismiss pursuant to 

SDCL 9-3-20. In denying Sturgis’s April 29, 2015 motion to stay, the court believed 

it could still afford complete relief to the parties even if the election occurred. 

However, once the voters decided to incorporate Buffalo Chip City, it became at the 

very least a de facto corporation. At that point, the court lost subject-matter 

jurisdiction. A lack of subject-matter jurisdiction extinguishes appellate review, 

and we are constrained—irrespective of the merits of Appellees’ arguments about 

the invalidity of Buffalo Chip City’s incorporation—to reverse. 

Conclusion

[¶31.] Buffalo Chip City operates at minimum as a de facto corporation, and 

SDCL 9-3-20 requires that any action challenging its incorporation be brought by 

the State. Because Appellees did not bring their suit on behalf of the State, the 

circuit court lacked subject-matter jurisdiction. We reverse and vacate the circuit 

court’s judgment. 

[¶32.] GILBERTSON, Chief Justice, SEVERSON, Justice, and WILBUR and 

MEIERHENRY, Retired Justices, concur.

[¶33.] MEIERHENRY, Retired Justice, sitting for ZINTER, Justice, 

disqualified.
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[¶34.] JENSEN, Justice, not having been a member of the Court at the time 

this action was submitted to the Court, did not participate.