#26683, #26746-aff in pt, rev & rem-SLZ

2014 S.D. 60

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

ERIC D. KOLDA, Plaintiff and Appellant,

v.

CITY OF YANKTON, a municipal

corporation and the YANKTON 

POLICE DEPARTMENT, Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

YANKTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE STEVEN R. JENSEN

Judge

* * * *

TIMOTHY R. WHALEN

Lake Andes, South Dakota Attorney for plaintiff 

and appellant. 

LISA HANSEN MARSO

JASON R. SUTTON of

Boyce, Greenfield, Pashby & Welk, LLP

Sioux Falls, South Dakota Attorneys for defendants 

and appellees.

* * * *

CONSIDERED ON BRIEFS 

ON APRIL 28, 2014

OPINION FILED 08/06/14
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ZINTER, Justice

[¶1.] The City of Yankton (the City) terminated Eric Kolda, a police officer, 

for violating police department policies. Kolda was notified of his termination by 

letter. Kolda appealed to the city manager. Following an evidentiary hearing, the 

city manager found cause for the disciplinary action and upheld the termination. 

Kolda then sued in circuit court, claiming wrongful discharge. On separate motions 

for summary judgment, the circuit court ruled that Kolda could only be terminated 

for cause with notice and the City failed to provide pre-termination notice. A jury

found cause for the termination, precluding Kolda’s claim for damages arising after 

the notice and evidentiary hearing. However, the circuit court awarded Kolda 

procedural due process damages for lost wages that accrued between the time of his 

summary termination and the post-termination evidentiary hearing. Kolda appeals 

the jury verdict finding just cause for the termination; and the City—by notice of 

review—appeals the judgment awarding procedural due process damages. We 

reverse and remand for the circuit court to vacate the award of damages because 

Kolda failed to exhaust his administrative remedies.

Facts and Procedural History

[¶2.] In 1998, Eric Kolda was hired as a jailer by the City, a city-manager 

form of government. In 1999, he was promoted to a police officer position. Kolda’s 

position was the lowest level in the chain of command at the Yankton Police 

Department. 

[¶3.] In 2004, Kolda was suspended for twenty-eight days for violating 

several police department policies. On January 15, 2009, he was terminated for a
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new violation of department policies. Kolda’s 2009 termination is the subject of this 

appeal.

[¶4.] The termination occurred as a result of events that started in the 

spring of 2007. At that time, when both were off duty, a fellow officer told Kolda 

that the fellow officer had stolen a chainsaw. Department policy required Kolda to 

report the theft. However, Kolda did not do so. Later in 2007, Kolda’s fellow officer 

applied for a job with the Nebraska State Patrol, which required a polygraph test. 

The officer told Kolda that he did not get the job because he admitted stealing the 

chainsaw. Kolda still did not report the theft.

[¶5.] Kolda eventually reported the theft in November 2008, which triggered 

an investigation of Kolda’s fellow officer by the Division of Criminal Investigation. 

In January 2009, following the investigation, four of Kolda’s superiors met and 

recommended that Kolda be terminated for his failure to timely report the theft. It 

was noted during this meeting that Kolda’s failure to report the theft violated many 

of the same policies he violated in 2004. 

[¶6.] Kolda was terminated on January 15, 2009, by delivery of a 

termination letter. The letter was prepared and signed by the chief of police. The 

letter indicated that Kolda had a right to appeal his termination to the city 

manager, who was also the City’s grievance officer. Kolda appealed, and an

evidentiary hearing was held on January 29, 2009. At the conclusion of the 

hearing, the city manager upheld Kolda’s termination for cause. Kolda did not 

appeal to the Department of Labor and Regulation. Instead, Kolda sued in circuit 

court, alleging wrongful discharge. 
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[¶7.] The City moved for summary judgment. It argued, in part, that

Kolda’s claim was barred as a matter of law because he failed to exhaust his 

administrative remedies. The City also argued that SDCL 9-10-9 and SDCL 9-10-

13 granted the city manager absolute power to remove Kolda, making him an atwill employee subject to termination without notice and opportunity to be heard. 

Circuit Judge Glen W. Eng denied the motion. 

[¶8.] Judge Eng ruled that Kolda was not an at-will employee. Judge Eng 

first ruled that Kolda was not subject to the unrestricted removal power of the city 

manager because Kolda was not employed in the “administrative service of the 

municipality[.]” See SDCL 9-10-13 (granting the city manager the “power to 

appoint and remove all officers and employees in the administrative service of the 

municipality”). Judge Eng then ruled that Kolda was not an at-will employee 

because the City had adopted an employee handbook that only allowed termination 

for cause. See Hollander v. Douglas Cnty., 2000 S.D. 159, ¶ 14, 620 N.W.2d 181, 

185 (describing the narrow exception to South Dakota’s general at-will status for 

employees “when an employer’s discharge policy provides that termination will 

occur only for cause”). Because Kolda could only be terminated for cause, Judge 

Eng concluded that Kolda “had a property interest sufficient to trigger due process 

protections.” See id. ¶ 16 (“Because [the employee] could only be terminated for 

cause, he had a property interest sufficient to trigger due process protections.”). 

Judge Eng finally concluded that Kolda’s procedural due process rights were 

violated when the City failed to provide pre-termination notice and an opportunity 

to be heard. See id. ¶ 17 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 
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532, 542, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494 (1985)) (“[W]e must ask whether 

[the employee] had notice and an opportunity to be heard, ‘before he was deprived of 

any significant property interest.’”). Judge Eng did not address the City’s other 

arguments because he concluded that “[t]he remaining issues, even if ruled upon in 

the City’s favor, would not entitle the City to judgment as a matter of law in light of 

the court’s finding of a due process violation.”

[¶9.] Following additional motions, Kolda moved for summary judgment. 

The circuit court, Circuit Judge Steven R. Jensen then presiding, granted Kolda’s

motion in part. Like Judge Eng, Judge Jensen ruled that Kolda was not an at-will 

employee, and therefore, he had a protected property interest in his continued 

employment that triggered procedural due process protection. Judge Jensen further 

ruled that the City failed to provide pre-termination due process when it summarily 

terminated Kolda’s employment by the January 15 letter. However, Judge Jensen 

ruled that the January 29 evidentiary hearing provided Kolda with due process. 

Therefore, Judge Jensen ruled that, as a matter of law, Kolda was only entitled to

claim procedural due process damages that accrued between his January 15 

termination and his January 29 hearing. Judge Jensen ruled that Kolda’s claim to 

post-January 29 damages depended on whether there was cause for the 

termination, and that was a question of fact for a jury.

[¶10.] A jury trial was held to determine whether cause existed to terminate 

Kolda. During and after trial, the City moved for a judgment as a matter of law.

The City again argued that Kolda’s claim was barred because he was an at-will 

employee who was subject to termination without notice and cause and he failed to 
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exhaust his administrative remedies. The circuit court denied the City’s motions. 

The jury found that cause existed to terminate Kolda’s employment, and his 

wrongful discharge claim was denied. However, the circuit court ruled that Kolda 

was entitled to procedural due process damages that accrued between his January 

15 summary termination and his January 29 post-termination hearing. The court 

awarded $2,097.93 for wages lost during that period, plus prejudgment interest.

Decision

[¶11.] Because the City's motions for judgment as a matter of law are 

dispositive of all claims, we address the City’s notice of review appealing the circuit 

court’s denial of those motions.1 The City first contends that Kolda was barred from 

recovering any damages because SDCL 9-10-9 granted the city manager absolute 

power to remove police officers, making Kolda an at-will employee. The City points 

out that at-will employees generally have no protected property interest in 

continued employment and therefore no right to due process protections. See 

Hollander, 2000 S.D. 159, ¶ 12, 620 N.W.2d at 185 (citing Loudermill, 470 U.S. at 

538, 105 S. Ct. at 1491) (explaining that whether due process must be given 

“depends in large part on the presence of a property right in continued 

employment”). 

[¶12.] “[I]t is within the exclusive province of the [L]egislature to determine 

terms under which employment may be terminated.” Finck v. City of Tea, 443 

 

1. “This Court reviews both a motion for judgment as a matter of law and a 

renewed motion for judgment as a matter of law for an abuse of discretion.” 

Bertelsen v. Allstate Ins. Co., 2013 S.D. 44, ¶ 16, 833 N.W.2d 545, 554 

(citations omitted). 
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N.W.2d 632, 634 (S.D. 1989). By enacting SDCL 60-4-4, the Legislature “has 

created ‘employment at will’ in this state.”2 Finck, 443 N.W.2d at 634 (citations 

omitted). Finck v. City of Tea recognized that the Legislature had not departed 

from SDCL 60-4-4’s at-will status for appointed officers in aldermanic-governed 

municipalities. See id. at 635. We explained that SDCL 9-14-13 gave “the mayor 

‘full and absolute power to remove appointed officers[,]’” and, in aldermanicgoverned municipalities, the Legislature had not limited that power.3 Id. at 634-35 

(citations omitted). However, Finck did not address the effect of a municipality’s 

personnel policy manual on a mayor’s statutory removal power. We addressed that 

issue in Patterson v. Linn, 2001 S.D. 135, 636 N.W.2d 467.

[¶13.] Patterson rejected an appointed officer’s claim that a municipality’s 

personnel policy—which outlined legal procedures that had to be followed before 

discharging employees—limited the mayor’s statutory removal power. See id. ¶¶ 8, 

11. We explained that “[c]ity policies, like city ordinances, must stay within 

‘reasonably strict’ adherence to their statutory ambit.” Id. ¶ 9 (quoting City of 

 

2. SDCL 60-4-4 provides: “An employment having no specified term may be 

terminated at the will of either party on notice to the other, unless otherwise 

provided by statute.”

3. SDCL 9-14-13, when Finck was decided, provided: 

In an aldermanic-governed city the mayor shall have power 

except as otherwise provided to remove from office any officer 

appointed by him, whenever he shall be of the opinion that the 

interests of the city demand such removal, but he shall report 

the reasons for his removal to the council at its next regular 

meeting.

See Finck, 443 N.W.2d at 634.
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Marion v. Schoenwald, 2001 S.D. 95, ¶ 6, 631 N.W.2d 213, 216). We concluded that 

the municipality’s personnel policy did not adhere to the statutory removal power in 

SDCL 9-14-13. Consequently, to allow the policy to govern would impermissibly

“lead[] to the inconsistent result that a city [could] override the [removal] powers 

conferred upon it by the Legislature.” Id. ¶ 11.

[¶14.] The City argues that under the principles of Finck and Patterson, the 

policies in the City’s employee handbook could not eliminate Kolda’s at-will 

employment status recognized in SDCL 60-4-4. The City acknowledges that unlike

Finck and Patterson, it is a city-manager form of government rather than an 

aldermanic form of government. But the City contends that like the mayors in 

Finck and Patterson, the city manager in this case had the similar absolute power to 

remove Kolda under a similar statute (SDCL 9-10-9), making Kolda an at-will 

employee. The City, however, misconstrues SDCL 9-10-9. 

[¶15.] “[S]tatutes must be construed according to their intent, [and] the

intent must be determined from the statute as a whole, as well as enactments 

relating to the same subject.” Trumm v. Cleaver, 2013 S.D. 85, ¶ 10, 841 N.W.2d 

22, 25 (second alteration in original) (quoting In re Estate of Hamilton, 2012 S.D. 

34, ¶ 7, 814 N.W.2d 141, 143). In this case, unlike Finck and Patterson, two 

different statutes—SDCL 9-10-9 and SDCL 9-10-13—regulate a city manager’s 

removal power. We construe these statutes together.

[¶16.] SDCL 9-10-9 allocates the appointment and removal powers in citymanager municipalities among the governing body, certain municipal officeholders, 

and the city manager. The statute provides:
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The auditor, attorney, library board of trustees, and the 

treasurer shall be appointed by the governing body and may be 

removed at any time by such governing body.

The auditor and the treasurer shall each appoint all deputies 

and employees in his office.

All other officers and employees, including all members of 

boards and commissions, except as otherwise provided by law, 

shall be appointed by the manager and may be removed by him.

The City contends that the Legislature granted the city manager absolute removal 

power through the language of the third sentence. That sentence grants city 

managers the power to appoint and remove “[a]ll . . . officers and employees” not 

removable by the other appointing authorities. See id. However, this appointment 

and removal power is not absolute. It is limited when “otherwise provided by law[.]” 

See id. 

[¶17.] SDCL 9-10-13 is another provision of law, adopted as a part of the 

same act,4 otherwise governing the city manager’s appointment and removal 

powers. That statute specifically limits the city manager’s appointment and 

removal power to the “officers and employees in the administrative service of the 

municipality[.]” SDCL 9-10-13 provides: 

The manager shall be responsible to the governing body for the 

proper administration of all affairs of the first or second class 

municipality placed in his charge. To that end, except as 

otherwise provided by law, he shall have power to appoint and 

remove all officers and employees in the administrative service of 

the municipality and may authorize the head of any department 

or office responsible to him to appoint and remove subordinates 

in such department or office. Appointments made by or under 

the authority of the manager shall be made without definite 

 

4. See 1935 S.D. Sess. Laws ch. 158, §§ 3, 7.
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term on the basis of executive and administrative ability and of 

the training and experience of such appointees in the work 

which they are to perform.

(Emphasis added.) Therefore, SDCL 9-10-13 limits the scope of the city manager’s 

appointment and removal powers granted in SDCL 9-10-9.

[¶18.] This interpretation is supported by two long-standing principles of 

statutory construction. First, SDCL 9-10-9 is the more general statute that 

allocates appointment and removal powers among entities, whereas SDCL 9-10-13 

is a more specific statute that places a limitation on the scope of those powers. 

“‘[S]tatutes of specific application take precedence over statutes of general 

application.’” In re Estate of Hamilton, 2012 S.D. 34, ¶ 12, 814 N.W.2d at 144 

(alteration in original) (quoting Schafer v. Deuel Cnty. Bd. of Comm’rs, 2006 S.D. 

106, ¶ 10, 725 N.W.2d 241, 245). Additionally, if the Legislature intended the

language in SDCL 9-10-9 to exclusively define the scope of a city manager’s 

appointment and removal powers, then the limiting language of SDCL 9-10-13

would be superfluous, rendering it ineffective. However, a statute must “be 

construed so that effect is given to all its provisions, so that no part will be 

inoperative or superfluous, void or insignificant[.]” Wheeler v. Farmers Mut. Ins. 

Co. of Neb., 2012 S.D. 83, ¶ 21, 824 N.W.2d 102, 109 (quoting 2A Norman J. Singer, 

Sutherland Statutory Construction § 46.06, 181-92 (6th ed. 2000)). Accordingly, we 

conclude that notwithstanding the broad appointment and removal powers

allocated to city managers in SDCL 9-10-9, the language in SDCL 9-10-13 limits the 

scope of those powers. 

[¶19.] SDCL 9-10-13 limits a city manager’s removal power to the “officers 

and employees in the administrative service of the municipality[.]” (Emphasis 
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added.) Therefore, as Judge Eng noted, the question is whether Kolda was

employed in the administrative service of the City. 

[¶20.] An administrative position manages the affairs of a department or 

office. Cf. Black’s Law Dictionary (9th ed. 2009) (defining “administration” in 

relevant part as “[t]he management or performance of the executive duties of a 

government, institution, or business” and “[i]n public law, the practical 

management and direction of the executive department and its agencies”); The 

American Heritage College Dictionary 17 (3d ed. 1997) (defining “administration” in 

relevant part as “[t]hose who manage an institution”); Webster’s Third New 

International Dictionary 28 (1976) (defining “administration” in relevant part as the 

“performance of executive duties: Management, direction, superintendence”). 

[¶21.] In this case, Kolda was not responsible for managing the affairs of the 

police department. He was a police officer, a position at the lowest level of the chain 

of command. Because Kolda’s job was not an administrative position, the city 

manager’s removal power under SDCL 9-10-13 did not apply. And because the city 

manager did not have legislatively granted removal power, the policies of the City’s 

employee handbook were not negated under the principles applied in Patterson.

[¶22.] The City’s employee handbook explicitly provided that Kolda could 

only be terminated with notice and for “just cause[.]” Therefore, the narrow 

exception to at-will employment applied. See Hollander, 2000 S.D. 159, ¶ 14, 620 

N.W.2d at 185 (citation omitted) (explaining that this Court has recognized a 

narrow exception to the general at-will status of employees under SDCL 60-4-4 
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“when an employer’s discharge policy provides that termination will occur only for 

cause”).

[¶23.] In sum, Kolda was not an at-will employee. The terms of his 

employment included the terms of the employee handbook, which required that 

termination be preceded by notice and implemented for just cause. We affirm the 

circuit court’s denial of the City’s motions for judgment as a matter of law on the 

issue of Kolda’s employment status. 

[¶24.] The City, however, also argues that the circuit court erred in denying 

its motions for a judgment of matter of law because Kolda failed to exhaust his 

administrative remedies. The City points out that it adopted a grievance procedure 

in the employee handbook, and Kolda used that procedure to appeal his termination 

to the city manager. But the City also points out that Kolda did not appeal the city 

manager’s decision to the Department of Labor and Regulation before suing in 

circuit court. Therefore, the City contends that Kolda’s claim is barred because he 

failed to appeal to the Department and exhaust his administrative remedy before 

suing.

[¶25.] At the time of Kolda’s termination, SDCL 3-18-15.1 required 

municipalities to establish “a procedure which its employees may follow for the 

prompt informal dispositions of their grievances.”5 “If, after following the grievance 

 

5. In 2013, the Legislature enacted SDCL 3-18-15.5, which excluded “employees 

of public subdivisions” from the provisions of SDCL 3-18-15.1 “unless those 

employees [were] members of a public employee union or the governing body 

of a political subdivision [had] adopted an ordinance or resolution 

establishing a grievance procedure for all employees of the political 

subdivision.” See 2013 S.D. Sess. Laws ch 23, § 1. Because Kolda initiated 

(continued . . .)
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procedure enacted by the governing body, the grievance remain[ed] unresolved . . . it 

[could] be appealed to the Department of Labor and Regulation[.]” SDCL 3-18-15.2. 

After a final decision of the Department, an employee could appeal to the circuit 

court. See SDCL 1-26-30.2 (“An appeal shall be allowed in the circuit court to any 

party in a contested case from a final decision, ruling, or action of an agency.”).

[¶26.] In this case, the City handbook upon which Kolda relies for this 

lawsuit included a grievance procedure. The grievance procedure provided “the 

opportunity for all municipal employees to discuss grievances concerning the 

application and interpretation of the provisions of [the City’s] personnel manual.” 

City of Yankton Uniform Personnel Rules and Regulations Manual 79. It further 

required that the procedure “must be followed when an employee has a grievance.” 

Id. The final step of the grievance procedure provided that “[t]he City Manager, 

after [a] hearing, shall render a decision on the employee’s grievance. Decisions of 

the City Manager shall be final and subject to appeal only as provided by State or 

Federal law.” Id. (emphasis added). 

[¶27.] Kolda concedes that he did not appeal to the Department of Labor and 

Regulation as provided in SDCL chapter 3-18. However, Kolda argues that he was 

excused from using the administrative process because he contends that chapter 3-

18 applies only to public unions, not to all public employees. Kolda overlooks the 

definition of “public employee.” 

________________________

(. . . continued)

his action before this enactment, the new provision does not apply in this 

case.
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[¶28.] SDCL 3-18-1 defines a “public employee” as “any person holding a 

position by appointment or employment in the government of the State of South 

Dakota or in the government of any one or more of the political subdivisions thereof 

. . . or any other branch of the public service.” Kolda was a public employee within 

the meaning of chapter 3-18. Unionization of City employees was irrelevant to the 

application of the grievance procedure. 

[¶29.] Kolda also contends that he was pursuing an “appeal” before the city 

manager rather than a grievance. Again, Kolda overlooks definitions in chapter 3-

18. SDCL 3-18-1.1 defines “grievance” to include any alleged violation of any 

agreement, contract, or policy of the City.6 Kolda’s “appeal” before the city manager 

was grounded on the allegation that numerous City policies had been violated.7 

 

6. A “grievance” is defined, in relevant part, as:

a complaint by a public employee . . . based upon an alleged 

violation, misinterpretation, or inequitable application of any 

existing agreements, contracts, ordinances, policies, or rules of 

the government of the State of South Dakota or the government 

of any one or more of the political subdivisions thereof . . . as 

they apply to the conditions of employment.

SDCL 3-18-1.1 (emphasis added).

7. In his complaint, Kolda alleged numerous violations of the City’s personnel 

policies, specifically that: the City “failed to follow the procedures [set forth in 

the City’s employee handbook] for disciplining or terminating an employee”; 

the City “disciplined and terminated [Kolda] . . . without cause and in 

violation of its personnel policies”; “the personnel policies are clearly designed 

to afford every employee . . . procedural . . . due process before they were to be 

disciplined or their employment terminated”; the City “did not apply the 

policies and procedures . . . in the same fashion as they had with other 

employees and thereby violated the terms and conditions of their personnel 

policies[.]” 
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These allegations fit the statutory definition of a grievance.8

[¶30.] In this case, Kolda used the City’s grievance procedure to appeal his 

termination to the city manager. Yet he failed to follow the next step of the

procedure and appeal the city manager’s decision to the Department of Labor and 

Regulation. Therefore, Kolda failed to exhaust his administrative remedies, and the 

circuit court lacked jurisdiction to resolve Kolda’s claims. See Reynolds v. Douglas 

Sch. Dist., 2004 S.D. 129, ¶ 10, 690 N.W.2d 655, 657 (quoting Small v. State, 2003 

S.D. 29, ¶ 16, 659 N.W.2d 15, 18-19 (per curiam)) (“It is a settled rule of judicial 

administration that no one is entitled to judicial relief for a supposed or threatened 

 

8. Kolda contends that reinstatement issues could not be resolved by the 

Department of Labor and Regulation because, under Kierstead v. City of 

Rapid City, 248 N.W.2d 363 (S.D. 1976), reinstatement is an executive 

function over which the Department does not have jurisdiction. We disagree. 

In Kierstead, the lead opinion stated “that under SDCL 3-18-15.2 the Director 

has authority to act only on grievances that do not involve the exercise of an 

executive or legislative power of the governmental agency or the performance 

of a governmental function.” See id. at 366. It then stated that a mayor’s 

absolute power to remove certain employees under SDCL 9-14-13 was an 

executive power. See id. The lead opinion concluded that the administrative 

agency did not have jurisdiction to act on a claim concerning the exercise of 

the mayor’s absolute removal power. See id. at 367. 

We first note that only one member of the Court adopted the foregoing 

conclusion. See id. at 368. We also note that even if the lead opinion had 

been the holding of the Court, that opinion is not applicable in this case. The 

lead opinion involved the jurisdiction of the Department of Labor to consider 

a claim involving a mayor’s absolute removal power in an aldermanicgoverned municipality. See id. at 366. This case involves the city-manager 

form of government, and as previously explained, the city manager did not 

have the absolute statutory power to remove Kolda. Therefore, the lead 

opinion’s language is inapplicable in this case. Cf. Gettysburg Sch. Dist. v. 

Larson, 2001 S.D. 91, ¶ 17, 631 N.W.2d 196, 202 (“Under SDCL 3-18-15.2, the 

[D]epartment [of Labor] has authority to order reinstatement as of the date 

[a teacher] was improperly released. That authority does not infringe on 

school board autonomy; it requires a board to follow the procedures it 

contractually adopted.”). 
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injury until the prescribed administrative remedy has been exhausted. Failure to 

exhaust is a jurisdictional defect.”); cf. Schloe v. Lead-Deadwood Indep. Sch. Dist., 

282 N.W.2d 610, 613 n.1, 614 (S.D. 1979) (explaining that the Department of 

Labor’s “jurisdictional base is lost if appellant’s grievance is not timely filed in 

accordance with the grievance procedure”; and noting that “the trial court could 

have no better jurisdiction than that of the [Department]”); Krentz v. Robertson, 228 

F.3d 897, 904 (8th Cir. 2000) (citations omitted) (“[A]n employee waives a 

procedural due process claim by refusing to participate in post-termination 

administrative or grievance procedures made available by the state.”). 

[¶31.] We reverse the circuit court’s denial of the City’s motions for judgment 

as a matter of law on the issue of exhaustion of administrative remedies. This 

matter is remanded to the circuit court to vacate the award of pre-hearing due 

process damages. Because Kolda’s failure to exhaust his administrative remedies is 

dispositive, we do not address the other issues raised on appeal.

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

WILBUR, Justices, concur.