State ex rel. Martin v. Eastcott
| Decision Date | 14 July 1928 |
| Docket Number | No. 6569.,6569. |
| Citation | 220 N.W. 613,53 S.D. 191 |
| Parties | STATE ex rel. MARTIN et al. v. EASTCOTT, City Auditor. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Davison County; Frank B. Smith, Judge.
Application for mandamus by the State of South Dakota, on the relation of F. A. Martin and another, against Thomas Eastcott, as City Auditor of the City of Mitchell, South Dakota. From an order quashing alternative writ, plaintiffs appeal. Reversed.Roscoe Satterlee, of Mitchell, for appellants.
P. M. Young, of Mitchell, for respondent.
The city council of the city of Mitchell enacted an ordinance which was published on May 6, 1927, fixing the salaries of the city officers. The ordinance increased the annual salary of the mayor from $300 to $900, of the aldermen from $200 to $360, of the city treasurer from $1,800 to $2,100, of the city engineer from $3,000 to $3,600, and of the chief of the city fire department from $100 to $1,800, and contained a declaration that the ordinance was “necessary for the immediate preservation of the public peace, health, and safety, and the support of the municipality and its existing public institutions” and should be in full force and effect from and after its passage, approval, and publication. Appellants presented to the city auditor a sufficient petition invoking the referendum as to such increases, and, the auditor refusing to call any election, appellants applied to the circuit court for a writ of mandamus. An alternative writ was issued, and on the return day it was quashed on the motion of defendant, and this appeal is from the order quashing the alternative writ.
[1] The application does not allege that appellants are taxpayers, and respondent contends that the paying of the salary increases could cause no injury to them, and therefore they are not entitled to maintain the proceeding. The contention is without merit. The statute provides that with certain exceptions an ordinance must be referred on a sufficient petition of qualified electors; the electors do not need to be taxpayers. One entitled to petition that an ordinance be referred has sufficient interest to enjoin action under the proposed ordinance, and is sufficiently aggrieved by the refusal to call the election to be entitled to appeal. State v. Seattle, 59 Wash. 68, 109 P. 309.
[4][5] The contention that the members of the city council must be made parties to this proceeding is likewise untenable. The city auditor is the person to whom the petition must be presented and who is required by section 6254 to call the election. The argument that only the mayor and city council can appoint judges of election and designate the polling places is without force. If, pursuant to law, an election is called by the auditor, it must be presumed that the mayor and city council will obey the law and perform the duties required of them in the matter of designating judges and polling places and canvassing the result of the election.
Cases like Murphy v. Gilman (Iowa) 214 N. W. 679, in which distinction is made between acts of municipal bodies which are legislative in character and acts which are only administrative, and hold that only legislative acts are subject to referendum, are of no aid in solving the question in this case because our statutes, which define an ordinance as “a permanent legislative act of the governing body of a municipal corporation within the limits of its powers,” and a resolution as “any determination, decision or direction of the governing body of a municipal corporation, of a special or temporary character, for the purpose of initiating, effecting, or carrying out its administrative duties and functions under the laws and ordinances governing the municipality,” provide that both ordinances and resolutions “except such as may be necessary for the immediate preservation of the public peace, health or safety, or...
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