Bjornson v. City of Aberdeen, 12804

• Decision Date: 17 September 1980
• Docket Number: No. 12804,12804
• Citation: 296 N.W.2d 896
• Parties: Paul J. BJORNSON, and Aberdeen Motor Hotels, Inc., a South Dakota Corporation, Plaintiffs and Appellees, v. The CITY OF ABERDEEN, a Municipal Corporation; Jeff Solem, Mayor of the City of Aberdeen and a member of the City Commission of the City of Aberdeen; Henry Lussem, Dean Driscoll, Robert Nikolas, and Allen Gates, each Members of the City Commission of the City of Aberdeen; and Winifred Kraft, City Auditor of the City of Aberdeen, Defendants, and James G. Shavie, Intervenor and Appellant.
• Court: South Dakota Supreme Court

Page 896

296 N.W.2d 896

Paul J. BJORNSON, and Aberdeen Motor Hotels, Inc., a South Dakota Corporation, Plaintiffs and Appellees, v. The CITY OF ABERDEEN, a Municipal Corporation; Jeff Solem Mayor of the City of Aberdeen and a member of the City Commission of the City of Aberdeen; Henry Lussem, Dean Driscoll, Robert Nikolas, and Allen Gates, each Members of the City Commission of the City of Aberdeen; and Winifred Kraft, City Auditor of the City of Aberdeen, Defendants and James G. Shavie, Intervenor and Appellant.

No. 12804.

Supreme Court of South Dakota.

Argued March 17, 1980.

Decided Sept. 17, 1980.

Julie Johnson of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for plaintiffs and appellees; Dennis Maloney of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, on the brief.

William J. Srstka, Jr. of Duncan, Olinger, Srstka, Lovald & Robbennolt, Pierre, for intervenor and appellant.

MORGAN, Justice.

This appeal stems from the trial court's grant of a peremptory writ of prohibition against the conduct of a special election, called in response to the filing of certain municipal referendum petitions which sought to refer to a vote of the people of Aberdeen a duly adopted ordinance, which, under SDCL 9-54, authorized issuance of industrial revenue bonds in the amount of $2,800,000 to provide for the construction of a Ramada Inn Motel and convention center in the city. We affirm in part, reverse in part, and remand for further proceedings.

Fifty-two referendum petitions containing 790 signatures were filed in the Aberdeen City Auditor's Office. Only 510 valid signatures were needed for the petitions to comply with SDCL 9-20-8. Appellees challenged the petitions on the basis of their invalidity as appeared on their face. The Aberdeen City Commission, however, rejected the challenge and set December 5, 1978, as the special election date, whereupon the prohibition action was commenced.

The trial court issued an alternative writ of prohibition on November 15, 1978. This alternative writ halted the special election until further order of the court. Shavie, innkeeper of the Aberdeen Holiday Inn, moved to intervene. The evidence shows that he was the instigator and dominant force in the petition drive. After hearing testimony and arguments on the motion, the trial court granted the motion to intervene. From that point on, the lawsuit was a contest between appellees and appellant. Neither the city nor its officials appealed.

Appellees sought to halt the special election, claiming that many of the signatures on the petitions were not valid. Allowance of these claimed invalidities would result in a number of signatures far less than the 510 required. The trial court appointed a referee to act for the court in making findings of fact on questions of voter registration and address problems which the petitions themselves posed. After a hearing, the referee issued findings of fact.

Further testimony was taken after which the trial court adopted the referee's findings of fact, entered its own findings of facts and conclusions of law, and granted a peremptory writ of prohibition barring any further proceedings in connection with the special referendum election called for by the petitions, which were before the court at that time.

During the proceedings below, 117 signatures were withdrawn by agreement between the parties, leaving 673 signatures on the petitions. The trial court disallowed another 390, leaving only 283 valid signatures remaining on the petitions, far short of the required 510. On appeal appellant concedes 25 of the disallowed signatures, leaving 365 at issue which fall into four categories: (1) 286 signatures where the date or address of the signatory was added by the circulator; (2) 64 signatures of unregistered voters; (3) 13 signatures of persons who lived at different addresses from the ones at which there were registered to vote; and (4) 2 signatures of women who had signed using their husbands' names with "Mrs."

All of the issues concerning the petitions on this appeal center around the signatures and the required supplementary information. We do not have issues of authentication, verification, or ghost-circulator as we did in Nist v. Herseth, 270 N.W.2d 565 (S.D.1978). Nor is there any dispute regarding the facts as they were ultimately found by the trial court.

The principal issue affecting the greatest number of signatures is category (1) which involves the apparent conflict between the statutorily mandated procedure for signing, and the procedure outlined in the petitions drawn substantially in conformity with ARSD 5:02:08:16 prescribed by the State Board of Elections under authority of SDCL 12-1-9. The disparity lies in the provision for adding the signer's residence address and the date of signing. The statute, SDCL 9-20-8, ¹ clearly requires that "each elector shall add to his signature his place of residence, including his street and house number, if any, and date of signing," whereas the form promulgated and adopted by the State Board of Elections states in the instructions on the face thereof: "2. Each signer or circulator must add the mailing address of the signer's residence and the date of signing." (Emphasis added.)

Appellant urges that the trial court erred in declaring invalid the 286 signatures where the evidence admittedly shows that the additions consisting of dates, addresses, or both, were made by the circulators of the petitions and not by the signatories to the petitions.

There are two aspects to this issue. First of all: As a general principle, when there is a conflict between a statutory election requirement and a duly adopted rule requirement, which prevails? Secondly, assuming the answer is the statutory provision, does a failure in strict compliance invalidate the signature?

That the legislature is the constitutional font of authority for referendum procedures requires no citation other than the constitutional authority: "The Legislature shall make suitable provisions for carrying into effect the provisions of this section." S.D.Const. art. III, § 1.

The legislature has authority to delegate powers to administrative agencies where the legislature sufficiently prescribes the standards or rules for the guidance of the agency. Authority may be delegated to the agency to exercise the administrative power of regulation and control. State, Div. of Human Rights v. Prudential Ins., 273 N.W.2d 111 (S.D.1978).

In this case the legislative authority delegated to the Board of Elections was clear. SDCL 12-1-9, in pertinent part, provides authority to "exercise the rule-making power previously granted to the secretary of state . . . and to otherwise prescribe forms where such are not made mandatory by law . . . ." SDCL 12-1-10 authorizes: "The board of elections shall report to and make recommendations to the Legislature concerning desirable or necessary changes in the election laws of this state."

Thus, we can see that in adopting ARSD 5:02:08:16, the Board of Elections exceeded its authority by prescribing a form different from that which was made mandatory by SDCL 9-20-8. The Board has no authority to amend the statute by rule. Rather, its authority in such regard is restricted to merely reporting to and recommending to the legislature desirable or necessary changes.

We then look at the second aspect. Does a failure of strict compliance with the statutory provisions invalidate the signatures? Generally, "(r) equirements for circulation and verification of referendum petitions, whether statutory or administratively adopted, are substantial in character and not merely requirements of form. . . . These requirements must, therefore, have been substantially complied with in order to render the petition valid." Corbly v. City of Colton, 278 N.W.2d 459, 461 (S.D.1979).

As to the specific statutory requirements of petition signatories, SDCL 9-20-8, in part, provides: "(E)ach elector shall add to his signature his place of residence, including his street and house number, if any, and date of signing." Generally speaking, the decisions of this court on the question of compliance with these statutory requirements have followed the hard line.

(T)he signer did not write in his own handwriting, his residence . . . post office address, and date of signing, or some of them. . . . Of course such signatures cannot be counted because the law requires the singer to do the whole job himself. . . . No one is authorized by law to doctor up a sick petition.

O'Brien v. Pyle, 51 S.D. 385, 392-393, 214 N.W. 623, 626 (1927) (citations omitted).

These various acts, viz., signing the petition, inserting the signer's residence, . . . his post office address, the date of signing, . . . are all placed on the same footing by the Legislature; so that the insertion of these data by the signer . . . are just as important and as much required by the law as the names of the signers themselves. The permission contained in section 5073 to indicate the place of residence . . . and post office address by ditto marks is a concession to the petitioner, but does not excuse him from inserting the ditto marks himself, and does not purport to excuse him from himself writing in the date of signing the petition. These separate requirements of the statute are not difficult of understanding nor arduous to perform.

Morford v. Pyle, 53 S.D. 356, 359, 220 N.W. 907, 909 (1928).

State v. Riiff, 73 S.D. 467, 473, 44 N.W.2d 126, 129 (1950), reaffirmed O'Brien v. Pyle, supra, saying that the statute "requires that the name of a petitioner be affixed to a petition and the information inserted by himself and no one else."

From 1889 to 1957 the signer was required to append to his signature his occupation, residence, and post office address. In 1919 the date of signing was added. In 1957 the addendum was changed to its present form which struck from the information the signer's occupation and spelled out in more...