Custer City v. Robinson

• Decision Date: 25 March 1961
• Docket Number: No. 9885,9885
• Citation: 108 N.W.2d 211,79 S.D. 91
• Parties: CUSTER CITY, a Municipal Corporation, Plaintiff and Appellant, v. Homer ROBINSON, James L. Cullum, and Eric Heiderpriem, each individually and as representatives of a class to which they belong, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 211

108 N.W.2d 211

79 S.D. 91

CUSTER CITY, a Municipal Corporation, Plaintiff and Appellant, v. Homer ROBINSON, James L. Cullum, and Eric Heiderpriem, each individually and as representatives of a class to which they belong, Defendants and Respondents.

No. 9885.

Supreme Court of South Dakota.

March 25, 1961.

Robert C. Bakewell, Jr., Custer, Martin P. Farrell, Hot Springs, for plaintiff and appellant.

No appearance for defendants and respondents.

ROBERTS, Judge.

This is an action by the City of Custer for declaratory judgment against Homer Robinson, James L. Cullum, and Eric Heidepriem as individuals and as representatives of petitioners who filed a petition requesting submission to the electors of the city of the question of rescinding action previously taken authorizing issuance of bonds for the construction of a municipal hospital. The trial court held that defendants and the other petitioners are entitled to have the question as proposed submitted to a vote. Plaintiff has appealed.

It appears from the record that the following proposal at a special election in August, 1957, was submitted to and adopted by the voters of the city: 'Shall the City of Custer City, Custer County, South Dakota, be authorized to issue General Obligation Bonds in an amount not to exceed $120,000.00 and to bear interest at a rate of not to exceed five per cent (5%) per annum, for the purpose of purchasing and constructing buildings, facilities and other improvements necessary and appropriate to the establishment of a hospital by the City of Custer City and of matching funds of the United States of America which are or may be available for such purpose.'

The city thereafter issued general obligation bonds in the amount authorized and caused to be spread upon all the taxable property within the city an annual tax sufficient to pay interest and principal when due. At the time of the commencement of this action taxes in the amount of $5,945.67 had been collected, three bonds in the amount of $1,000 each had been paid, there had been expended for services of an architect $3,750 and the city had paid from its general fund claims properly chargeable to the hospital project in the amount of $2,624.

The petition filed on March 30, 1959, requested submission of the following question: 'Shall the City of Custer City, South Dakota, revoke its plan for the construction of a Municipal Hospital and call for payment those certain General Obligation Bonds heretofore issued for that purpose?' The city officers refused to comply and then commenced the present action to have determined their respective duties and rights. Thereafter, May 12, 1959, a temporary injunction to preserve the status of the parties pending determination of the merits of the controversy was issued in an injunction suit brouht by four electors and taxpayers of the city.

The Constitution of this State, Sec. 1, Art. III, reserves to the electors of a municipality the right of initiative and referendum. Sections 45.1018 to 45.1021, SDC 1960 Supp., set forth the manner of exercising the initiative privilege. We need not determine whether or not the petition filed was in due form and in compliance with the procedure and conditions prescribed in these statutory provisions.

It is fundamental that an ordinance or resolution proposed by the electors of a municipality under the initiative law must be within the power of the municipality to enact or adopt. 62 C.J.S. Municipal Corporations Sec. 454; see State ex rel. Saylor v. Walt, 66 S.D. 14, 278 N.W. 12; Roush v. Town of Esmond, 73 S.D. 406, 43 N.W.2d 547. A municipal corporation or its electors have only such powers as are expressly delegated by the state or as are necessarily implied from expressly delegated powers. Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89; City of Rapid City v. Rensch, 77 S.D. 242, 90 N.W.2d 380. The question then is whether there is power in a city to rescind the vote on a bond issue after it has been authorized.

The provisions of SDC 45.23 and acts amendatory thereto constitute the procedure for issuance of general obligation bonds by a city. They provide for a bond election. If the requisite majority of the electors cast their vote in favor of the issuance of bonds, the city without further act is authorized to issue bonds through its officers to the amount voted and to sell and negotiate the same. There is no provision vesting authority in the electors of a city to petition for another election to vote on the question of rescinding their former action.

In State ex rel. Saylor v. Walt, supra, this court had before it the question whether a resolution adopted by the governing body of the City of Huron accepting the conditional offer of the United States to purchase bonds and to grant additional funds was subject to a referendum. The authority to sell and negotiate the bonds had been granted to the governing body of the city by the electorate. The decision is not to be taken as authority for the statement that there is a general right of electors to rescind by another vote action previously taken authorizing the...