State ex rel. Boyer v. Grady

• Decision Date: 12 July 1978
• Docket Number: No. 41557,41557
• Citation: 201 Neb. 360,269 N.W.2d 73
• Parties: STATE of Nebraska ex rel. Robert BOYER et al., Appellees, v. Richard L. GRADY, City Clerk of the City of North Platte, Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 73

269 N.W.2d 73

201 Neb. 360

STATE of Nebraska ex rel. Robert BOYER et al., Appellees, v. Richard L. GRADY, City Clerk of the City of North Platte, Nebraska, Appellant.

No. 41557.

Supreme Court of Nebraska.

July 12, 1978.

Syllabus by the Court

1. A writ of mandamus will not ordinarily be awarded to compel the performance of an act unless it is one which is actually due from the respondent at the time of the application. A writ in anticipation of default, however, may be granted where the respondent clearly manifests an intention not to perform the act in question and refuses to act because he claims that he is under no duty to act.

2. By the initiative process municipal voters may amend or repeal an ordinance enacted by the legislative body of a municipality where the object of the initiative is to accomplish no more than that which the city council and mayor could do if they so chose.

3. A municipal ordinance establishing a new scheme of taxation is not an appropriation ordinance.

4. Section 77-27,142, R.R.S.1943, does not limit the power to propose or reject ordinances concerning a municipal sales tax to the legislative body of a municipality, and does not except sales tax ordinances from the usual powers of initiative and referendum.

Maupin, Dent, Kay, Satterfield, Girard & Scritsmier and Dale A. Romatzke, North Platte, for appellant.

Murphy, Pederson & Piccolo and LeRoy Anderson, North Platte, for appellee.

Mattson, Ricketts, Davies, Stewart & Calkins and Richard M. Duxbury, Lincoln, brief of amicus curiae, League of Nebraska Municipalities, in support of appellant.

Heard before PAUL W. WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and C. THOMAS WHITE, JJ.

BRODKEY, Justice.

Relators and appellees, voters and residents of the City of North Platte, Nebraska, filed a petition for mandamus in the District Court for Lincoln County, seeking to require respondent Richard L. Grady, the city clerk of North Platte, to certify signatures on initiative petitions and submit an ordinance proposed in the initiative petitions to the voters of North Platte at a special or general election. Respondent denied that he was required by law to certify the signatures on initiative petitions or submit the proposed ordinance to the voters. Relators moved for summary judgment, which was granted after trial. The District Court ordered the respondent to certify the signatures on the initiative petitions and to submit the proposed ordinance to the voters of North Platte if the number of valid signatures on the petitions was sufficient. Respondent has appealed to this court, contending that the trial court erred in (1) failing to dismiss the action because it was prematurely filed; (2) holding that an existing ordinance could be repealed through the initiative process; (3) holding that section 18-117, R.R.S.1943, did not apply in this case; and (4) holding that sections 77-27,142 et seq., R.R.S.1943, did not prevent the use of the initiative process by relators in this case. We affirm the judgment of the District Court.

The facts are not in dispute, and most of the relevant facts are contained in a stipulation entered into by the parties. On June 22, 1976, the city council of North Platte adopted ordinance No. 1890, enacting a 1 percent municipal sales tax. Within 30 days thereafter, referendum petitions were filed by voters, primarily relators, who desired that the ordinance be submitted to the electorate for approval or disapproval. This attempt ultimately was unsuccessful because of an inadequate number of signatures on the referendum petitions.

On January 28, 1977, relators filed initiative petitions with the respondent, requesting that a proposed ordinance be submitted to the voters of North Platte. The proposed ordinance provided for the repeal of ordinance No. 1890, which would result in abolishment of the 1 percent municipal sales tax. On February 1, 1977, the city council determined that it should not recognize the initiative petitions as legal petitions that required the respondent to call an election. The respondent, who viewed the city council as his superior, then refused to certify the signatures on the petitions or call an election.

Relators instituted this action on February 8, 1977, 11 days after the initiative petitions had been filed with the respondent, by filing a motion for an alternative writ of mandamus, a petition for mandamus, and an affidavit. The trial court ordered that an alternative writ of mandamus should be issued, and that order was apparently served on the respondent on February 10th. On February 28th, the alternative writ of mandamus was actually issued and served upon the respondent. The writ commanded the respondent to certify the signatures on the initiative petitions and call an election if required by law, or to show cause why he refused to do so. Respondent answered on March 15th, denying that he was under a duty to act.

The initiative petitions in question contained the purported signatures of 4,292 voters of North Platte, or approximately 35 percent of the 12,242 registered voters of that city.

Respondent first contends that this action should have been dismissed because it was prematurely filed. In support of his position he relies on section 18-105, R.R.S.1943, which provides that when an initiative proposal includes a request for a special election and contains the proper number of signatures, the city clerk shall cause the proposal to be submitted to a vote at a special election which "shall be called by him not less than thirty nor more than sixty days from the filing of such proposal." Respondent argues that this statutory provision affords him 30 days from the date of the filing of the initiative petitions in which to call a special election, and that therefore relators filed their petition for mandamus prematurely because it was filed 11 days after the initiative petitions were received by the respondent.

It is a general rule that a writ of mandamus "will not ordinarily be awarded to compel the performance of an act unless it is one which is actually due from the respondent at the time of the application." 52 Am.Jur.2d, Mandamus, s. 90, p. 413. See, also, State ex rel. Sayer v. Junkin, 87 Neb. 801, 128 N.W. 630 (1910). Mandamus in anticipation of default, however, may be granted where "the respondent clearly manifests an intention not to perform the act in question * * * ." 52 Am.Jur.2d, Mandamus, § 90, p. 413. Therefore, even when the respondent's duty to act is not yet technically due, a mandamus action is not considered premature when the respondent has clearly refused to act and refuses to because he claims that he is under no duty to act. See, generally, Folcarelli v. Spencer, 94 R.I. 304, 180 A.2d 322 (1962); Hazel Park Racing Assn., Inc. v. Inglis, 336 Mich. 508, 58 N.W.2d 241 (1953); Robinson v. Board of Supervisors of Davis County, 222 Iowa 663, 269 N.W. 921 (1936); Hudson v. Nehill, 25 Misc.2d 1025, 206 N.Y.S.2d 918 (1960).

In the present case, the record adequately demonstrates that the respondent had no intention of certifying the signatures on the initiative petitions and calling an election, particularly after the city council determined that it should not view the petitions as valid ones which required action by the respondent. It should also be noted that the alternative writ of mandamus was not actually issued and served upon the respondent until 31 days after the filing of the initiative petitions, at which time the respondent had taken no action. Respondent's argument that he might have changed his mind and acted on the initiative petitions after relators applied for the writ of mandamus, but before 30 days had expired from the time the initiative petitions were filed, and that therefore the action should have been dismissed as premature, is not supported by the record.

Under these particular circumstances, we conclude the exception to the general rule is applicable, and the trial court did not err in refusing to dismiss the action as premature. We recognize, however, that ordinarily a writ of mandamus will not be awarded to compel the performance of an act unless it is actually due from the respondent at the time of the application.

The second issue in this case is whether municipal voters may utilize the initiative power to repeal an ordinance passed by the city council of the municipality. Respondent contends that the initiative process cannot be so used when the referendum process is, or was, available for that purpose.

The initiative and referendum powers of municipal voters are established by statute in this state. Section 18-101, R.R.S.1943, provides: "The right to propose ordinances for the government of any city or other municipal subdivision of the State of Nebraska shall, in addition to being exercised by the mayor and city council of such city or the governing authorities of such other municipal subdivision of this state, be vested in the voters thereof as hereinafter provided." Section 18-102, R.R.S.1943, requires that an initiative proposal be signed by at least 15 percent of the voters of the city. Ordinarily the proposal is to be submitted to the electorate at the first regular election held after the expiration of 30 days from the filing of the proposal. S. 18-104, R.R.S.1943. If, however, 20 percent of the voters sign the initiative proposal and request a special election, the city clerk shall submit the proposal to the voters at a special election which the clerk shall call not less than 30 nor more than 60 days from the filing of the proposal. §§ 18-103 and 18-105, R.R.S.1943.

Statutory provisions applicable to cities also provide for referendum petitions as a means of submitting ordinances, passed by the city council, to the voters of the city for approval or disapproval before they become effective. See §§ 18-112 et seq., R.R.S.1943.

Section 18-101, R.R.S.1943, contains no express...