State ex rel Card v. Gray

• Decision Date: 25 March 1921
• Docket Number: 4864
• Citation: 44 S.D. 60,182 N.W. 320
• Parties: STATE OF SOUTH DAKOTA ex rel. JAMES CARD, Plaintiff, v. C. E. GRAY, Mayor of Rapid City, John D. Newcomer et al., City Commissioners of Rapid City, and J. H. Mathias, City Auditor, Defendants.
• Court: South Dakota Supreme Court

44 S.D. 60

182 N.W. 320

STATE OF SOUTH DAKOTA ex rel. JAMES CARD, Plaintiff,

v.

C. E. GRAY, Mayor of Rapid City, John D. Newcomer et al., City Commissioners of Rapid City, and J. H. Mathias, City Auditor, Defendants. South Dakota Supreme Court Original Proceedings #4864--Action dismissed, restraining order vacated George E. Flavin, H. F. Fellows Attorneys for Plaintiff. Buell & Denu, George Williams Attorneys for Defendant. Opinion filed March 25, 1921

GATES, J.

This is an original action, in which it is sought to have two elections held in Rapid City under the provisions of sections 6231 and 6234, Rev. Code 1919, declared null and void, and to enjoin the defendants, among other things, from issuing certificates of election to the nine commissioners said to have been elected under the latter section. Sections 6231-6234, Rev. Code 1919, being article 7, c. 3, pt. 8, tit. 6, of the Revised Code, embrace what is commonly called the City Manager Law.

It is urged that this law violates Const. art. 3, § 21, in that it embraces more than one subject, and that the provisions of the law are not indicated in the various headings of "Title," "Part," "Chapter," and "Article." The sections particularly attacked by plaintiff are sections 6233, 6234, 6235, and 6240. The title to the act adopting Rev. Code 1919 (as disclosed by chapter 300, Laws 1919) is "An act to provide a Revised Code of South Dakota." This is a sufficient title to cover all of the subject-matter of the Revised Code, and complies with Const. art. 3, § 21. Wilson v. Western Surety Co., 140 N.W. 263; J. P. Schaller Co. v. Canistota Grain Co., 141 N.W. 993; State v. Devers, 143 N.W. 364; State ex rel Kronschnabel v. Issenhuth, 148 N.W. 9; Street v. Farmers El. Co., 149 N.W. 429; Murphy Liquor Co. v. Medbery, 153 N.W. 654; State v. Horner, 153 N.W. 766. It is therefore immaterial whether the several subordinate headings indicate the intent and purposes of the article.

It is urged that section 6234, Rev. Code, is unintelligible and uncertain, in that it provides that at the organization the board of commissioners shall elect one of their number to act as mayor until the first regular meeting of May of the ensuing year (which in the instant case would be until May, 1922), whereas it also provides for the election of mayor at the May meeting in each year (which would require an election of mayor also in May, 1921). It is sufficient to state that this anomaly does not affect the constitutionality of the section, and the difficulties that may arise therefrom are not now before us.

It is urged that the portion of section 6234, Rev. Code 1919, which provides that the newly elected board shall succeed the board of commissioners then serving violates Const., art. 6, § 2, which provides that "no person shall be deprived of life, liberty, or property without due process of law." The precise point urged is that the Legislature cannot remove officers of a city during the term for which they are elected without abolishing the office. The fallacy of the argument lies in the assumption that the office has not been abolished. The city of Rapid City has heretofore been governed by a board of three commissioners under the provisions of section 6226, Rev. Code 1919. The office of commissioner,...