State ex rel Goodhope v. Leyse
| Decision Date | 10 October 1932 |
| Docket Number | 7480 |
| Citation | 244 N.W. 529,60 S.D. 384 |
| Parties | STATE OF SOUTH DAKOTA ex rel GOODHOPE, et al., Plaintiffs, v. WALTER C. LEYSE, City Auditor of Sioux Falls, Defendant. |
| Court | South Dakota Supreme Court |
This is an original proceeding in this court, seeking a writ of mandamus to compel the defendant, city auditor of Sioux Falls, to certify as sufficient, under the provisions of section 6332, Rev. Code 1919, a certain petition filed in his office asking for an election to remove the mayor of the city. The petition for the writ alleges that the City of Sioux Falls is governed by a board of commissioners, and that the defendant is the duly qualified auditor of the city. The petition further alleges that on the 25th day of June, 1932, the plaintiffs caused to be filed in the office of the defendant a petition asking that the mayor of the city be removed from office; that the petition was in regular form and signed by the requisite number of qualified electors; that after certain court proceedings instituted by the mayor were dismissed by the court, the defendant auditor certified said petition as insufficient; that thereafter the plaintiffs filed an amended petition within the time allowed by law, which petition was regular in form and signed by the requisite number of qualified electors, and which petition was also certified as insufficient by the auditor. The petition then alleges a conspiracy among the defendant, the mayor, and the city attorney with the purpose of preventing the filing of the recall petition, and further alleges that the defendant auditor acted fraudulently and arbitrarily in certifying the recall petition as insufficient. The return of the defendant denied the sufficiency of the recall petition, denied the alleged conspiracy, and that he acted fraudulently or arbitrarily. The return then proceeded to allege facts which disclose that in ascertaining the sufficiency of the recall petition, the defendant did not confine himself to the face of the petition, but sought other means of determining whether the signers of the petition were in fact qualified electors. A fair construction of the return indicates that the petition upon its face meets the requirements of the statute. The plaintiff demurred to the return of the auditor, and it is the sufficiency of the return that is now before us for our consideration.
Section 6332. Rev. Code 1919, provides as follows:
“The procedure to effect the removal of the mayor or a commissioner shall be as follows:
The question here presented is the nature and extent of the auditor’s power and authority in passing upon the sufficiency of the petition filed with him under the provisions of the above section of our Code. A determination of this question will, in our opinion, dispose of this demurrer.
It will be noted that the provisions of the above section, relative to the duties of the city auditor on the filing of a petition in his office, are entirely different from other sections of our Code, relative to the filing of a petition with a certain designated officer for the purpose of setting in motion political machinery, wherein the matter referred to in the petition is ultimately submitted at an election. Under the provisions of the above section 6332, it is specifically made the duty of the city auditor to “ascertain whether or not it [the petition] is signed by the requisite number of qualified electors.” The method of determining this question by the auditor will, in our opinion, determine the nature of this duty which the statute has placed upon him. If the statute contemplates that it is the duty of the auditor to look only to the face of the petition and ascertain f rom it whether it is signed by the requisite number of qualified electors, then the duty placed upon the auditor involves no discretion to be exercised by him, and as we construe the return in this case, it would have been the auditor’s duty to certify the petition as sufficient. The plaintiffs contend that the sufficiency of the petition is to be determined by the auditor from the petition itself. The plaintiffs maintain that the statute, wherein it provides that “the city auditor shall examine the same [the petition] and ascertain.” clearly indicates that the auditor should be confined in his examination to the petition itself. With this construction of the statute we do not agree. It is true that the duty is placed upon the auditor to examine the petition, and it is equally true that the duty is placed upon the auditor to ascertain whether or not it contains the signatures of the requisite number of qualified electors, the statute does not say that he shall ascertain this fact from the petition, except as it may be implied from the fact that it is made the auditor’s duty to examine the petition. We do not believe this implication would be justified. Had it been the intention to confine the auditor to the petition in ascertaining its sufficiency, this could have been very simply and clearly expressed by inserting after the word “ascertain” in the statute, the words “from it.” This, however, was not done, and the duty of the auditor to “ascertain,” as we view it, is without any limitation in the statute. This construction, we believe, is a reasonable construction when considered in the light of other similar statutes. For example: The Nebraska statute is as follows, “within ten days from the date of filing such petition, the City Clerk shall examine it and from the voters’ register ... ascertain,” etc. Comp. St. 1911, c. 14a, art. 3, § 36. See State ex rel Topping v. Houston, 94 Neb. 445, 50 LRA (NS) 227. California, North Dakota, and...
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