State ex rel. Hooper v. Hahn
| Decision Date | 14 May 1943 |
| Docket Number | 8583. |
| Citation | 9 N.W.2d 502,69 S.D. 275 |
| Parties | STATE ex rel. HOPPER v. HAHN, Mayor et al. |
| Court | South Dakota Supreme Court |
G. F. Johnson, of Gregory, for appellants.
W J. Hooper, of Gregory, for respondent.
A petition signed by the required number of electors in the City of Gregory proposed an ordinance fixing the salaries of all municipal officers. Upon refusal of the council to submit the ordinance to the electors of the city, an alternative writ of mandamus was issued by the circuit court upon the relation of a resident, elector and taxpayer requiring the mayor and the city council either to enact the ordinance or submit it to a vote of the electors or show cause why they had not done so. Defendants answered and in justification of their refusal to submit the ordinance claim that the petition filed with the city auditor does not comply with the requirements contained in the constitution and the statutes and that it provides salaries for nonexistent offices. It is also alleged in the answer that the alternative writ "was made returnable in a shorter time than contemplated or allowed by law." The mandamus proceeding coming on for hearing, the learned trial court gave judgment for the relator and issued a preemptory writ, the mandate of which reads: "You are hereby commanded to forthwith meet as the Common Council of the City of Gregory and to adopt the said proposed ordinance and after its final enactment to submit it to a vote of the electors of the City of Gregory as prescribed by law, within thirty days after the final enactment of the said ordinance." Defendants have appealed.
Section 1 Art. III, state constitution, provides:
The provisions of statute here pertinent read:
"The right to propose ordinances for the government of any municipality shall rest with any five per cent of the electors thereof, such percentage to be based upon the whole number of electors voting at the annual municipal election preceding the proposal of the ordinance in question." SDC 45.1018.
"When a petition to initiate is filed with the auditor or clerk he shall present the same to the governing body at its first ensuing regular or special meeting.
"The governing body shall enact the proposed ordinance and shall submit it to a vote of the electors in the manner prescribed for a referendum within thirty days after final enactment." SDC 45.1020.
"No initiated ordinance shall become operative unless approved by a majority of the votes cast for and against the same.
"If so approved, it shall take effect upon completion of the canvass of the election returns relating thereto." SDC 45.1021.
Prior to the enactment of the Code of 1939, the statute provided that if an initiated "ordinance be not adopted," it must then "be submitted to a vote of the electors." § 6263, Rev.Code 1919. From the foregoing provisions of the Code of 1939, it will be noted that it is expressly provided that the "governing body shall enact the proposed ordinance and shall submit it to a vote of the electors", but it shall not "become operative unless approved by a majority of the votes cast."
The initiative petition in question sought alternative action that is, enactment of the ordinance or submission to a vote of the electors in the manner required by law. The law confers upon the electors the power to...
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