State ex rel. Loe v. Davis

• Decision Date: 20 January 1919
• Docket Number: No. 4489.,4489.
• Citation: 41 S.D. 327,170 N.W. 519
• Parties: STATE ex rel. LOE v. DAVIS, City Auditor.
• Court: South Dakota Supreme Court

41 S.D. 327

170 N.W. 519

STATE ex rel. LOE

v.DAVIS, City Auditor.

No. 4489.

Supreme Court of South Dakota.

Jan. 20, 1919.

Appeal from Circuit Court, McCook County; Jos. W. Jones, Judge.

Mandamus by the State of South Dakota, on the relation of Anton Loe, against Clarence M. Davis, as City Auditor of the City of Salem. From judgment for relator, respondent appeals. Affirmed.Bogue & Bogue, of Parker, for appellant.

Caldwell & Caldwell, of Sioux Falls, for respondent.

McCOY, J.

[1][2][3] The one question presented on this appeal is whether or not, under the Constitution and laws of this state, a city ordinance fixing the salaries of the mayor and aldermen is subject to the referendum. The learned trial court held that it was. From a judgment of the lower court in mandamus requiring the holding of a referendum election upon such an ordinance appeal has been taken to this court. We are of the opinion that the holding of the trial court was proper. Section 1, art. 3, of the Constitution provides for referendum vote upon all laws or ordinances of municipalities, excepting such as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions. We are of the view that the ordinance in question is clearly not within this exception. The contention of appellant is that the ordinance in question is within the exception in section 1214, Pol. Code, being an act passed for the purpose of carrying into effect a referendum election under section 1, art. 3, of the Constitution, and which provides that all laws and ordinances may be referred to a vote, excepting such as are for the immediate preservation of the public peace, or the public health or safety, or expending of money in the ordinary course of the administration of the affairs of such public corporations. The specific contention of appellant is that the ordinance in question provides for an expenditure of money in the ordinary course of the affairs of city administration. If section 1214 conflicts with the Constitution, it is to that extent void. The said article of the Constitution is the fundamental and paramount law of this state as to what exceptions exist in relation to laws which are subject to referendum, and the Legislature has no power to add to or take from the constitutional provision any part or portion thereof. Even if this statute was valid, we are of the view that the ordinance in...