State ex rel. McGregor v. Young

• Decision Date: 19 December 1894
• Citation: 61 N.W. 165,6 S.D. 406
• Parties: STATE OF SOUTH DAKOTA ex rel. R. C. McGREGOR, Plaintiff and , v. E. R. YOUNG et al., Board of Councilmen of Egan, SD. Defendant and .
• Court: South Dakota Supreme Court

6 S.D. 406, 61 N.W. 165 (1894)

STATE OF SOUTH DAKOTA

ex rel. R. C. McGREGOR,

Plaintiff and ,

v.E. R. YOUNG et al.,

Board of Councilmen of Egan, SD.

Defendant and .

South Dakota Supreme Court

Appeal from Circuit Court, Moody County, S.D.

Hon. Joseph W. Jones, Judge

Application for writ of mandamus—Dismissed

Joe Kirby, R. Brennan, Sioux Falls, S.D.

Attorneys for appellants.

Palmer & Rogde, Sioux Falls, S.D.

Attorneys for respondent.

Opinion filed Dec. 19, 1894

CORSON, P. J.

The defendants, constituting the president and board of trustees of the village of Egan having neglected to call an election for the officers of said village, at the time prescribed in the village charter, for the years 1893 and 1894, the circuit court, on application of an elector and taxpayer, issued its alternative writ of mandamus to the president and board of trustees, commanding them to call a village election, or show cause, etc. Subsequently, a peremptory writ was issued, from which the defendants appeal.

The village of Egan was incorporated under a special charter passed by the late territorial legislature in 1881. The term of the village officers is provided for by section 2 of chapter 1, which reads as follows:

“The elective officers of the corporation shall be, one president, one recorder, three trustees, one treasurer, one justice of the peace and one marshal, which, with the exception of the justice, shall hold their office one year and until their successors are elected and qualified.”

The time for holding elections for such officers is provided for by section 10, same chapter, which reads as follows:

“There shall be an annual election for the elective officers therein provided on the first Monday in April in each and every year, and the polls shall be kept open from 10 o’clock in the forenoon, until 4 o’clock in the afternoon. At such election the trustees, or any two of them shall act as judges of election, and the recorder as clerk of election.”

While it is not specifically declared to be the duty of the board to give notice of the election, the duty is clearly incident to the office; and the duty of the board to call the election at the proper time is not questioned by appellants’ counsel. But it is contended by the learned counsel for the appellants that, as the time for holding the election is definitely fixed for the first Monday in April in each year, the board of trustees had no power to call an election at any other time, and the court had no power, therefore, to require it so to do. While it is true, as asserted by appellants’ counsel, that the court cannot, by the writ of mandamus, impose a duty or confer a power not imposed by law, but can simply compel inferior tribunals to exercise a power which it possesses, yet we think this principle is not applicable to the case at bar. The duty to call the election at the proper time is clearly imposed upon the board as a power incident to the organization of the village, and is recognized as existing by subsequent statutes, especially by the act of the state legislature (chapter 57, Laws 1891) known as the “Australian Ballot Law.” Various duties are imposed upon municipal organizations by that act, which can only be performed by its board of trustees. We cannot, therefore, agree with counsel in their contention. The duty is imposed upon the board to call an election on the first Monday of April in each year; but when, from any cause, the board has failed to cause an election at that time, and to provide the proper ballots, booths, judges, etc., its duty is not performed, and it is its duty to call the election at the earliest practical day thereafter. Notwithstanding the board of trustees neglected its duty at the proper time, the obligation still rested upon it to call an election at the earliest opportunity.

Judge Dillon, in his work on Municipal Corporations, quotes with approval the following from an English work:

“The court, says Mr. Willcock, will grant a mandamus to proceed to an election of a new mayor, after the charter day has passed without such election, where the former mayor, having the power to do so, holds over, and refuses to convoke an assembly for that purpose, unless the charter restrains the right of electing to a particular time; and it will be granted for the election of bailiffs; chamberlains, coroners, and other annual officers, although not the chief officers of the corporation.”

Dil. Mun. Corp. § 838. And the author adds:

“So, in this country it has been decided that an election for municipal officers may be held after the charter day, and that a mandamus may be granted to compel the proper officers to give notice thereof.”

Id. § 839; People v. Town of Fairbury, 51 Ill. 149; State v. Smith, 22 Minn. 218. In the case of People v. Town of Fairbury, supra, the time for holding the annual election for the president and trustees of the town had been fixed by an ordinance on the 15th day of August in each year. That day coming on Sunday, the board gave no notice of an election. An application for a mandamus to compel the board to call an election at a subsequent day was granted, and on appeal the supreme court of Illinois held the mandamus proper, the court saying: “The law requires annual elections, and, when it was discovered the day fixed by ordinance fell on Sunday, the board should have fixed a new day, and given the proper notice before the time expired; but the annual day having, by some means free from design or fraud, been passed by, it was clearly within their power afterwards to call the election; and, having the power, it was their duty to do so after as before the expiration of the year, and a duty which they may be compelled to perform. Any other construction of the law would enable these officers to keep themselves perpetually in power.”

And Chancellor Kent says

“that where the members of a corporation are directed to be annually elected, the words are only directory and do not take away the power incident to the corporation to elect afterwards, when the annual day has, by some means free from design or fraud, been passed by.”

2 Kent, Comm. 295. And in State v. Smith, supra, the court says:

“Assuming that this was the proper time for the election of an assessor, the failure of the council then to act upon the matter, and its adjournment sine die, did not relieve it from the duty, which the law imposed upon it, of making election. So far as relates to the time when such election should be made, the statute is simply directory. Having neglected its duty at the proper time, from whatever cause, the obligation still rested upon it to elect at the earliest opportunity.”

The doctrine thus laid down seems to be settled law, and applies to all municipal corporations. The duty is imposed upon the president and board of trustees, as incident to their powers, to call the election at the time designated by law; but their failure to perform that duty so imposed upon them does not have the effect of relieving them from the performance of this duty, and they are not relieved until the duty has been performed. As this court held in Smith v. Lawrence, 2 S.D. 185, 49 N.W. 7 (1891), the duties imposed upon public officers are imperative, and performance may be coerced by writ of mandamus. It would be intolerable that a president and board of trustees of a village could perpetuate themselves and the other village officers in office indefinitely, by neglecting to perform their duty of calling an election, providing ballots, booths, judges, etc. Such neglect of duty cannot be beyond the correction of the courts, and if the officers do not choose to act the courts will set them in motion, and see that the rights of the electors to elect and be governed by officers of their own selection shall not be either denied or prevented. Under the Laws of 1891 a penalty is imposed for the wilful...