State ex rel. Millerke v. Nisbet

• Decision Date: 16 February 1917
• Docket Number: 4011
• Citation: 161 N.W. 351,38 S.D. 347
• Parties: STATE OF SOUTH DAKOTA ex rel N. MILLERKE, Plaintiff and respondent, v. W. C. NISBET et al., the Board of Commissioners of the City of Dell Rapids, Defendants and Appellants.
• Court: South Dakota Supreme Court

38 S.D. 347

161 N.W. 351

STATE OF SOUTH DAKOTA ex rel N. MILLERKE, Plaintiff and respondent,

v.

W. C. NISBET et al., the Board of Commissioners of the City of Dell Rapids, Defendants and Appellants. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge #4011—Affirmed Krause & Krause Attorneys for Appellant. Henry Robertson Attorney for Respondent. Opinion filed February 16, 1917

GATES, P. J.

The city of Dell Rapids is a city under the commission form of government. On January 31, 1916, a petition was filed by 170 electors of the city (nearly one-half of the total number voting at the last preceding municipal election) with the city auditor, asking that there be submitted to the electors of the city the question whether the city should change its form of government and become incorporated under charter 14 of the Revised Political Code, commonly referred to as the aldermanic form of government. The municipal officers failed to comply with the petition, and in March, 1916, relator applied for, and secured, an alternative writ of mandamus requiring such officers to act or to show cause why they had not done so. Upon the trial judgment was entered directing the issuance of a peremptory writ. Therefrom the defendants appealed to this court.

By the provisions of chapter 125, Laws 1913, section 1170 of chapter 14 of the Revised Political Code was amended to read as follows, the new portion being italicized by us:

"Any city now existing in this, state under a special charter, or incorporated as. a, city under commission, may become incorporated, under this article in the manner following: Whenever one-eighth of the legal voters of such city voting at the last preceding municipal election shall petition the mayor and council thereof to submit the question as to whether such city shall become incorporated under this article to a vote of the electors of such city, it shall be the duty of such mayor and council to submit such question accordingly within thirty (30) days after the filing of such petition, and to appoint a time and place or places at which such vote may be taken, and to designate the persons who shall act as judges at such election; but such question shall not be submitted oftener than once in each year."

It is the claim of appellants that by the repealing clause of the commission governed cities act, viz section 137, c. 80, Laws 1907, section 1170 of the Revised Political Code was repealed because inapplicable to cities under commission. This claim is too attenuated to deserve serious consideration. Of course, while Dell Rapids is proceeding under the commission form of government, certain sections of the aldermanic act have no application to it; but, when its electors desire to have the question of change of organization submitted to a vote, section 1170 as amended is a step in the procedure.

Appellants' next contention is equally strained and without merit. The original act of which said section 1170 was a part was chapter 37, Laws 1890. Section 1 of article of said chapter used this language, viz. ...