State ex rel. Strenge v. Westling

• Decision Date: 08 September 1964
• Docket Number: No. 10123,10123
• Court: South Dakota Supreme Court
• Parties: STATE ex rel. Vernon STRENGE, E. H. King and E. C. Shanholtz, Plaintiffs and Appellants, v. Duane WESTLING, Orville Haugen, Wm. Welbing, Fred Elhoff, J. O. Lee, Palmer Kringen, Cliff Gould and H. S. Lewis, Jr., Defendants and Respondents.

Page 109

130 N.W.2d 109

81 S.D. 34

STATE ex rel. Vernon STRENGE, E. H. King and E. C Shanholtz, Plaintiffs and Appellants, v. Duane WESTLING, Orville Haugen, Wm. Welbing, Fred Elhoff, J O. Lee, Palmer Kringen, Cliff Gould and H. S Lewis, Jr., Defendants and Respondents.

No. 10123.

Supreme Court of South Dakota.

Sept. 8, 1964.

Rehearing Denied Oct. 9, 1964.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, Harold Benedict, Colman, Field, Arvesen, Donoho & Lundeen, Fergus Falls, Minn., for plaintiffs and appellants.

Carl Miller, Flandreau, Claude Hamilton, Blains Simons, Sioux Falls, for defendants and respondents.

HOMEYER, Judge.

At a special election held on December 13, 1960, the people of Colman approved an ordinance granting its city council authority to construct and operate a municipal electric distribution system and to issue negotiable revenue bonds to finance such project under the provisions of SDC 45.24. ¹ An attempt to halt the mandate of such election failed when this court held any irregularities which may have occurred in the election proceedings were validated by Ch. 465, Laws of 1961. ²

Subsequently, ³ an initiative petition in proper form was filed with the city auditor proposing an ordinance which would revoke and nullify such authority. The City council refused to enact such ordinance and to call a special election thereon. In this action plaintiffs as electors and taxpayers seek to compel defendants to enact and submit such nullifying ordinance to a vote of the people of Colman. The trial court refused to order issuance of a peremptory writ of mandamus and this appeal followed.

This court in Custer City v. Robinson et al., 79 S.D. 91, 108 N.W.2d 211, decided March 25, 1961, said there was no power in a municipality or its electors to rescind a vote authorizing a bond issue and an ordinance seeking to revoke previous action authorizing establishment of a hospital and issuance of bonds was not the subject of an initiative measure. While Custer City was pending, the legislature enacted Ch. 247, Laws of 1961, which provides: 'The right to initiate an ordinance shall not be applicable to ordinances proposed to nullify the purpose for which bonds have been sold by a municipality pursuant to statutory authority, unless exercised within a period of thirty days after the sale of said bonds.' (Emphasis supplied) No bonds have been sold.

Summarized plaintiffs' contentions are (1) the statute quoted above now permits the initiative to be used to require an election seeking to rescind authority to issue bonds granted at a prior municipal election; that such legislation is prospective in operation and applicable here although the election was held in 1960; or in the alternative, if not prospective, it should be given retrospective effect since public rights only are affected; and (2) failing in the foregoing argument, Custer City should be distinguished on its facts; or again in the alternative, the decision should be reconsidered and reversed.

By adding a new section to SDC 45.10 the legislature has now granted to municipalities and the electors thereof the power at a second election to rescind a previous vote authorizing issuance of bonds. The absence of such an empowering statute was the foundation of our holding in Custer City. Nevertheless, it would be presumptuous for us to say that such intention existed prior to passage of Chapter 247. The legislative history reveals the bill when introduced omitted the italicized portion of the statute quoted supra and this part of the statute was added by the reference committee before final passage. ⁴ Without this addition the act would merely have been a statutory pronouncement of what became decisional law by the Custer City case. With the addition, the gap was filled, and following its effective date ⁵ the statute abrogated the rule announced. Within a fixed time the initiative may now be used to require elections which seek to revoke authority to issue bonds. This power, however, is a new power that did not exist prior to the effective date of the act. See Shielcrawt v. Moffett, 294 N.Y. 180, 61 N.E.2d 435, 159 A.L.R. 971. The argument that a pre-existing legislative intent should be inferred from passage of the statute is not persuasive.

Plaintiffs also maintain that use of the initiative in 1963 to require an election to attempt to rescind a bond authorizing vote in 1960 is prospective operation and usage of Chapter 247. They recognize judicial aversion to retrospective construction and application of statutes, but advance the rule frequently referred to in texts and cases that a statute does not operate retroactively merely because it relates to antecedent facts and events, or because part of the requisites for its application occurred before its passage. 82 C.J.S. Statutes Sec. 412; 50 Am.Jur., Statutes, Sec. 476; Public School District No. 35, etc. v. Cass County Board of Commissioners, N.D., 123 N.W.2d 37; Sipple v. University of Illinois, 4 Ill.2d 593, 123 N.E.2d 722. The 1960 election is pictured as but an antecedent event furnishing nothing more than a jurisdictional requirement as a foundation for use of the initiative process. We do not share this view.

By a valid and nonrescindable election held more than six months before the statute became effective, the city council had been vested with authority to erect and operate a municipally owned electric distribution system and issue bonds therefor. The residents and taxpayers of the community had emphatically and irrevocably expressed their desires in the form and manner required by law. Each resident of the municipality in varying degree had an interest in the use and consumption of electric energy and a right to choose the source by which it could legally be made available to him. The election vested the city council with the requisite authority to build and operate a municipal light plant and finance the cost thereof. This was a substantive right to which the people of Colman were entitled both singly and collectively. See Dingman v. City of Council Bluffs, 249 Iowa 1121, 90 N.W.2d 742. The use of the initiative process to attempt to defeat this right at another election by virtue of a subsequently enacted law would be retrospective application of Chapter 247. Such right is more than an antecedent fact or event and a law permitting an election to be called to attempt to defeat such right is more than remedial or procedural legislation.

The rule is generally set forth in 82 C.J.S. Statutes Sec. 412: 'A retroactive or retrospective law, in the legal sense, is one that takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past.' Another election imposes a new duty upon the electorate and attaches a new disability or condition to a past transaction which did exist prior to passage of Chapter 247.

Also, in 82 C.J.S. Statutes Sec. 414: 'Retrospective or retroactive legislation is not favored. Hence, it is a well-settled and fundamental rule of statutory construction, variously stated, that all statutes are to be construed as having only a prospective...