State ex rel. Wagner v. Summers
| Decision Date | 30 December 1913 |
| Citation | 144 N.W. 730,33 S.D. 40 |
| Parties | STATE OF SOUTH DAKOTA ex rel. V. F. WAGNER, Plaintiff and appellant, v. JOHN W. SUMMERS, City Auditor of the City of Yankton, Defendant and respondent. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Yankton County, SD
Reversed
Joseph Janousek, Charles P. Bates
Attorneys for Appellant.
A. L. Wyman, French & Orvis
Attorneys for Respondent.
Opinion filed December 30, 1913, Rehearing pending
The city of Yankton is a city under the commission form of government, viz., under chapter 86, Laws 1907, and the acts amendatory thereof. On June 2, 1913, the board of commissioners of said city, granted to a certain individual a permit to sell intoxicating liquors at retail in said city. On June 4, 1913, there was presented to defendant as city auditor, a petition signed by relator and others, in number more than 5 per cent. of the legal voters of said city, requesting said defendant to submit the motion or resolution by which said permit was granted to the vote of the electors of said city for rejection or approval. The defendant neglected and refused to call an election therefor. Upon the affidavit of the relator setting forth the foots, the trial court, on June 23, 1913, issued an alternative writ of mandamus requiring the defendant to call such election, or to show cause to the contrary. Upon the hearing the defendant moved to quash the writ on the ground that the same did not show or recite facts sufficient upon which to issue a writ of mandamus. The trial court granted said motion, and entered judgment dismissing the proceeding. From such judgment relator appeals.
Appellant contends that the defendant, being a ministerial officer, cannot be heard to question the constitutionality of the statute under which this proceeding is brought. In view of the decision at which we have arrived, it becomes unnecessary to determine that question. It is, however, one that is certainly not frivolous.
The only other question presented for our consideration is whether the act of granting such permit can lawfully be referred to the electors for their rejection or approval.
Section 1 of Article 3 of the state Constitution as adopted in 1889 provided: "The legislative power shall be vested in a legislature which shall consist of a senate and house of representatives." At the general election in 1898 the electors of this state adopted an amendment to said section covering the features popularly known as the initiative and referendum. South Dakota was the first state in the Union to adopt them. Said section, as then amended and as now in force, reads as follows:
A slight difference in wording and punctuation is noticed between the amendment as adopted and as appears in the session laws of 1903 and subsequent years. We have quoted the former.
At its next session after the adoption of said amendment, viz, the session of 1899, the Legislature enacted chapter 93 (sections 21-27, Pol. Code), which related directly to measures enacted or to be "enacted and submitted" by the Legislature; and chapter 94 (sections 1214-1228, Pol. Code), which related to Municipalities. In 1907 the Legislature enacted chapter 86, providing for the incorporation of "Cities under Commission." Sections 39-53 of said chapter relate to the initiative and referendum. Section 39 of said act is as follows:
This section differs from section 1214, Pol Code, in that the latter section provides: "No law, ordinance, or resolution, having the effect of law, for the government of any city or town ... shall go into effect," etc. It will be noticed that the italicised words "having the effect of law" are not contained in the referendum feature of the law governing cities under commission.
It is contended by respondent that the initiative and referendum are repugnant to a republican form of government, and hence that they violate section 4 of article 4 of the Constitution of the United States. While the initiative and referendum as applied to the Legislature may raise the question as to whether this state is now republican in its form of government, such question is not a judicial question for the courts to determine, but is a political question solely for the Congress to determine. Pac. States Tele. & Tele. Co. v. State of Oregon, 223 U. S. 118, 32 S.Ct. 224, 56 L.Ed. 377. It has been decided in other jurisdictions, and we agree therewith, that the provisions of the initiative and referendum as applied to municipalities do not raise the question as to whether a state is republican in its form of government. Eckerson v. City of Des Moines, 137 Iowa; 452, 115 N.W. 177; In re Pfahler, 156 Cal. 71, 88 Pac. 270, 11 L.R.A. (N.S.) 1092, 11 Ann, Cas. 911; Walker v. City of Spokane, 62 Wash. 312, 113 Pac, 775, Ann.Cas. 1912C, 994; Kiernan v. City of Portland, 57 Or. 454, 111 Pac. 379, 112 Pac. 402, 37 L.R.A. (N.S.) 339.
It is not contended by respondent that the granting of a permit to operate a saloon comes under the parenthetical clause of section 39, c. 86, Laws 1907, viz. "(except such as are for the immediate preservation of the public peace, health, or safety, support of the city government, and its existing public institutions);" but it is contended by respondent that the granting of such permit is not a law and does not have the effect of law, and that in so far as said section 39 is broader than the constitutional reservation, it is null and void. If the legislature had the authority to enact said section 39, it becomes immaterial whether the action of the city commission sought to be referred is a law or has the effect of law. The solution of the question at issue then depends: First, upon the authority of the Legislature (either under the initiative and referendum amendment to the Constitution or independently thereof) to enact said section 39; and, second, upon whether the granting of such permit comes within the provisions of said section 39.
It is elementary that the legislative power of the Legislature is unlimited except as it is limited by the state Constitution and federal Constitution.
It is also elementary that while the federal Constitution is viewed as a grant of power to Congress, the State Constitution is not a grant of power, but is a limitation upon the powers of the Legislature. In the case of In re Watson, 17 S.D. 486, 97 N.W. 463, 2 Ann.Cas. 321, this court said:
"It should be constantly borne in mind that there are no limitations upon the legislative powers of the Legislature in this state, except such as are imposed by the state and federal Constitutions; that no legislative act should be declared unconstitutional unless the conflict between its provisions and some principle of constitutional law is so plain and palpable as to leave no reasonable doubt of its validity."
Judge Cooley in his work on Constitutional Limitations (7th Ed.) pp. 126-128, says:
Many other and similar citations might be given, but we will only call attention to two, viz., State ex rel. Schrader v. Polley, 26 S.D. 5, 127 N.W. 848, and State ex rel. Simpson v. City of Mankato, 117 Minn. 458, 136 N.W. 264, 41 L.R.A. (N.S.) 111.
The object of the constitutional amendment, as well as its effect (so far as concerns the referendum) was not to...
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