Williamson v. Aldrich

• Decision Date: 02 October 1906
• Citation: 108 N.W. 1063,21 S.D. 13
• Parties: WILLIAMSON v. ALDRICH et al.
• Court: South Dakota Supreme Court

108 N.W. 1063

21 S.D. 13

WILLIAMSON v. ALDRICH et al.

Supreme Court of South Dakota

October 2, 1906

Appeal from Circuit Court, Brown County.

Action by G. N. Williamson against A. N. Aldrich and others. From an adverse judgment, plaintiff appeals. Reversed.

Taubman Williamson & Herreid, for appellant.

L. W Crofoot and C. E. De Land, for respondent.

FULLER P. J.

This appeal is from an order sustaining a demurrer to the complaint in an action by a taxpayer to restrain the issuance of municipal bonds by corporate authority in the sum of $35,000 for the purpose of providing the city of Aberdeen with an electric lighting plant. It is conceded that the issuance of these bonds will create a debt in excess of the constitutional limitation unless $38,000 now in the sinking fund applicable only to the payment of bonded indebtedness not yet matured should be deducted in estimating the present total outstanding indebtedness of the city. As Aberdeen has less than 8,000 population, a present bonded indebtedness of $95,000 and taxable property for the year 1905 of the value of $2,000,000 only, the point is controlled by section 4 art. 13 of the Constitution which limits the debt of such a city to 5 per centum of the assessed valuation of its taxable property for the preceding year and expressly provides that "no such debt shall ever be incurred for any of the purposes in this section provided, unless authorized by a vote in favor thereof by a majority of the electors of the city." It being affirmatively shown and by the demurrer confessed that there were more than 1,700 duly qualified electors in such municipality at the time of the election and that but 833 voted in favor of the bonds, no question is presented as to the manner of determining what constitutes a majority of all its electors and for a reversal appellant relies measurably upon the fact that the issuance of the bonds has not been "authorized by a vote in favor thereof by a majority of the electors of the city." Such constitutional or statutory language as "a majority of the electors of the state voting at the election," "two-thirds of the votes of a county voting at an election," "a majority vote of the electors of the county" and other similar expressions relating to state and municipal affairs the validity of which is made to depend upon a majority vote, have been construed to mean a majority of the votes cast, and not a majority of all the qualified voters in a state, county, or other voting precinct to be affected thereby. Shearer v. Board of Supervisors, 128 Mich. 552, 87 N.W. 789; State ex rel. Davis v White, 162 Mo. 533, 63 S.W. 104; Chamlee v. Davis, 115 Ga. 266, 41 S.E. 691.

Pursuant to article 9 of the Constitution a proposition to change the boundaries of two organized counties must be submitted to the electors thereof at a general election "and be adopted by a majority of the votes cast in each county at such election." As to an election for the relocation of a county seat not previously located by a majority vote, "the place receiving a majority of all the votes cast at that election shall be the county seat of said county," and while it requires a petition signed by a majority of all the legal voters of the county to authorize any subsequent submission of the question to the people it is always the number of votes cast that decides the proposition to establish or change the location of a county seat. So, upon the submission of a great many other questions to the people under the provisions of the Constitution, including amendments thereto, the number of votes cast upon the proposition is expressly declared to be decisive and in order to give any effect to the provision under consideration a distinction must be made between an act inhibiting the creation of a debt by a city until authorized by a vote in its favor by a majority of the electors of such city and such provisions as authorize the performance of acts by a majority of the votes cast.

Clearly, the constitutional restriction is intended to prevent the creation of a debt by a city for any of the purposes specified, without the concurrence of a majority of the qualified electors therein manifested by an affirmative vote in favor of the proposition. So, a majority of those voting is not sufficient, but a majority of all the electors of the city of Aberdeen was vitally essential to the validity of the bonds and in construing constitutional and statutory provisions much less favorable to this view than our own it has been so decided by the courts as follows: Southerland v. Goldsboro, 96 N.C. 49, 1 S.E. 760; People v. Chapman, 66 Ill. 137; State ex rel. v. Harris, 96 Mo. 29, 8 S.W. 794; In re Denny (Ind. Sup.) 59 N.E. 359, 51 L. R. A. 722.

Consistent with what seems to be the weight of well-reasoned authority and upon...