This wаs an action in equity, asking the court to determine the rights of the parties under a contract and enter a declaratory judgment. The district court found generally for the defendant and intervener, and dismissed plaintiff’s petition, and plaintiff appealed.
Plaintiff filed his petition on July 12, 1940, alleging that the defendant city, by ordinance No. 537, enacted April
Plaintiff commenced work under the contract, and on July 9, 1940, at a regular meeting of the council, presented an estimatе of the work performed under said contract, showing 2,000 cubic yards of dirt excavated at 35 cents a cubic yard, the claim being for $560, or 80 per cent, of the amount of the estimate, which claim was disallowed by the mayor and council. On July 1, 1940, there was filed with the city clerk a petition, signed by 714 persons, of which 593 were registered voters, which petition asked that plaintiff’s contract be referred to the voters fоr rejection or approval.
Plaintiff contends that his contract is in full force and effect, and that the petition for a referendum is ineffective, for the following reasons: (1) That the initiative and refеrendum does not refer to contracts of the character involved herein, but only to contracts for the government of the city; (2) that the contract entered into became effective June 30, 1940, and that the referendum petition was filed too late to entitle the question- to be submitted to the voters; (3) that the petition filed was void because at least ten persons signing same failed to make оath before a competent officer that they were duly qualified voters.
Plaintiff alleges that, unless the court adjudicates the rights of the parties under the contract, it is unsafe for plaintiff to continuе under said contract, and therefore prays the court to render a declaratory judgment as to the rights and obligations of the parties.
On August 1, 1940, Gilbert I. Godsеy, having received leave of court, intervened and filed an answer, in which the intervener denied that said contract is in full force and effect, denies that plaintiff is entitled to proceed with, the pаving, denies that plaintiff is entitled to be paid as provided in the contract, and alleges that by reason of the filing of the petition the question of the acceptance or rejection of thе contract must be submitted to the voters, and that the operation of said contract must be suspended until the next general city election. On August 5, 1940, plaintiff filed reply to the answer of the intervener.
Said cause was tried August 5, 1940, in the district court and taken under advisement, and journal entry was filed on August 10, 1940, finding that on May 31, 1940, the mayor and city council accepted bid of plaintiff as alleged, and his bond was duly approved, and that the plaintiff had performed certain work set forth in paragraph No. 8 within 30 days after the acceptance of the bid; that a referendum petition was filed on July 1, 1940, and that 593 registered voters signing the same are more than 15 per cent, of the total registered voters of the city of Scottsbluff.
The court finds that the work done by the plaintiff described in his petition was done within 30 days after his bid was accepted. As conclusions of law, the court finds that the initiative and referendum as adopted by the city of Scottsbluff applies to such contract; that while 30 days from the date of the passage of the motion by the city council accepting the bid expired on June 30, which was Sunday, the referendum petition, which was filed July 1, 1940, was filed within the time as provided by law.
The court further finds that the work done by the plaintiff, described in paragraph 8 of his petition, was done when said contract was not in full force and effect, and
In the motion for new trial, plaintiff sets out that the court erred in holding that the initiative and referendum applies to plaintiff’s contract; that the court erred in holding that, while 30 days expired June 30, 1940, the last day being Sunday, the petition filed July 1, 1940, was filed within time as provided by law; that the court erred in holding that the work done by plaintiff was done when the contract was not in full force and effect, and therefore plaintiff could not recover for said work under the terms of his contract; and, lastly, that the judgment of the court is contrary to the evidence and contrary to law.
The faсts are undisputed that the city of Scottsbluff created a paving district by ordinance. The abutting property owners did not agree upon or ask for any particular type of paving, therefore the mаyor and council determined the type which should be used in this contract.
The first contention of the appellant is that this was not a legislative act, but just an administrative act, and therefore it was not subject to the referendum petition.
“It is the general rule that initiative and referendum provisions are applicable only to acts which are legislative in character, and are not applicаble to those dealing with administrative or executive matters.” 122 A. L. R. 769, Ann.
This court in Schroeder v. Zehrung,
In an Oklahoma case the county commissioners ordered the clerk to advertise for bids for the construction of a bridge, and it was held that the power of referendum reserved to the legal voters of a county was applicable only to laws or legislative аction as distinguished from administrative or executive action. Brazell v. Zeigler,
In Monahan v. Funk,
“Notwithstanding the broad language of these and other statutes, the courts have uniformly recognized the distinction between acts that were legislative and those that were administrative, and have said that the initiative and referendum applied only to the former.” Murphy v. Gilman,
“Both legislative and executive powers are possessed by municipal corporations. Often executive pоwers are vested in the council or legislative body and exercised by motion, resolution or ordinance. Executive action evidenced by ordinance or resolution does not subject such aсtion to the power of the referendum, which is restricted to legislative action as distinguished from mere administrative action. The form or name does not change the essential nature of the real step taken. The mode of effecting the action is not important. If legislative the law contemplates the people may invoke the referendum. The referendum is usually held ‘applicable tо all ordinances and resolutions which constitute an exercise of legislative power.’ That is, it was designed to be directed against ‘supposed evils of
In the opinion of the court, the action of the mayor and city council taken on May 31, 1940, accepting the bid of the plaintiff and entering into the contract, was an act which was purely administrative in character, unmixеd with the exercise of any legislative power.
That being our conclusion, the act was not subject to referendum, and the other objections need not be discussed. The judgment is reversed and the cause remanded for further action in the premises.
Reversed.