21 S.D. 18 | S.D. | 1906
This is an appeal by the defendants from a judgment entered in certiorari proceedings by the circuit court of Minnehaha county annulling a resolution of the city council and the action of the city auditor of the city of Sioux Ralls submitting to the electors of said city at a special election a resolution, previously adopted by said city, directing that a contract be entered into between the plaintiff and said city for furnishing power for city lighting. It is disclosed by the record: That at some time prior to the isth of September, 1905, the plaintiff submitted a proposition to the city council of Sioux Falls for furnishing the power for city lighting required by it for lighting its streets upon certain terms and conditions therein specified. That on said day city council adopted the following resolution: “Resolved, that contract for furnishing power for the city lighting be awarded to the Sioux Falls Electric Light & Power Company according to the terms of their bid: provided that said firm make use of the dynamos owned by the city and pay therefor annually a sum equal to six (6) per cent, of their appraised value; also that said firm pay the city additional for use of the dynamos such sum as the difference amounts to between the appraised value thereof at the time of letting this contract, and the time of expiration of contract the time of said contract to be five or ten years, ■ at the option of the city of Sioux Falls.” That in pursuance of said resolution a contract was entered into on the same day between the city and said plaintiff, in accordance with the proposition made by the plaintiff and as modified by the resolution. That subsequently, on the .30th day of September, three petitions were filed in the office of the auditor of said city, addressed to such auditor, purporting to be signed by the required number of electors, and demanding that said resolution and contract be submitted to a vote of the people, but verified by only five electors. That on the 13th day of October the city council, assuming to act upon such petitions, adopted an ordinance, the first section of which, is as follows: “Be it ordained by the city council of the city of Sioux Falls, South Dakota, that a special election be held in and for the said city of Sioux Falls, on the 27th day of October, 1905, for the purpose of submitting to the legal voters of said city of Sioux Falls, for adoption or rejection, the
It is contended by the respondent, in support of the judgment of the learned circuit court, that (1) the city council had no authority to submit the resolution and contract to the electors at a special election for the reason that no such power is conferred upon the council; (2) that the three petitions were verified by only five persons, whereas, under the law, each of the three petitions should have been verified by five voters and petitioners, who signed the petition, in order to authorize the auditor to submit the same; (3) that the resolution and contract in controversy in this action are included within the exception in section 1214, Rev. Pol. Code, as expenditures for the ordinary current expenses of the city; (4) that, the contract having been executed by the order of the city council, it could not be annulled, except by the consent of the respective parties. It is contended by the appellants that (1) the city council possessed the power of submitting the resolution and contract in controversy to a vote of the people independently of any petition; (2) that, if a petition was required to set in motion the said city council, the petitions in this case were sufficient, as, being attached together, they in effect constituted but one petition and its verification, therefore, by five voters, was a sufficient compliance with the law; (3) that, if the proceedings were not so far regular that the city council might be compelled by mandamus to submit the resolution and contract to a vote of the people, yet, the city council having acted, its action was within its jurisdiction and could not properly be declared void under the certiorari proceedings.
In our opinion the judgment of the court below was right upon the first ground stated by respondent in its contentions. Article 4, c. 14, of the Revised Political Code, embracing sections 1214 to'
We are unable to agree with counsel for appellants in their contention that the city council possessed the inherent power of submitting the resolution and contract to the electors of the city, independently of any law expressly conferring upon the council authority so to do. We do not understand that a city council has authority to submit any law passed, or resolution or ordinance adopted, to> the electors of the city, either at a general or special election, unless expressly authorized so to do by the lawmaking power, and the Legislature has not conferred upon the city council any authority to submit the same to the electors, either with or without a petition, but has conferred this authority solely upon
It will be observed by the language of the sections heretofore referred to that the power to submit any law, ordinance, or resolution passed or adopted by a council is conferred upon the auditor alone, and when, a proper petition or petitions are filed in a proper case, it is made his duty to publish the law, ordinance, or resolution, and thereafter submit it to- a vote of the electors. The only power conferred upon the city council to' submit any law, ordinance,
The contention of appellants that the judgment of the court below should be reversed for the reason that the city is named as a party defendant in the judgment, although not made a party defendant in either the writ or return thereto, cannot be sustained,
As the judgment of the circuit court must be affirmed for the ■reasons above stated, we do not deem it necessary or proper in this opinion to pass upon the other questions presented by this record, and therefore express no opinion in regard thereto.'
The judgment of the circuit court and order denying a new trial are affirmed.