This is an original proceeding in this court seeking a writ of mandamus. The plaintiff demurred to the return of the defendant, city auditor, and the demurrer was overruled. See state ex rel Goodhope et al v. Leyse, City Auditor, 60 S.D. 384, 244 N.W. 529, 531. After the demurrer was overruled the proceeding was referred to a referee to take evidence and to make his findings of fact and conclusions of law. The referee has acted, and the case is now before us upon objections filed by the plaintiff to the findings of fact and conclusions of law of the referee. This court in its prior opinion herein stated "that the action of the auditor becomes final, except in the event that the auditor has
abused his discretion by acting fraudulently or arbitrarily." The referee found "that the defendant in his examination of the amended petition, and in the making of his certificate thereon, and in his determination of the number of signers of said petition who were qualified electors of the city of Sioux Falls, and the number who were not qualified electors of the city of Sioux Falls, acted in good faith, and did not act fraudulently or arbitrarily." No useful purpose would be served in attempting to detail the evidence. We have carefully reviewed the evidence taken before the referee, and believe the above-quoted finding is sustained by the evidence.
We are of the opinion that the findings and conclusions of the referee should be confirmed and approved, and the same hereby are in all things confirmed and approved by this court, and judgment dismissing the proceedings upon its merits will be entered thereon.
RUDOLPH, P.J., and POLLEY, CAMPBELL, and WARREN, JJ., concur.
It is my opinion that the writ should issue for the reasons which prevented my concurrence with the majority in the former opinion, 60 S.D. 384, 244 N.W. 529, and I therefore respectfully dissent.