22 S.D. 505 | S.D. | 1908
This is an appeal by the plaintiff from findings and judgment in favor of the defendants. It is disclosed by the record that a special election was held in the city of Plankinton on July 16, 1907, to determine the question of whether or not bonds to the amount of $8,000 should be issued for the purpose of constructing a system of sewerage. At the election 144 votes were cast, of which 75 votes were in favor of the issuing of such bonds, and 66 against issuing the same, and thereupon the city council decided that a majority of the voters of the city had voted in favor of the issuing of the bonds, and were proceeding to issue the same when an action was brought by the plaintiff, a taxpayer of said city, to enjoin their issue. Plaintiff claimed that while a majority of the voters’ votes cast had been in favor of the issuing of the bonds, a majority of the electors of the city had not so voted. No other question was voted upon at this special election. On the trial of the injunction action the plaintiff offered in evidence the biennial registration list required by the statute of the state, being the regstration list of the city of Plankinton next preceding the election of July 16th, which registration list shows that the number of registered voters in the city was 170. The plaintiff also offered in evidence the pollbooks of the city of Plankinton at the last municipal election preceding the election which was held on Julv 16th, and which shows that 166 voters voted at such municipal election in the city. The plaintiff also offered in evidence the registration of voters taken by the city assessor between the 16th of May and the 22d, of May, 1907, in the city of Plankinton, which shows the number of voters in the city at that time to be 171. The defendant' objected to all of this evidence as- being incompetent, irrelevant, and immaterial, and the objections were sustained by the court, and the evidenceexcluded, to which 'thfe plaintiff excepted.
It will thus be seen that the only question presented for the determination of this court is as to whether or not the court erred in excluding plaintiff’s evidence, offered for the purpose of showing that there were more than 150 legal voters residing in the city of Plankinton at the time of the holding of said special election, and in the finding of the court that the 75 votes cast in favor of the issuance of the bonds was a majority of the votes upon which the city council was authorized to issue the bonds. It is provided by section 4, art. 13, of our state Constitution that: “The debt of any county, city, town, school district, civil townsip, or other subdivision, shall never exceed five (5), per centum upon the assessed value of the taxable property therein. * * * Provided, further, * * * no such debts shall ever be incurred for any of the purposes in this section provided, unless authorized by a vote m favor...thereof by a majority of the electors of such county, municipal corporation, civil township, district or subdivision incurring the same.” .
. It is contended by the plaintiff and. appellant that, under the provisions of the Constitution, no bonds can be issued creating a debt upon the. city unless the .same has. been .authorized,by a majority, of the electors of said.city, and that in case.of a.speqal election it must affirmatively appear,,to authorize, the. .issue ,qf; boncjs
We are inclined to take the view that the respondents are right in tlieir contention. Counsel for the plaintiff contends that their view is sustained by the decision of this court in the case of
In the case of State v. Stakke, 22 S. D. 228, 117 N. W. 129, in speaking of the case of Williamson v. Aldrich, supra, this court says: “In the absence of a more reliable method for determining the number of voters in any township, town, or city, qualified t-~ vote at a special election duly called for the purpose of submitting a single proposition, it may doubtless be assumed that all qualified voters remaining away from such election thereby assent to and concur in the expressed will of the majority of those present and voting at the election. This criterion makes the votes found in the ballot box and correctly canvassed conclusive as to the number of voters in the electoral district, and a favorable vote in excess of one-half the aggregate number of votes thus returned is sufficient to carry the single proposition, although the statute provides that it must receive in its favor the vote of a majority of the qualified electors of such district. However, this numerical test should not be employed to determine the result of the vote on any proposition submitted with other propositions, or at an annual election for the selection of municipal officers, when the returns show that the majority of the votes cast on the proposition is less than a majority of the highest number of votes polled at the election, which, in the absence of better evidence, may be deemed the expression of the aggregate number of qualified voters in the city.” In the case of State v. Stakke, supra, the vote taken upon the proposition of authorizing the sale of intoxicating liquors was taken at the general
It seems to be settled by the great weight of authority that courts will presume that all electors failing to vote at an election assent to tire affirmative vote, as shown by the returns of the election ; and in our opinion it is not competent for a taxpayer tO' show, either by the registry list or by the testimony of witnesses, that there were qualified electors of a municipality which failed to vote at such election, for the purpose of showing that 'a majority of the electors have failed to vote in favor of any proposition submitted to the electors, and we are of the opinion, further, that in the absence of an affirmative showing, either by the admission of the parties or the result of the vote at the election for other officers, upon other propositions submitted, the vote appearing to have been given at the election, if in favor of the proposition, is conclusive, and cannot be questioned in any collateral ¡proceeding. This seems to be the view taken by the Supreme Court of the United States in the case of the County of Cass v. Johnston, 95 U. S. 360, 24 L. Ed. 416, and in that case the learned Supreme Court of the United States says: “This we understand to be the established rule as to the effect of elections, in the absence of any statutory regulation to the contrary. All qualified voters who absent themselves from an election duly called are presumed to assent to the express will of the majority of those voting, unless the law providing for the election otherwise declares. Any other rule would be productive of the greatest inconvenience, and ought not to be adopted, unless the legislative will to- that effect is clearly expressed.”
And in the later case of Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, that court again considers the question arising upon the Constitution and laws of the state of Mississippi, and after quoting the Constitution of that state, which reads as follows:
Our conclusion is that the court was clearly right in excluding the evidence offered, and in holding that, inasmuch as a majority of the votes cast at the election were in favor of the proposition,, the city council was authorized to issue the bonds in controversy.
The judgment of the circuit court and order denying a new trial are affirmed.