State ex rel. Wagner v. Summers

GATES, J.

The city of Yankton is a city under the commismission form of government, viz., under chapter 86, Laws 1907, and the acts amendatory thereof. On June 2, 1913, the board of commissioners of Said city, granted to a certain individual a permit to sell intoxicating liquors at retail in said city. On June 4, 1913, there was presented to defendant as city auditor, a petition signed by relator and others, in number more than 5 per cent, of the -legal voters of said city, requesting said defendant to submit •the motion or resolution by which said permit was granted to the vote of the electors of said city for rejection or approval. The defendant neglected and refused to call an election therefor. U-pon the affidavit of tire relator settling- forth the facts, the trial court, on June 23, 1913, issued an alternative writ of mandamus requiring the defendant to call such1 election, or to show cause to the contrary. Upon the hearing the ■ defendant moved to quash the writ on the ground that the same did not show or recite facts sufficient upon which to issue a writ of mandamus. The trial •court granted said miotion, and entered judgment dismissing- the proceeding. From such judgment relator appeals.

*47 Appellant contends that the defendant, being, a ministerial officer,' cannot be heard to question the constitutionality of the statute under which this proceeding is brought. In view of the decision at which we have arrived, it becomes unnecessary to determine that question. It is, however, one that, is certainly not frivolous.

The only other question presented for our consideration is whether the act of granting -such permit can lawfully be referred ¡to the electors for their rejection or approval.

Section i of Article 3 of the sítate Constitution as adopted in 1889 provided: “The legislative power shall be vested in a legislature which shall consist of a senate ¡and house of representatives.” At the general election, in 1898 the electors of this stale adopted an amendment to said section covering' the features popularly known as the initiative and referendum. South Dakota was ■the first state in the Union to adopt them. Said section, ¡as then amended and as now in force, reads as follows: “The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives, except that the people expressly reserve to themselves the right to propose measures, which measures the Legislature shall enact and submit to-a vote of the electors of the state, and also the right to require that any laws which the ■ Legislature- may have enacted shall be submitted ;to a Vote oif the electors of the state before going into effect (except such laws- as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and' its existing public .institutions), Provided, that not - more than five per centum of the qualified electors of the state shall be required to invoke either the initiative or the referendum. This section shall not be -construed so- as to deprive the Legislature or any member thereof -o-f the right to propose. any measure. ' The veto- power of the executive shall not be exercised as to measures referred to a v-o-t-e of the people. This section shall apip-ly to municipalities. The enacting clause ¡of all laws approved by vote of the elector's of the state shall be: ‘Be it enacted by the people of South Dakota.’ The Legislature shall make suitable provisions for carrying into effect the provisions of ■this section.” A slight difference in wording and punctuation is noticed -between, the amendment as adopted and as appears in the *48 session la-ws of 1903 and subsequent years. We 'have quoted the former.

At its next session after the adoption of said amendment, viz, the session of 1899, the Legislature enacted chapter 93 (sections 21-27, Code), which related directly to> measures enacted or to ‘be “enacted and submitted” by the Legislature; and chapter 94 (sections 1214-1228, Pol. Code), which related to municipalities-. In 1907 the Legislature enacted chapter 86, providing for the incorporation of “Cities, under -Commission.” Sections 39-53 of sai-d chapter -relate to-, the -initiative and referendum. Section 39 of said act is a-s follows: “Sec. 39. Law's, Ordinances Take effect — -When. No- Law, ordinance or resolution, passed by the board of commissioners thereof, (except sudb are f-of the immediate preservation of the public peace, health, or safety, support of the city government and- its -existing public institutions), shall go into effeot until twenty -days after the passage and publication of -such law, -ordinance or res-olntion-, if the same be one which by law must be published, -and until twenty day's- after its passage if it be one -which is -not by law required to be -published, and the words law, ordinance or resolution used in this- article mean -ordinance's, resolves, orders, agreements, contracts, franchises- and any measure which it is in Ithe power of the board of commissioners of said city to enact.” This section differs from section 1214, Pol. Code, in tha-t the latter section provides-: “No law, -ordinance, or resolution, having the effect of law, for the government of any city or town! * * * shall go- into- -effect,” etc. It will be noticed that the italicised words “having the effeot -of law” are not contained iff the referendum feature of the law governing cities under commission.

[1] It i-s -contended by respondent; that the initiative and referendum are repugnant to a republican form of government, and hence that they violate section 4 -of article 4 of the- Constitution. of the United States. While the initiative and referendum as applied to the Legislature may raise the question as to- whether this state is now republican in its form- of government, such question- is not a- judicial question for the courts to determine, but is a political question s'ol-ely for the Congress to- determine. Pac. States Telephone & Telegraph Co. v. State of Oregon, 223 U. S. 118 , 32 Sup. Ct. 224, 56 L. Ed. 377 . It has been- decided in other *49 jurisdictions, and we agree .therewith, ¡that the provisions of the initiative and referendum as applied to municipalities do not raise the question as to whether a state is republican in its form of government. Eckerson v. City of Des Moines, 137 Iowa, 452 , 115 N. W. 177 ; In re Pfahler, 150 Cal. 71 , 88 Pac. 270 , 11 L. R. A. (N. S.) 1092, 11 Ann. Cas. 911; Walker v. City of Spokane, 62 Wash. 312 , 113 Pac. 775 , Ann. Cas. 1912C, 994; Kiernan v. City of Portland, 57 Or. 454 , 111 Pac. 379 , 112 Pac. 402 , 37 L. R. A. (N. S.) 339.

It is not contended by respondent that the granting of a permit to operate a saloon .comes under th-e parenthetical clause of section 39, c. 86, Raws 1907, viz. “(except such as are for ithe immediate preservation of the public peace, health, or safety, support of the city government, -and its existing public institutions) but it is contended by respondent that the granting of such- permit is not a law .and does not have the effect! of law, and that in so far -as said section 39 is broader than the constitutional reservation, if is null and void. If the legislature had the authority to enact said section 39, it becomes immaterial whether the action of th-e city commission, sought to- be referred is a law or has the effect of law. The -solution -of the question- at issue then' depends: First, upon the authority of the Legislature (either under the initiative and referendum amendment to the -Constitution' or independently thereof) to enact -said section 39; and, second, upon whether the granting of such permit comes within the provisions of said section 39.

[2] It is elementary that the legislative power of the- Legislature is unlimited except as it is limited by the state Constitution and federal Constitution.

[3] Tt is also elementary that while the federal Constitution is viewed as a grant of power to Congress, the -state Constitution is not a grant of ¡power, but is a limitation- upon the powers of the Legislature. In the case of In re Watson, 17 S. D. 486, 97 N. W. 463 , 2 Ann. Gas. 321, this court said: “It should be -constantly borne in mind that there are no limitations upon the legislative powers of the Legislature in this state, except such as are imposed by the state and federal Constitutions; that no legislative act should be declared unconstitutional unless the conflict be *50 tween its provision© 'and some principle oif constitutional law is -so plain and palpable as to leave no reasonable doubt of its validity.”

Judge -Cooley in’ his work on Constitutional Limitations (7th Bd.) pp. 126-128; says: “In -creating a legislative department a-nd conferring upon it the legislative power, the- people must be understood -to- have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions- as they may have seen fit to impose, and to the limitations which are contained in -the-Constitution of the United States. The legislative department is noit made a -special agency for the exercise of specifically defined legislative p-ow-ers, but is- i-ntru-sted with, the general authority to make laws at discretion.” Many other and similar -citations might be given, but we will only- call attention (to two, viz., State ex rel. Schrader v. Polley, 26 S. D. 5, 127 N. W. 848 , and State ex rel. Simpson v. City of Mankato, 117 Minn. 458 , 136 N. W. 264 , 41 L. R. A. (N. S.) 111.

[4] The object of the constitutional amendment, as well as its effect (so- far as concern© the referendum) was not to grant the power to- the Legislature to -authorize Ithe referendum. The Legislature already had that power. Whether, in view of the previous lodging of the legislative power in IShie Legislature, it was necessary for a constitutional -amendment in order to -authorize the initiative, and whether in that r-espect there- is ’any diflereiTce between the initiative a's- applied to the Legislature and as applied to -munioi-paMlties, are questions which we are not -called upon to discuss or decide. They involve the principle" of the delegation of legislative power, with which we are not concerned in -this case.

[5] The exercise of the referendum is not an exercise of -delegated 'legislative power; it i© in effect the exercise of -the veto- power. While Ithe Legislature already had the -power ten authorize the referendum, -the people 'had no -method of compelling the Legislature to exercise that power without -amending the Constitution. To obviate this difficulty the referendum- clause of the Constitution was adopted.

[6] Can it be doubted that prior to the adoption of that amendment the Legislature might have enacted a law providing *51 that no permit to operate a saloon should be effective until it had been ratified by the electors of the city? This question must be answered in the negative unless there is something in the Constitution that limits the authority of the Legislature. We have studied the various provisions of the state Constitution carefully and minutely, and are unable to find a single restriction of that nature upon the legislative authority. Let us consider an instance in which the Legislature, prior to the constitutional amendment of 1898, made provision for the submission of questions to the vote of the electors of a city. By subsection 5 of section x of article 5 of chapter 37, Laws 1890, it was provided that city bonds could not be issued unless authorized by a vote of the legal voters. There Was then no constitutional provision requiring- such vote. Can it be claimed that such provision was unauthorized? Again by section 15, art. 16, c. 37, Laws 1890, the majority of the owners of property liable to be assessed for local improvements could stop work by protest filed. Was this provision an unlawful exercise of ¡the power of the Legislature? We -think not. We can in fact find nothing in -the Constitution that would prohibit the Legislature from providing f-or the government of cities- by “town meeting,” as- in the case of -civil townships, i’f the legislature in its wisdom so decided. We conclude, therefore, that the Legislature -did have the power, independently of the constitutional amendment of 1898, to enact said -section- 39 of chapter 86 of the Laws of 1907.

[7-8] It is also entirely clear that such amen-ddi-ent did not by implication limit or restrict the power of the Legislature, to authorize the referendum -in, municipalities', solely to- laws -or matters having the effect -of law. The only limitation • imposed by this amendment upon the Legislature -relative to its power to -enact laws for the -submission to the electors of a municipality of -any question relating to- the government or control of -municipal affairs in any respect -is that after the adoption of the- amendment the Legislature co-uld pass no act that would- prevent the submission of municipal -laws -o-r municipal measures having the effect of law to a vote of -the electors of a municipality, except -such as may be necessary for the immediate preservation of the- public peace, health, or -safety, or for the support of the city government -and its existing public institutions. But respondent earnestly -contends that *52 there must be some limit to- character of the acts which may be referred to the electors of the city for their rejection or approval. If wfe are; right in our conclusion that the only limitation of that kind upon- the Legislature was to prevent it from authorizing the submission of measures that may be necessary for the immediate preservation of the public -peace, health, safety, etc., it seems clear that the Legislature in its wis-dom must be left to prescribe what acts (not within the exception) may be referred, and that courts are without authority to- declare limitations1 where none are prescribed by the Legislature. If other limitations are deemed wise or salutary, the Legislature alone can so- declare. Whether •the power of referendum ma)r be,abused or unwisely exercised, to-the embarrassment or injury of individuals or the public, is not íeft bq -the counts to determine. They can only 'declare the •law as it is written in the statute. Where the Legislature has ■declared no limitations the counts1 are without, power to write them in the law. We might concede all the ■ ills foreseen by respondent’s able counsel, but yet .the courts cannot remedy them. The Legislature alone o'atn prescribe limitations. In some instances, no doubt, counts, in laudable ¡attempts to- avoid the. ills resulting from defective or ill considered legislation have almost, ■if not quite, transcended the limitations- upon judicial power, and the charge of “judicial legislation” has come up from- those who have sought to benefit through such laws, and -it has become popular to denounce- “court made law's.” In -our judgment the time lias come when courts should decline the- ta'sk of attempting-, by construction, to add to defective legislation, • or ito eliminate or limit provisions which work public or private injury. They should interpret the law as it is written, and not otherwise.

[9] We come now to the question- as ¡to whether the granting of such permit comes within the provisions of said section 39. While under -the general -law as defined in 'section 1214, Pol. Code, in order to authorize the referendum, ordinances, resolves, orders, agreements, contracts, etc., must probably be suich as have the effect of law, -there is -no such restriction in said section 39 governing cities undier commission. By said iseotiom all law's, 'ordinances, and resolutions are subject to the- referendum, except those that are for the immediate preservation, of the public peace, health, or safety, or far the support -of the city government and its ex *53 isting public institutions. It being conceded, as it must be, that the granting of such permit is not :an act coming within said 'exception, the question is whether the action of the board of commissioners in granting- such permit was in effect a l'aw, ordinance, or resolution. If it was either of these, then it was subject to the referendum. As we have seen, it is unnecessary to determine whether or not it was a law. It was clearly not an ordinance. Was it then a resolution? We are of the opinion that it was.

Paragraph 5 of the alternative writ reads as follows: ‘''5. That on June 2, 1913, the Board of Commissioners of said city of Yankton, passed and adopted a motion or resolution granting the application of William Poppe for a permit to sell intoxicating liquors at retail in the city of Yankton, and instructing the said city auditor to issue the said permit in pursuance to said motion or resolution, which motion or resolution was -as follows:

Moved by Commissioner Danforth that the application of Wiliam Poppe for a permit to sell intoxicating liquors at retail in the city of Yankton be granted, and the city auditor he instructed to issue permit. ” While couched in the language of a motion, it was in effect a determination of that body. Webster’s New International Dictionary defines the word “resolution” ais follows: “A formal expression of the opinion or will of an official body or a public assembly adopted by vote.” Said word is defined in Black’s Law Dictionary, p. 127, as follows : ‘The determination or decision, in -regard to its opinion or intention, of a deliberative or legislative body, public assembly, town council, board of directors, or the like. Also a motion or formal proposition offered for adoption by such body.” Webster’s New International Dictionary -also defines the word “motion” as follows : “A proposal or suggestion looking to action or progress; esp., a formal proposal made in a 'deliberative assembly.” In the latter use, the term then would seem, to be synonymous with the word “resolution.” The motion as recorded embodied both the motion and tire resolution. In adopting that .so-called motion the hoard of commissioners' thereby 'determined to' grant the permit. The effect wlas the -.same .as if a formal written resolution had been presented and adopted. Section 2858, Pol. 'Code, pronounces the action of the governing body of 'the city by which such permit is authorized to be a “determination.” In McDowell *54 v. People, 204 Ill. 499, 502 , 68 N. E. 379, 381 , the Supreme Court of Illinois has rendered the following definition: “A resolution or order is riot a law, but merely the form in which the legislative body expresses ah opinion.” See, also, City of Antonio v. Mickeljohn, 89 Tex. 79, 82 , 33 S. W. 735 ; Jones v. McAlpine, 64 Ala. 511, 513 ; El Paso Gas, etc., v. City of El Paso, 22 Tex. Civ. App. 309, 312 , 54 S. W. 798 ; Sawyer v. Collins, 148 Iowa, 712 , 127 N. W. 1015 ; 7 Words and Phrases, p. 6173. In City of Spokane v. Ridpath, 132 Pac. 638 , the Supreme Court of Washington said: “1M is true that this action -of the council appears in the record in the form of an informal motion made 'and carried, rather than in the farm of a resolution. It seems, however, that in substance there is' no difference between, a resolution- and a motion. Indeed-, the terms are practically synonymous.” In Sawyer v. Lorenzen, 149 Iowa, 87 , 127 N. W. 1091 , Ann. Cas. 1912C, 940, the Supreme Court of Iowa held the following to be a resolution: “Motion lriade and seconded that Loreozen & Weise be granted liquor license on lots 1 and 2. Carried.”

Another distinction is noticed between the provisions of the referendum law governing cities generally and those governing cities under commission. In the former case the act of the city council does not “go info effect until twenty days -after the passage of such law, ordinance, or resolution.” In .the latter -case the aot o-f the- board of commissioners' does riot “go into effect until twenty days after the passage and publication, of such law,, ordinance, or resolution, if the same be one -which by law must be published, and until twenty daj's after its passage if it be one which is not by law required to be published-.” This definite- inclusion- of the less formal acts — i. e., those t-h-at are not required by law to be published — would -seem to plainly indicate that the words ‘‘having the effect of law” were intentionally, omitted from .said ■section 39, and that it was intended by the legislature to make all resol'Uftionls of the board of commissioners subject to ‘the referendum except those mentioned' in ithlalt section.

We are further Confirmed1 in -our view as -to the meaning of the word “.resolution'” in -the above-mentioned section 39 of the law governing cities under Commission., because an' -examination of chapter 86, L'aws 1907, in its 'entirety reveals little or nothing* to which the word “resolution” miay be applicable, unless it be in *55 terpreted in accordance with .the (above decision and citations. The granting of such permit being subject to the referendum-, it follows that the count -erred- in dismissing the proceeding.

The judgment of the trial court ii-s reversed and the c-aus'e remanded, with directions to -issue the peremptory writ of mandamus pfay-ed for.