State ex rel. Card v. Gray

GAiTBS, J.

This is an original action, in which it is sought to have two elections held in -Rapid City under the provisions of sections 6231 and 6234, Rev. Code 1919, declared null and void, and to enjoin the defendants, among other things, from issuing certificates of election to the nine, commissioners said’ to have been elected -under the latter section. 'Sections 6231-6234, Rev. Code 1919, being article 7, c. 3, pt. 8, tit. 6, of the -Revised Code, embrace what is commionly called’the City Manager Law.

[1] It is urged that this law violates Const, art. 3, § 21, in that it embraces more than one subject, and that the provisions of the law are not indicated in the various headings of “Title,” “Part,” “Chapter,” and “Article.” The sections particularly attacked by plaintiff are sections 6233, 6234, 6233, and 6240. The title to the act adopting Rev. Code 1919 (as disclosed ¡by chapter 300, Laws 1919) is “An act to provide a Revised Code of South Dhkota.” This is a sufficient title to cover all of the subject-matter of the Revised Code, and complies with Const. art. 3, § 21. Wilson v. Western Surety Co., 31 S. D. 175, 140, N. W. 263; J. P. Schaller Co. v. Canistota Grain Co., 32 S. D. 15, 141 N. W. 993 ; State v. Devers, 32 S. D. 473, 143 N. W. 364 ; State ex rel. Kronschnabel v. Issenhuth, 34 S. D. 218, 148 N. W. 9 ; Street v. Farmers El. Co., 34 S. D. 523, 149 N. W. 429 ; Murphy Liquor Co. v. Medbery, 35 S. D. 589, 153 N. W. 654 ; State v. Horner, 35 S. D. 612, 153 N. W. 766 . Tt is therefore immaterial whether the several subordinate headings indicate the intent and purposes of the article.

[2] It is urged that section 6234, Rev. Code, is unintelligible and uncertain, in that it provides that at the organization the -board of commissioners shall elect one of their number to act as mayor until the first regular meeting of May of the ensuing year (which in the instant case would be until May, 1922), whereas it also provides for the election of mlayor at the May meeting in each year (which would require an election of mayor *63 also in May, 1921!). It is sufficient to state that this anomaly does not affect the constitutionality of the section, and the difficulties that may arise therefrom are not now before us.

[3] It is urged that the portion of section 6234, Rev. Code 1919, wjhidh provides that the newly elected board shall succeed the board of comtaissioners then serving violates Const., art. 6, § 2, which provides that “no person shall be deprived of life, liberty, or property without due process of law.” The precise point urged is that the Legislature cannot remove officers of a city during the term for which they are elected without abolishing the office. The fallacy of the argument lies in the assumption that the office has -not been abolished. The city of Rapid City has heretofore been governed by a board of three commissioners under the provisions of section 6226, Rev. Code 1919. The office of commissioner, as one of nine commissioners provided under section 6234, Rev. Code 1919, is a separate and distinct office from! that provided under section 6226, Rev. Code 1919. When the newly elected board of nine assume office, then the office of commissioner of Rapid City under section 6226, Rev. Code 19x9, will have been abolished.

[4] Attention is called to chapter 17, Laws 1921, which purports to legalize the said election proceedings. In the view we take of this case no attention need be given to that act.

Finding no grounds for granting the injunction sought, the action will be dismissed, and the temporary restraining order vacated.