Christensen v. Carson

533 N.W.2d 712, 1995 S.D. LEXIS 68, 1995 WL 368329

Opinions

ROBERT A. MILLER, Chief Justice (on reassignment).

City appeals from trial court’s grant of writ of mandamus compelling a vote on an initiated city ordinance. We reverse and remand.

FACTS

The City Council of the City of Wessington Springs (City) seeks to establish a municipal airport. After a series of informational meetings, the Wessington Springs Municipal Airport project was included in the National Plan of Integrated Airport Systems on May 16, 1990. A local Airport Advisory Board was established on September 12, 1990. Appropriations for the airport project are included in the City’s annual budget. City hired consulting engineers to assist in planning the Airport. On August 5, 1991, City created its Airport Board under SDCL ch. 50-6. In a grant agreement with City, the Department of Transportation, Federal Aviation Administration (FAA), agreed to pay ninety percent of the planning costs for the project.

On November 4, 1991, the City entered into an Agency Agreement with the South Dakota Department of Transportation, providing that the development of the airport is in accord with the objectives and purposes of the State, for a public purpose, and to the benefit of the State. Although $18,892.47 has been spent on the airport project, only $1,889.24 are city funds.

Appellees Chris Christensen and Clifford Bergeleen (hereinafter collectively referred to as Christensen) presented an initiated petition to City on June 7, 1993, which stated:

AIRPORTS OR LANDING FIELDS

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WESS-INGTON SPRINGS, SOUTH DAKOTA, AS FOLLOWS:

SECTION 1. The City of Wessington Springs shall not acquire, establish, construct, own, control, lease, equip, improve, maintain, operate, or regulate any airports or landing fields for the use of airplanes or other aircraft within or without the corporate limits of the City of Wessington Springs, South Dakota.

SECTION 2. The grass landing strip the City of Wessington Springs has long had an interest in may continue to be used in the same manner as it has in the past, but it is otherwise subject to Section 1.

City rejected the petition as beyond the proper scope for initiated action. Christensen sought a writ of mandamus to compel a public vote on the proposed ordinance. The trial court denied Christensen’s request, holding that the initiated measure would im-permissibly abrogate legislative power given to the city by state statute.

On November 1,1993, Christensen submitted a new initiated measure to the city finance officer, which stated:

AIRPORTS OR LANDING FIELDS

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WESS-INGTON SPRINGS, SOUTH DAKOTA, AS FOLLOWS:

SECTION 1. The City of Wessington Springs, recognizing the discretionary authority granted in SDCL 50-7-2, hereby elects to cease any and all activities relating to the acquisition, establishment, or construction of a new airport facility or landing field, for a term and period of one (1) year from the date this Ordinance takes effect, in accordance with SDCL 9-20-17.

SECTION 2. This Ordinance is specifically not intended to abrogate any State Statute.

City rejected the petition as beyond the proper scope of the initiative process. Christensen sought a writ of mandamus to force the initiative to a public vote. The trial court granted the request for writ of mandamus, holding that the initiated measure only sought to delay implementation of legislative power granted to the city and did not abrogate the power itself. City appeals.

ISSUE

IS THE PROPOSED ORDINANCE WITHIN THE PROPER SCOPE OF THE INITIATIVE POWER?

We are asked to determine whether the proposed ordinance of November 1,1993, falls within the scope of the initiative process outlined in the South Dakota Constitution and SDCL 9-20-18 and -19. Statutory construction is a matter of law and we consider such decisions without deference to the decision of the trial court. Rural Pennington Cty. Tax Ass’n v. Dier, 515 N.W.2d 841, 843 (S.D.1994). We determine the intent of a statute from the statute as a whole, from its language, and by giving it its plain, ordinary and popular meaning. Id.

South Dakota Constitution, art. Ill, § 1, provides to the people the right to refer legislative acts to a public vote.

Footnotes

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* Municipalities are specifically subject to initiative and referendum. Id. Unfortunately, Christensen confuses the powers of initiative and referendum and mistakenly assumes that an initiative may be used, like a referendum, to repeal or amend previously passed legislation. Settled South Dakota law does not permit this result. The South Dakota Constitution, the South Dakota Code, and settled South Dakota case law clearly distinguish between initiative and referendum measures.

In Byre v. City of Chamberlain, 362 N.W.2d 69 (S.D.1985), we differentiated between an initiative and a referendum as follows:

Initiative is the constitutional reservation of power in the people to propose bills and laws and to enact or reject them at the polls independent of the legislative assembly. Referendum, on the other hand, is a right constitutionally reserved to the people of the state or local subdivisions thereof to have submitted for their approval or rejection any act, or part of any act, passed by the legislature which in most cases would, without action on the part of the electorate, become a law.

Id. at 79 (citing 82 C.J.S. Statutes § 115 (1953)). Initiative, then, refers to a proposal which originates with the people, while a referendum is a reaction to measures initiated by the government. Christensen’s petition was a reaction to City’s plan to establish an airport and, therefore, constituted a referendum rather than an initiative.

The distinction between initiative and referendum was further explored in Byre:

The purpose of the initiative is not to curtail or limit legislative power to enact laws, but rather to compel enactment of measures desired by the people, and to empower the people, in the event the legislature fails to act, to enact such measures themselves. The purpose of referendum is to suspend or annul laws which are not yet effective in order to provide the people a means of expressing their desire regarding a legislative proposition.... When the referendum is triggered, the people must approve a legislative proposition before it becomes operative as a law.

Id. at 79 (citing 82 C.J.S. Statutes § 115 (1953)) (emphasis added).

Christensen’s petition cannot be reconciled with the Byre court’s careful distinction between initiative and referendum. Here, the municipal governing body did not fail to act. On the contrary, the municipality had taken the initial steps toward establishing an airport. The effect of the petition by Christensen was to “suspend or annul” City’s existing efforts to establish an airport. Based on these facts and the definitions supplied by Byre, the petitions submitted by Christensen to prevent or delay development of the airport were referenda, not initiatives.

The importance of distinguishing between initiative and referendum petitions is evident in our own state constitution. Article III, § 1, of the South Dakota Constitution provides, in pertinent part:

The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted 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 of 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....

... This section shall apply to municipalities. ...

While the constitution reserves both initiative and referendum powers to the people, it excepts from the referendum process any laws which were enacted “for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions.” S.D. Const, art. Ill, § 1. This exception does not apply to the initiative process, id.; Byre, 362 N.W.2d at 79, presumably because initiatives are not intended to affect existing laws. If we were to allow the distinction between initiative and referendum to be blurred, as Christensen seems to suggest, voters could avoid the restrictions on the referendum power by simply fashioning their petition in the form of an initiative. We refuse to endorse this result, because doing so would effectively nullify a constitutional provision.

Similarly, in order to uphold Christensen’s petition, we would have to ignore important statutory distinctions between an initiative and a referendum. SDCL 9-20-19 defines the types of government decisions which are subject to referendum and provides:

Any legislative decision of a governing body is subject to the referendum process. A legislative decision is one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision.

No administrative decision of a governing body is subject to the referendum process, unless specifically authorized by this code. An administrative decision is one that merely puts into execution a plan already adopted by the governing body itself or by the Legislature. Supervision of a program is an administrative decision. Hiring, disciplining and setting the salaries of employees are administrative decisions.

Importantly, while this statute excepts administrative decisions from the referendum process, it makes no mention of the initiative power. There is a good reason for this omission. The legislature recognized that only a referendum is designed to pass on existing laws; no restrictions on initiative powers were necessary, because initiatives were not intended to conflict with or repeal current laws. If we fail to recognize the distinction between initiative and referendum set forth in Byre, in the future, every municipal administrative decision could be challenged by the electorate through the initiative process. That would represent a significant departure from the settled law of this state.

Because Christensen’s petition is a referendum rather than a petition, he must satisfy the procedural requirements associated with the referendum process. However, he fails to meet these requirements. First, SDCL 9-20-7 mandates that a referendum petition contain the title of the ordinance, the subject of the resolution, or the portion of the ordinance or resolution under consideration. Christensen, in improperly ■writing his petitions in the form of initiatives, did not identify any existing resolutions or ordinances to be considered. Second, SDCL 9-20-6 requires that a referendum petition be filed “within twenty days after the publication of any ordinance or resolution subject to referendum.” The record fails to identify any city ordinance or resolution concerning the airport which falls within the twenty-day period predating Christensen’s petitions of either June 7, 1993, or November 1, 1993.

Because Christensen failed to properly file a referendum petition, we reverse the trial court’s grant of a writ of mandamus and remand for further proceedings consistent with this opinion. Having invalidated the petition on these procedural grounds, we need not address the other arguments raised in this appeal.

Reversed and remanded.

AMUNDSON and KONENKAMP, JJ., concur. SABERS, J., and WUEST, Retired J., dissent. GILBERTSON, J., not having been a member of the Court at the time this case was submitted, did not participate.

In 1898, South Dakota enacted an amendment to art. Ill, § 1 permitting initiative and referendum at the state and municipal levels. Chip J. Lowe, Restrictions on Initiative And Referendum Powers in South Dakota, 28 S.D.L.Rev. 53-54 (1982). In so doing, South Dakota became the first state to reserve legislative powers to the people. Id. at 53. State statutes have since extended this "legislative prerogative of the electorate” to counties, conservation districts, and school districts. Id. at 54 (citing SDCL ch. 7-18A; SDCL 38-8A-12; SDCL 13-6-41 to 49). Other statutes allow particular issues to be submitted to a public vote. Id. at 54 (citing SDCL 38-27-18; SDCL 11-2-22; SDCL Ch. 35-3; SDCL 9-4-4.9). As one author observed: "Voter approval is nothing new in South Dakota government.” Id.