State Ex Rel. Boyer v. Grady

269 N.W.2d 73, 201 Neb. 360, 1978 Neb. LEXIS 788

• Court: Nebraska Supreme Court
• Decided: July 12, 1978
• Docket: 41557
• Status: Published

Opinions

Brodkey, J.

Relators and appellees, voters and residents of the City of North Platte, Nebraska, filed a petition for mandamus in the District Court for Lincoln County, seeking to require respondent Richard L. Grady, the city clerk of North Platte, to certify signatures on initiative petitions and submit an ordinance proposed in the initiative petitions to the voters of North Platte at a special or general election. Respondent denied that he was required by law to certify the signatures on initiative petitions or submit the proposed ordinance to the voters. Relators moved for summary judgment, which was granted after trial. The District Court ordered the respondent to certify the signatures on the initiative petitions and to submit the proposed ordinance to the voters of North Platte if the number of valid signatures on the petitions was sufficient. Respondent has appealed to this court, contending that the trial court erred in (1) failing to dismiss the action because it was prematurely filed; (2) holding that an existing ordinance could be repealed through the initiative process; (3) holding that section 18-Í17, R. R. S. 1943, did not apply in this case; and (4) holding that sections 77-27,142 et seq., R. R. S. 1943, did not prevent the use of the initiative process by relators in this case. We affirm the judgment of the District Court.

The facts are not in dispute, and most of the relevant facts are contained in a stipulation entered into by the parties. On June 22, 1976, the city council of North Platte adopted ordinance No. 1890, enacting a 1 percent municipal sales tax. Within 30 days thereafter, referendum petitions were filed by voters, primarily relators, who desired that the ordinance be submitted to the electorate for approval or disapproval. This attempt ultimately was unsuccessful because of an inadequate number of signatures on the referendum petitions.

On January 28, 1977, relators filed initiative petitions with the respondent, requesting that a proposed ordinance be submitted to the voters of North Platte. The proposed ordinance provided for the repeal of ordinance No. 1890, which would result in abolishment of the 1 percent municipal sales tax. On February 1, 1977, the city council determined that it should not recognize the initiative petitions as legal petitions that required the respondent to call an election. The respondent, who viewed the city council as his superior, then refused to certify the signatures on the petitions or call an election.

Relators instituted this action on February 8, 1977, 11 days after the initiative petitions had been filed with the respondent, by filing a motion for an alternative writ of mandamus, a petition for mandamus, and an affidavit. The trial court ordered that an alternative writ of mandamus should be issued, and that order was apparently served on the respondent on February 10th. On February 28th, the alternative writ of mandamus was actually issued and served upon the respondent. The writ commanded the respondent to certify the signatures on the initiative petitions and call an election if required by law, or to show cause why he refused to do so. Respondent answered on March 15th, denying that he was under a duty to act.

The initiative petitions in question contained the purported signatures of 4,292 voters of North Platte, or approximately 35 percent of the 12,242 registered voters of that city.

Respondent first contends that this action should have been dismissed because it was prematurely filed. In support of his position he relies on section 18-105, R. R. S. 1943, which provides that when an initiative proposal includes a request for a special election and contains the proper number of signatures, the city clerk shall cause the proposal to he submitted to a vote at a special election which “shall be called by him not less than thirty nor more than sixty days from the filing of such proposal.” Respondent argues that this statutory provision affords him 30 days from the date of the filing of the initiative petitions in which to call a special election, and that therefore relators filed their petition for mandamus prematurely because it was filed 11 days after the initiative petitions were received by the respondent.

It is a general rule that a writ of mandamus “will not ordinarily be awarded to compel the performance of an act unless it is one which is actually due from the respondent at the time of the application.” 52 Am. Jur. 2d, Mandamus, § 90, p. 413. See, also, State ex rel. Sayer v. Junkin, 87 Neb. 801, 128 N. W. 630 (1910). Mandamus in anticipation of default, however, may be granted where “the respondent clearly manifests an intention not to perform the act in question * * 52 Am. Jur. 2d, Mandamus, § 90, p. 413. Therefore, even when the respondent’s duty to act is not yet technically due, a mandamus action is not considered premature when the respondent has clearly refused to act and refuses to because he claims that he is under no duty to act. See, generally, Folcarelli v. Spencer, 94 R. I. 304, 180 A. 2d 322 (1962); Hazel Park Racing Assn., Inc. v. Inglis, 336 Mich. 508, 58 N. W. 2d 241 (1953); Robinson v. Board of Supervisors of Davis County, 222 Iowa 663, 269 N. W. 921 (1936); Hudson v. Nehill, 25 Misc. 2d 1025, 206 N. Y. Supp. 2d 918 (1960).

In the present case, the record adequately demonstrates that the respondent had no intention of certifying the signatures on the initiative petitions and calling an election, particularly after the city council determined that it should not view the petitions as valid ones which required action by the respondent. It should also be noted that the alternative writ of mandamus was not actually issued and served upon the respondent until 31 days after the filing of the initiative petitions, at which time the respondent had taken no action. Respondent’s argument that he might have changed his mind and acted on the initiative petitions after relators applied for the writ of mandamus, but before 30 days had expired from the time the initiative petitions were filed, and that therefore the action should have been dismissed as premature, is not supported by the record.

Under these particular circumstances, we conclude the exception to the general rule is applicable, and the trial court did not err in refusing to dismiss the action as premature. We recognize, however, that ordinarily a writ of mandamus will not be awarded to compel the performance of an act unless it is actually due from the respondent at the time of the application.

The second issue in this case is whether municipal voters may utilize the initative power to repeal an ordinance passed by the city council of the municipality. Respondent contends that the initiative process cannot be so used when the referendum process is, or was, available for that purpose.

The initiative and referendum powers of municipal voters are established by statute in this state. Section 18-101, R. R. S. 1943, provides: “The right to propose ordinances for the government of any city or other municipal subdivision of the State of Nebraska shall, in addition to being exercised by the mayor and city council of such city or the governing authorities of such other municipal subdivision of this state, be vested in the voters thereof as hereinafter provided.” Section 18-102, R. R. S. 1943, requires that an initiative proposal be signed by at least 15 percent of the voters of the city. Ordinarily the proposal is to be submitted to the electorate at the first regular election held after the expiration of 30 days from the filing of the proposal. § 18-104, R. R. S. 1943. If, however, 20 percent of the voters sign the initiative proposal and request a special election, the city clerk shall submit the proposal to the voters at a special election which the clerk shall call not less than 30 nor more than 60 days from the filing of the proposal. §§ 18-103 and 18-105, R. R. S. 1943.

Statutory provisions applicable to cities also provide for referendum petitions as a means of submitting ordinances, passed by the city council, to the voters of the city for approval or disapproval before they become effective. See §§ 18-112 et seq., R. R. S. 1943.

Section 18-101, R. R. S. 1943, contains no express limitations on the power of the initiative reserved to municipal voters, and grants to those voters the same right to propose ordinances as is vested in the mayor and city council. It is the rule that grants of power of municipal corporations concerning the initiative and referendum are to be liberally construed to permit, rather than restrict, the power and to attain, rather than prevent, its object. See 5 McQuillin, Municipal Corporations, § 16.51, p. 203 (3d Ed., 1969). This is analogous to the rule that constitutional provisions, with respect to the powers of initiative and referendum, reserved to the people should be construed to make effective the powers reserved. Klosterman v. Marsh, 180 Neb. 506, 143 N. W. 2d 744 (1966).

This court has never squarely decided whether the initiative power may be utilized to repeal an ordinance passed by the city council of a municipality. In Klosterman v. Marsh, supra, however, we stated: “The initiative is in no sense limited as to the time of its exercise. Neither are initiated laws limited to matters on which the Legislature has not acted. By the initiative process, the people may amend or even expressly repeal laws already enacted by the Legislature.” See, also, State ex rel. Andersen v. Leahy, 189 Neb. 92, 199 N. W. 2d 713 (1972); 42 Am. Jur. 2d, Initiative and Referendum, § 9, at p. 657.

Courts in other jurisdictions have specifically held that the voters of a municipality can, through the initiative, enact a measure conflicting with or repealing legislation previously passed by the municipal council, so long as the question upon which it enacts such an initiative ordinance is within the power of the municipality to control by legislative process. State ex rel. Sharpe v. Hitt, 155 Ohio St. 529, 99 N. E. 2d 659 (1951); Storegard v. Board of Elections of Cuyahoga County, 22 Ohio Misc. 5, 50 Ohio 2d 240, 255 N. E. 2d 880 (Ct. Com. Pl., 1969). See, also, Smith v. Township of Livingston, 106 N. J. Super. 444, 256 A. 2d 85 (1969), affirmed, 54 N. J. 525, 257 A. 2d 698 (1969). There are, however, cases to the contrary in which courts have held that the initiative power may be used to repeal an existing ordinance only if the repeal is ancillary to the enactment of new legislation, or an ancillary step in proposing a conflicting law or an amendment to a law. See, In re Initiative Petition No. 1 of Midwest City v. Melton, 465 P. 2d 470 (Okla., 1970); Wyatt v. Clark, 299 P. 2d 799 (Okla., 1956).

In essence, respondent argues that the initiative power may not. be utilized to repeal an ordinance, and that the referendum is the exclusive process by which voters of a municipality may reject an ordinance passed by the city council. We are not persuaded, however, that the fact that municipal voters may utilize the referendum process to prevent an ordinance passed by the city council from ever becoming effective should preclude them from abolishing an ordinance by repeal through the initiative process. Many ordinances, when first passed by a city council, may not be controversial to the degree that a sufficient number of voters will desire a referendum. With passage of time, however, circumstances may change or voters may simply find an ordinance undesirable and wish to abolish it, or amend it. We hold that the initiative power, which is to be liberally construed, may be utilized in such cases where the voters attempt to do no more through the initiative process than the city council and mayor could do if they so chose. See, § 18-101, R. R. S. 1943; Klosterman v. Marsh, supra; State ex rel. Sharpe v. Hitt, supra.

Respondent next contends that referendum and initiative powers have no application to a measure relating to the current support of government departments or to appropriation ordinances. He relies on section 18-117, R. R. S. 1943, which provides that ordinances relating to items of appropriation of money for current expenses of the several departments of the city shall, by a unanimous yea and nay vote of the city council, be deemed to be urgent ordinances to which the referendum provisions pertaining to cities shall not apply. That section also provides that the referendum provisions shall not apply to ordinances relating to public ways, public property, utility systems, and other capital projects. Respondent argues that the sales tax ordinance was an “appropriation ordinance,” that sales tax revenue was to be used for capital projects, and that therefore the initiative process is not available to relators in this case.

Respondent’s arguments are, in some respects, contradictory. On the one hand he argues that the restrictions placed on the referendum power under section 18-117, R. R. S. 1943, should apply in this case, which involves initiative petitions, apparently on the theory that the initiative petitions in this case are really referendum petitions in disguise. On the other hand, he concedes in his brief that a sales tax ordinance, like the one involved in the case, may be subject to attack by referendum.

In any event, even assuming that the provisions of section 18-117, R. R. S. 1943, would apply in this case, the respondent’s position is without merit. First, the record reveals that the sales tax ordinance was not passed by a unanimous vote of the city council. Second, it is clear that an ordinance establishing a new scheme of taxation is not an appropriation ordinance. See Lawrence v. Beermann, 192 Neb. 507, 222 N. W. 2d 809 (1974). Finally, the ordinance was not one relating to capital projects, since it was simply an ordinance establishing a new source of tax revenue.

Respondent’s final argument is that only the city council and mayor of North Platte have the power to impose, or decide not to impose, a municipal sales tax under sections 77-27,142 et seq., R. R. S. 1943, commonly known as the Local Option Revenue Act. Section 77-27,142, R. R. S. 1943, provides that any “incorporated municipality by ordinance of its governing body” is authorized to impose a sales and use tax. Respondent contends that “governing body” refers only to the legislative body of a municipality, and that therefore sales tax ordinances are beyond the power of the people to review through the initiative and referendum processes.

This argument is not persuasive. There is no indication that the Legislature intended to grant powers concerning sales tax ordinances solely to city councils and to exclude municipal voters from proposing or rejecting such ordinances through the initiative and referendum processes. Although it is true that during the legislative debate on section 77-27,142, R. R. S. 1943, certain senators referred to city councils enacting a municipal sales tax, these references were not addressed to the issue of whether the initiative or referendum processes could be utilized with respect to sales tax ordinances. We do not read the legislative history of the act as indicating an intention on the part of the Legislature to except sales tax ordinances from the usual powers of initiative and referendum, and it would have been an easy matter to expressly make such an exception if the Legislature had so intended. Since the powers of the initiative and referendum are to be liberally construed, we do not believe that their use should be limited in the manner suggested by respondent. Under our statutory scheme, there is little doubt that city councils and the electorate are coordinate legislative bodies, and there is no superiority of power between the two. See Klosterman v. Marsh, supra.

The judgment of the District Court is affirmed.

Affirmed.