State ex rel. Millerke v. Nisbet

161 N.W. 351, 38 S.D. 347, 1917 S.D. LEXIS 28

• Court: South Dakota Supreme Court
• Decided: February 16, 1917
• Docket: File No. 4011
• Status: Published

Opinion

GATES, P. J.

The city of Dell Rap-ids is a city under the commission form- of government. On January 31, 1916, a petition was filed by 170 electors of tire city (nearly one-half of the total number voting at th-e last preceding municipal election) with the city auditor, asking that there be submitted to the electors of the city the question whether the city should- -change its form of government and become incorporated under -charter 14 of the Revised Political ’Code, -commonly -referred to as the aldermanic form of government. The municipal officers failed to- comply with the petition, an-dl -in Ma-rdh, 191Ó, relator applied for, -and secured, an -alternative writ of mandamus requiring -such officers to act or to show cause why they 'had not -done -so. Upon the trial judgment was entered directing the issuance of a peremptory writ. Therefrom the -defendant's -appealed -to this court.

By the provisions of chapter 125, Laws 1913, section 1x70 of chapter 14 of th-e Revised Political Code was- amended to read as follows-; the new portion being italicized1 by us:

“Any -city now existing in -this state under a special charter, Or incorporated as a city under commission, rnlay become -incorporated under th-is article in the manner following: Whenever one-eighth of the legal voters of s'uch -city voting at the last preceding -municipal election shall petition- the mayor and -council thereof to -submit the question as to whether su-ch city shall become incorporated under this article to a vote of' the electors of ®uch oity, it shall he the duty of s'uch mayor and council to submit such 'question accordingly, zvitlnn thirty (30) days after the filing of suck petition, and to appoint a time and place or places at which such vote may be taken, and to designate the persons who shall act as judges at such election; but such question shall not be submitted oftener than once in each- year.”

[1] It is the claim of appellants that by the repealing clause of the commissicn governed cities act, viz. section 137, c. 8b, Laws 1907, section 1170 of the Revised Political- Code was repealed because inapplicable to cities under commission. This claim is -too attenuated to deserve serious consideration. Of course, while Dell Rapids is proceeding under the commission form of government, certain sections of the aidermanic act have no application to it; but, when its electors desire to have the question of 'change of organization submitted to a vote, section 1170 -as amended is a step in the procedure.

[2] Appellants’ next contention is equally strained and without merit. The original act of which said section 1170 was a part was chapter 37, Laws 1890. Section 1 of article 1 of said chapter used this language, viz. “shall 'become incorporated under this act.” The codifiers of the 1903 revision changed- the word “act” to “article,” and' the latter word was -continued' in chapter 125, Laws 1913. It is contended 'that a city voting to incorporate under the provisions of the last-mentioned chapter would only become incorporated under article 1 of chapter 14 of the Revised Political Code, viz. sections 1170-1178, inclusive, and not under the provisions of chapter'14; that the provisions of article 1 of said chapter 14 “standi alone, independent of and' disconnected from those of the articles following.” If the city should vote to become incorporated under section 1170, Rev. Pol. Code, a« amended, it would become incorporated under the provisions of chapter 14, Rev. Pol. Code, of -which that section is a part.

[3] It is next contended .that chapter 125, Laws 1913, embraces more than one subject, and1 that the subject of the act is not embraced in the title. The title is-:

“An act to amend' section 1170 of the Revised' Political Code of 1903 of the state of South Dakota, relating to organization of cities.”

The subject of the act is single. It is the method by 'which cities not organized under chapter 14, Rev. Bol. 'Code, may take the first step to become so organized. Likewise, not more than one subject was expressed in the title. The title 'would have been ample if it had simply said, “An act to amend section 1170,. Revised Political 'Cod'e of 1903.” Wilson v. Western Surety Co., 31 S. D. 175, 140 N. W. 263; State ex rel. Olson v. Erickson, 125 Minn. 238, 146 N. W. 364.

No error appearing, the judgment appealed from is affirmed.