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favor of the establishment of said court, etc.," carries no other or different thought than a majority rule, that is, a majority of the votes cast for or against the proposition of the establishment of the Court.
When any other rule than the majority rule is required by the legislature it is generally followed by some clear expression such as, “all of the electors or voters of the county, town, etc.," or requires the question to be submitted at a general election and then provides that it must receive a majority of all the votes cast at such election. This is the rule for establishment of county seats. (State Constitution, Art. 9, Sec. 2.) Adkins v. Lien, 10 S. D. 436; 15 Cyc. 390 and cases cited.
Where the question may be submitted at a general or special election, in the discretion of the Board, the rule is that a majority of the votes cast on that subject controls. Howland v. Board (Cal.), 41 Pac. 864.
And this is the rule fixed by the Supreme Court of this State in Treat v. De Jean, 22 S. D., 505.
As part of finding No. 6, the Court' held that the resolution adopted by the City Council on April 4, 1910, submitting the question of the establishment of a Municipal Court to an election to be held in said city, carried with it an expenditure of money on the part of said City of Sisseton and created a liability against the said city for the payment of a part of the salary of Municipal Judge, and in this connection we desire to submit that the same does not come under Section 1209 of the Pol. Code. That the fundamental object of said section is to prevent the city council from incurring a direct liability, unless it is concurred in by the “aye” and “nay” vote of the majority of the council, while in the submission of said proposition to a vote, the sole and only object of the same is to initiate an election wherein the people may decide as to whether or not they desire the court to be established and the liability incurred, in other words, the "aye" and "nay" vote, and the record is for the purpose of protecting the city against the unlawfui acts of the members of the council and to fix the liability of the council for unlawful acts which they may do in their official capacity and not to protect the people against their own acts and their own liability incurred by their favorable expression upon a proposition submitted to them at an election.
Geo. S. Rir, and Thomas Mani, for Respondent.
That prohibition is the correct remedy is clearly in harmony with the holdings of this court in the following decisions: State v. Harris, 115 X. W. 533; State v. Barber, 19 S. D. 1.
The members of the council may have voted aye, but under the statute, which is mandatory, the aye and nay vote of councilmen must be entered in the minute book.
According to the facts proved, this was not done. This resolution must fall within the language of section 1209 of the Pol. Code.
The municipal law of 1907 provides that one-half of the salary be paid by the city.
Section 8 on page 401 of the laws of 1907 was amended by chapter 176 of the laws of 1911 and provides that the city shall pay one-half of the salary of the municipal judge. This creates a liability against the city and makes an expenditure of money necessary. 25 Ency. of Law (2nd Ed.) Pages 222-224, under the heading "Liable;" Vol. 1 Abbott's Municipal Corp., Sec. 152 on page 341.
It is well settled in this state that where the constitution or statute uses language similar to that of Sec. 4 of Chapter 191 of the Session Laws of 1907 that it requires a majority of the votes cast at the election. Williamson v. Aldrich, 21 S. D. 13; McCreary on Elections, 2nd Ed., Sec. 555; State ex rel Clark v. Stakke et al., 22 S. D.: 228; McCreary on Elections, 2nd Ed., Sec. 183.
Again if it was the intention of the legislature to have taken the question of the adoption of this law by cities outside of the established rule, that it must have the majority cast at the election, it could and would have added words such as for this purpose or on this proposition. Then intention would have been certain. In the absence of any restriction it was the intention to let the vote fall within the rule of the majority of votes cast at the election.
It may be argued that because section 3 of chapter 19, providing for municipal courts, provides that this question may be submitted within twenty days from the date of the filing of the petition, that it becomes a special election, notwithstanding that it was held on a general election day. It will be admitted that the question was in this case actually submitted at the general election in 9-Vol. 31, S. D.
Sisseton, and if the council chose to submit it on a general election day, when other questions were being voted upon, this question should still receive a majority of the votes cast at such election. In this case notice that a vote would be had upon the question of adopting the municipal court law was given in the notice of the general annual municipal election.
While the legislature provides that the question of the adoption of the municipal law might be submitted on twenty days notice, and is silent as to whether it should be submitted on a special election or a general election day, it will be seen that the legislature made no distinction or exception to the language. “If a majority of the votes cast at said election shall be for the establishment of such court, such court shall then be deemed to be established.”
It is also evident that no such distinction was necessary under the ruling of this court. If the question had been submitted at Sisseton on any other day than the annual municipal election day, and no other proposition had been submitted with it on a special election day, that the adoption of the municipal law would have been decided in the affirmative is certain. It should have received a majority of the votes cast, but when it is submitted with other propositions or on a general election day it must still receive a majority of votes cast at such election, and a majoritiy vote upon the proposition itself is insufficient. Adkins v. Lien, et al, 10 S. D. 436.
WHITING, J. At the regular municipal election held in and for the city of Sisseton in April, 1910, there was submitted the question of whether or not a municipal court should be established in said city. Upon the canvass of the votes cast, it was found and determined that a majority of the votes cast upon the above question were in favor of the establishment of such court. Such question was declared carried. If such question was carried, then, under the provisions of the statute, it became the duty of the city council of said city of Sisseton, in calling the regular municipal election to be held in and for said city in the month of April, 1911, to give notice that among the offices to be filled at such election was that of judge of such, municipal court. The relator, alleging certain facts which he claimed rendered void the election upon the question of establishing a municipal court, and also that the question did not carry at such election, claimed that the defendants, who were the councilmen and auditor of said city, were threatening to
give rotice of an election to fill the office of judge of such court, and obtained, from the circuit court, an alternative writ of prohibition, prohibiting defendants from giving notice of and calling such election. After granting the alternative writ, and prior to the date for holding such election, the circuit court modified the writ allowing the election to proceed, and a certain party was chosen to fill the said office of municipal judge. This cause was then, subsequent to such election, tried before the said court, which rendered findings and conclusions in favor of the relator. A judgment was entered making the alternative writ permanent, holding that the said office of municipal judge did not exist, holding that all proceedings had by defendants for the purpose of establishing said office and the said municipal court in said city were void, holding that no person had been legally elected thereto, and prohibiting the defendants from declaring any person elected to such pretended office. The defendants appealed from the said judgment.
Under the statutes of this state, before a city council is authorized to submit to the electors of said city the question of the establishment of a municipal court, there must be presented to said councii a petition, signed by a certain percentage of said electors, and asking for the submission of such question. It appears that such a petition was presented to the city council of Sisseton; but no record was ever made by the city auditor of the filing in his office of any such petition or of the presenting of same to the council. It further appears that, at the meeting at which the city council directed the giving of notice of the regular municipal election to be held in April, 1910, the city council passed a resolution submitting to the electors this question of the establishment of a municipal court in and for said city; but the record, as made by the city auditor, failed to record the fact that a yea and nay vote was taken thereon ; but it was fully established that, as a matter of fact, a yea and nay vote was so taken, and that it was unanimous in favor of the calling of such election. The statute provides that this question of the establishment of a municipal court shall be submitted to said electors at a special election. As hereinbefore stated, the said question was submitted in connection with those matters which properly could be and were submitted at the general election in April, 1910, held for choosing the municipal officers in and for the said city of Sisseton. From the canvass of the votes cast at said
election, while it appears that a clear majority of those voting upon the question of establishing such municipal court voted in favor thereof, yet the number voting in favor thereof was not a majority of all the electors voting at such municipal election.
It is the contention of respondent: (1) That the failure to file the petition was fatal; (2) that the question of establishing a municipal court was one which involved the expenditure of money, and that therefore, under the provisions of the statutes of this state, any action thereon was a nullity, unless an aye and nay vote was had thereon, and a record of such aye and nay vote made and entered; (3) that, under the provisions of the statutes of this state, it was necessary, in order for the question submitted to carry, that it should receive a majority vote of all of the electors who voted at the municipal election at which the question was submitted.
Appellants contend: (1) That prohibition does not lie in a case of this kind; (2) that, even if the circuit court had authority to issue a writ of prohibition in this case, it was, under the facts of this case, an abuse of discretion on the part of such court to issue such writ: (3) that the filing of the petition asking for the submission of the question of establishing a municipal court, is not jurisdictional, and that the council acquired authority, upon
the presentation to it of a sufficient petition ; (4) that the resolution calling such special election was not a resolution involving the expenditure of money, such as is contemplated by the statute requiring an ave and nay vote, and, even if it were such a resolution, that the statute was fully complied with by the calling of such an aye and nay vote, and that, if necessary, a record thereof could be made by the city council at a later date; (5) that the election for the determination of the question of establishing a municipal court was a special election, and remained such a special election regardless of the fact that it was held at the same time and place, and in connection with the general municipal election, and therefore, in order for the question submitted to carry, it was only necessary for there to be cast, in favor thereof, a majority of the votes of those electors who voted upon such question. The appellants contend that their act in ordering and calling the election for municipal judge was a ministerial and not a judicial act, and that the writ of prohibition can only issue to arrest the act of an inferior tribunal, and not the act of an administrative board.