Opinion
File No. 7917.
Opinion filed April 16, 1936.
1. Municipal Corporations.
Statute respecting municipal recall elections confers very broad discretion on auditors of municipalities in determining sufficiency of recall petitions (Rev. Code 1919, § 6332).
2. Municipal Corporations.
Legislature has exclusive authority to determine whether privilege of recall elections shall be extended to voters of municipality and, if so, on what terms and conditions and in what manner.
3. Mandamus.
Legislature had power to leave question of sufficiency of petition for election to recall mayor to city auditor, whose determination cannot be judicially reviewed by mandamus or other remedial writ, unless arrived at arbitrarily or in bad faith (Rev. Code 1919, § 6332).
4. Mandamus.
One filing petition for city election to remove mayor in office of city auditor, who determined that petition was insufficient as not signed by requisite number of qualified electors, held not entitled to writ of mandamus compelling auditor to accept and certify sufficiency of petition, in view of circuit court's finding, not excepted to, that auditor did not act arbitrarily, fraudulently, or in bad faith (Rev. Code 1919, § 6332).
Appeal from Circuit Court, Minnehaha County; HON. LUCIUS J. WALL, Judge.
Proceeding by the State, on the relation of James O. Berdahl, for a writ of mandamus to Andrew Norstad, as Auditor of the City of Sioux Falls. From a judgment denying the writ, relator appeals.
Affirmed.
James O. Berdahl, Odean Hareid, John C. Mundt, and Harold E. Covey, all of Sioux Falls, for Appellant.
T.M. Bailey and Hugh S. Gamble, both of Sioux Falls, for Respondent.
Relator, Berdahl, and others filed in the office of the auditor of the city of Sioux Falls a petition asking that an election be called to submit to the voters of said municipality the question of the removal of the mayor. The city auditor, having examined said petition (section 6332, R.C. 1919), arrived at the opinion that it was not signed by the requisite number of qualified electors, and was therefore insufficient, and so certified. An amended petition was filed, and the auditor again made examination thereof and certified the same to be insufficient.
Relator thereupon instituted the present proceeding in the circuit court seeking mandamus to compel the auditor to accept the petition as valid and certify the sufficiency thereof.
The circuit court, after hearing, made and entered findings, conclusions, and judgment denying the writ, finding as a fact that the city auditor, in determining the petition to be insufficient, "* * * acted in good faith and did not act fraudulently or arbitrarily, * * *" but that he did act "* * * under a misapprehension of the law * * *" in rejecting certain names on said petition.
From this judgment, and from the judgment only, relator has appealed to this court.
Our statute with reference to these municipal recall elections is in some respects unique. We interpret it as conferring a very broad discretion upon auditors of municipalities. We had occasion to consider it with some care in State ex rel. Goodhope v. Leyse (1932) 60 S.D. 384, 244 N.W. 529, 531; Id. (1933) 61 S.D. 153, 246 N.W. 635. We there announced the rule to be that "the action of the auditor becomes final, except in the event that the auditor has abused his discretion by acting fraudulently or arbitrarily." Two legislative sessions have intervened since we announced our interpretation of this statute in the Goodhope Case, and such interpretation has appeared to meet with legislative approval, at least to the extent that the Legislature has not seen fit to amend or change the law.
[2, 4] Appellant urges the case of State ex rel. Cook v. Richards (1932) 61 S.D. 28, 245 N.W. 901, as requiring some departure from our views as announced in the Goodhope Case. We do not think that the doctrine stated in the Richards Case is controlling here or applicable to the matter of the interpretation of the special statute here involved.
We are of the opinion that no valid factual or legal distinction can be drawn between the instant case and the Goodhope Case. We think now, as we thought and said then, that it was within the legislative power (bearing in mind that it is entirely within the authority of the Legislature to say whether the privilege of recall electons shall be extended to voters of municipalities in this state, and, if so, upon what terms and conditions and in what manner) to leave to the auditor the determination of the sufficiency of this petition and that such determination is not for judicial review by mandamus or other remedial writ, unless arrived at arbitrarily or in bad faith. The circuit court affirmatively found (and there is no exception to such findings) that the auditor did not act arbitrarily, fraudulently, or in bad faith. We are therefore of the opinion that this case is controlled by the Goodhope Case, and the judgment appealed from is affirmed.
ROBERTS, J., concurs in the affirmance.
WARREN, J., having been absent from the oral argument, not sitting.