Heineman v. City of Alexandria

WHUTING, P. J. The appeals in these four actions presenting but one and the same question, they were all -submitted upon the briefs in the first action under stipulations providing that, subject to the approval of this court, the decision in the first action should be controlling in all. Plaintiffs having, under section 1509, Pol. Code, petitioned defendant’s council praying for orders disconnecting and excluding certain tracts of land from the corporate limits of said city, and their petitions having been denied, proceeded, under section 1511, Pol. Code, to submit their demands upon proper petitions to- the circuit court of the county wherein defendant city is situated. Defendant, answering- each of such petitions, pleaded that the resolution of defendant’s council denying, plaintiffs’ petition had been referred to a vote of the electors of defendant city under the provisions of sections 1214-1228, Pol. Code, and that the action of said council in- passing such resolution had been sustained by said electors. The trial court found the facts such as to entitle petitioners to the relief asked for and granted them [369] .such relief, although it also found that the several resolutions had been submitted to a vote of the electors and that such electors had voted to sustain the same. The defendant appealed all four causes. It is the contention of, appellant that the power conferred upon city councils under section 1509 and 1510, Pol. Code, and attempted to be conferred upon the circuit courts by sections 1511 and 1512, Pol. Code, is legislative in its nature; that the resolutions of the city council denying plaintiffs’ petitions were therefore subject to referendum to the electors of said city and their action thereon was final; and further that, inasmuch as such power attempted to be conferred upon the courts is legislative in its nature, said sections 1511 and 1512 are unconstitutional and void and the circuit court was without any jurisdiction herein. It will thus be seen that the sole question for our determination is whether or not the power given to the city council under sections 1509 and 1510, supra, and attempted to be conferred upon the courts by sections 1511 and 1512, supra, is legislative in its nature. If such power is legislative in its nature, the resolutions of the city council were each a “resolution having the effect of law” (section 1214, supra), and therefore subject to referendum to the electors, otherwise not; and furthermore, if such power is legislative in its nature, then, regardless of the referendum law, said sections 1511 and 1512, which attempt to confer such power upon the courts, are unconstitutional, otherwise not. The sole question thus presented to us upon this appeal is identical with that presented to this court, by the same counsel, in the case of Wickhem et al. v. City of Alexandria, 23 S. D. 556, 122 N. W. 597, wherein, after consideration of most exhaustive briefs upon both sides o'f such question, this court, while recognizing that there was a conflict among the authorities, held that the power was not legislative in its nature. At that time we cited numerous authorities supporting the conclusion reached by us. Appellant has, upon the present appeals, presented no further light upon this question. We see no reason to chang'e the views then expressd. The judgments appealed from are affirmed.