Beals v. Pickerel Lake Sanitary District

SABERS, Justice

(dissenting & alternatively concurring in result).

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[¶32] Article III, Section 1 of the South Dakota Constitution provides:

[T]he people expressly reserve to themselves the right to propose measures ... and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect....

(emphasis added). As this court stated nearly seventy years ago, “This language is plain, and leaves no room for construction either strict or liberal.... The power granted to the Legislature is restricted and limited by the right of the people to ultimately adopt or reject any legislative enactment.” State ex rel. Wegner v. Pyle, 55 S.D. 269, 271, 226 N.W. 280, 281 (1929) (emphasis added).

*141[¶ 33] I cannot agree that the Legislature can set up a political subdivision, delegate to it the Legislature’s police and lawmaking powers, and then circumvent the Constitution by insulating that political subdivision from the referendum process. I disagree with the majority opinion’s statement that “should the legislature desire to provide sanitary districts with initiative and referendum, it arguably could do so.” The Constitution declares that “the people expressly reserve” the right to initiative and referendum and the Legislature does not get to pick and choose which legislative bodies are subject to the process. S.D.Const. art. Ill § 1. The majority opinion claims that this statement “ignores the fact that the legislature has provided initiative and referendum” for counties, school districts, and conservation districts.9 The Legislature is obligated under the Constitution to provide for initiative and referendum to those entities to which it delegates its legislative powers and its failure to do so frustrates and violates the purposes of this constitutional provision. The enactment of legislation to implement initiative and referendum procedures is not merely contemplated, it is mandated. Article III section 1 provides, “The Legislature shall make suitable provisions for carrying into effect the provisions of this section.” (Emphasis added) See 42 Am.Jur.2d Initiative & Referendum § 4, at 652 (1969):

In the case of constitutional initiative and referendum provisions that are not self-executing,10 legislation is required before initiative and referendum is available.... The legislation must, of course, be consistent with the constitutional provisions.

[¶ 34] “[T]he failure of the legislature to act cannot take away a right constitutionally granted.” 16 Am.Jur.2d Constitutional Law § 140, -at 511 (1979) (emphasis added); accord Rose v. State, 19 Cal.2d 713, 123 P.2d 505, 513 (1942) (“[A] right constitutionally granted cannot be taken away by the failure of the legislature to act.”).

[T]he command of a constitutional provision which is not self-executing remains in force even though it is for the legislature to choose the time and form for carrying out the command. And it has been said that, while a provision in the constitution may need legislation to enforce its princi-plés and give them affirmative effect, yet, .without any legislation, such a provision may have a negative force in prohibiting acts in violation of its terms and nullifying statutes repugnant to its principles, and thus although, from the lack of legislation, its principles cannot be affirmatively enforced, neither, on the other hand, can those principles be lawfully violated, or any statute violating them be enforced.

Constitutional Law, supra § 140, at 511-12. Here, it is not a statute, but a Supreme Court opinion which is repugnant to, and in violation of a constitutional provision.

[¶ 35] It is not necessary to determine whether a sanitary district is a “municipality” because the legislative actions of a political subdivision engaged in the public function of sewage control are subject to referendum under the Constitution regardless of whether the entity is a municipality.11 Cf. In re Oahe Conservancy Subdist., 85 S.D. 443, 459-60, 185 N.W.2d 682, 691-92 (1971):

Conservancy districts are organized for a public purpose and are state agencies and public corporations. The Subdistrict, except for limitations of area and power as *142defined by statute, necessarily partakes of the same governmental agency and body politic characteristics as its parent body [.]
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School, power and conservancy districts are all agencies of the state; their organizations and boundaries, as well as their powers, are wholly within the legislative discretion unless limited by the constitution.

(Emphasis added); In re Heartland Consumers Power Dist., 85.S.D. 205, 213, 180 N.W.2d .398, 402 (1970) (declaring constitutional the Legislature’s creation of a nonprofit, public service utility district to assist the state in the performance of its governmental function of furnishing power and light).

[¶ 36] The Legislature cannot set up a political subdivision, delegate to it the role of exercising the Legislature’s valid police and lawmaking powers, yet preclude the people from exercising the constitutionally reserved powers of initiative and referendum. The Legislature’s legislative actions are subject to referendum; therefore, so too are the actions of its subdivisions to which it delegates its power. When the lawmaking power is exercised, “it [is] necessary that such law be passed according to the constitutional provisions of this state, and that the referendum [is] applicable thereto.” State ex rel. Schrader v. Polley, 26 S.D. 5, 11,127 N.W. 848, 851 (1910). “The Constitution is the mother law. It is not the baby. Statutes must conform to the Constitution, not vice versa.” Poppen v. Walker, 520 N.W.2d 238, 242 (S.D.1994) (quoting Cummings v. Mickelson, 495 N.W.2d 493, 507 (S.D.1993) (Henderson, J., concurring in part & dissenting in part)).

[¶ 37] It is of no moment that “sanitary districts” may have been unknown to the framers of our constitution. Cf. Gaiser v. Buck, 203 Ind. 9,179 N.E. 1, 4 (1931) (“[T]he language of a Constitution (or statute) is generally extended to include new things and new conditions of the same class as those specified which were not known or contemplated when it was adopted.”). In Hofer v. Board of County Commissioners, 334 N.W.2d 507 (S.D.1983), the circuit court ruled that the statute providing for referral of county ordinances and resolutions was unconstitutional and an appeal was brought. Although this court remanded so notice of the constitutional challenge could be given to the attorney general, it first commented on the merits. In response to the Board’s argument that counties were not subject to the initiative and referendum provisions because counties are not expressly mentioned, this court noted:

[T]he rule of “expressio unius est exdusio alterius” (the expression of one thing is the exclusion of another) is generally not applied in construing constitutional provisions relative to the taxing power of the legislature which has been said to be without limit except as prescribed by the constitution. We can conceive of no reason why the right of the people to subject the legislative actions of the county commissioners to the scrutiny of referendum vote should be afforded less protection than taxing powers.

Id. at 509-10 (emphasis added ) (citation omitted). Here, I can conceive of no reason, and the majority fails to provide a reason, why the right of the people to subject the legislative actions of the sanitary district to the scrutiny of referendum vote should be afforded less protection than taxing powers.12

[¶38] It is not the label assigned to a political subdivision, but rather its powers and functions which determine whether a particular action is subject to referendum. The Legislature delegated the following powers to a sanitary district:

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(4) To construct and operate storm and sanitary sewers and sewage and solid waste disposal plants and systems.
(5) To borrow money, levy taxes and special assessments, issue bonds, and exercise the power of eminent domain in the same manner as municipalities of the first class in this state, provided, however, that the board of trustees shall not have the power *143of eminent domain over existing sewage, garbage and refuse facilities.

SDCL 34A-5-26; see also SDCL 34A-5-31:

All proceedings for the construction and operation of sewer and sewage disposal plants and solid waste disposal plants and systems and the borrowing of money, making of special assessments, and issuing of bonds shall be governed, to the extent applicable, by § 9-12-1 and chapters 9-26, 9-40, 9-43, and 9-48 and in the exercise of the power of eminent domain the board of trustees may proceed as condemnation proceedings are conducted by the department of transportation under chapter 31-19 or as may otherwise be provided.

These statutes, provide the framework for municipal operations. See SDCL 9-12-1 (general corporate powers); ch. 9-26 (general obligation bonds); ch. 9-40 (utility facilities and revenue bonds); ch. 9-43 (financing of improvements); ch. 9-48 (sewer systems); see also ch. 31-19 (acquisition of land and materials by the Department of Transportation). It cannot seriously be argued that actions taken pursuant to these powers may never be subject to referendum. Cf. Wang v. Patterson, 469 N.W.2d 577, 580 (S.D.1991) (“[T]he only way for citizens to challenge the necessity of specific condemnations [made in the exercise of the power of eminent domain] is through referendum.”).

[¶ 39] The constitutional right of initiative and referendum puts the people and the legislative body on “equal footing”. Christensen v. Carson, 533 N.W.2d 712, 718 n.3 (S.D.1995) (citations omitted) (Sabers, J., dissenting). The effect of the majority opinion’s conclusion would be to allow the Legislature to set up “mini-legislatures” not subject to referendum and therefore superior to the people. Such a result is clearly unconstitutional. In other words, the Constitution already provided the right of initiative and referendum in this case.

These constitutional ... provisions must be construed liberally in favor of the people’s right to exercise the reserved powers of initiative and referendum. The initiative and referendum are not rights granted the people, but powers reserved by them. Deelaring.it the duty of the courts to jealously guard this right of the people, the courts have described the initiative and referendum as articulating one of the most precious rights of our democratic process. It has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right not be improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.

Rossi v. Brown, 9 Cal.4th 688, 38 Cal.Rptr.2d 363, 366, 889 P.2d 557, 560 (1995) (alterations & internal quotations omitted).

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[¶ 40] It is important to note that we do not need to address the constitutional issue because this case can be resolved on other grounds. See, e.g., Weegar v. Bakeberg, 527 N.W.2d 676, 679 (S.D.1995) (“[T]his case can be decided on the merits and there is no need to address the constitutional issue.”) (Amundson, J., concurring specially); accord Sander v. Geib, Elston, Frost Professional Ass’n, 506 N.W.2d 107,127 (S.D.1993) (“[Because we have decided this case on other than constitutional grounds, we are not warranted in addressing the constitutional questions raised[.] ”) (Miller, C.J.).

[¶ 41] Alternatively, I would concur in result on the basis that the resolution awarding the construction bid to Dahme is an administrative decision and therefore not subject to referendum. The initial resolution approving the financing and construction of a wastewa-ter system was a legislative action and potentially referable.13 However, that resolution *144was not referred. Here, Beals attempted to refer only the'resolution granting the bid to Dahme Construction Co. This she cannot do. SDCL 9-20-19 provides:

Any legislative decision of a governing body is subject to the referendum process. A legislative decision is one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of. citizens or their officers. Any matter of a permanent or general character is a legislative decision.
No administrative decision of a governing body is subject to the referendum process, unless specifically authorized by this code. An administrative decision is one that merely puts into execution a plan already adopted by the governing 'body itself or by the Legislature. Supervision of a program is an administrative decision. Hiring, disciplining and setting the salaries of employees are administrative decisions.

(Emphasis added).

[¶42] In Wang, this court discussed the difference between legislative and administrative decisions. In that case, the City of Sturgis argued its decision to condemn certain land was simply an administrative decision made in conjunction with its “master plan” to build an airport and therefore not referable. We disagreed:

Citizens note that the master plan did not authorize condemnation and thus did not apprise them of the fact that land would be condemned for the proposed airport. They contend that the resolutions of condemnation were city’s first actions which apprised them that the city was definitely going to condemn specific land for the proposed airport. Thus, they claim they should be allowed to refer the resolutions of condemnation.
We agree. “Where discretion is left to the local government as to what it may do, when the local government acts, it acts legislatively and its actions are subject to normal referendum procedure.” 5 McQuil-lin, Municipal Corporations § 1655. In applying the “legislative” versus “administrative” distinction this Court will apply a liberal rule of construction permitting rather than preventing, citizens from exercising their powers of referendum. See generally 5 McQuillin, Municipal Corporations § 1651 and cases cited therein. The December 21, 1987 motion to adopt alternative #11 as the master plan did not direct the condemnation of any land. Similarly, the March 6, 1989 motion simply indicated that the city council was willing to proceed with land condemnation “if required.” The city council still retained discretion to decide whether condemnation was necessary. When the city council passed the resolutions of condemnation on April 2, 1990, they were exercising that discretion and their decision was legislative and subject to referendum.

469 N.W.2d at 579-80. Likewise, when District passed the resolution approving the construction of a wastewater system, it was exercising its discretion and its decision was legislative and subject to referendum.

[¶ 48] The residents of the District were apprised of the cost and location of the project and Dahme’s low bid was within the price contemplated in the initial resolution. Therefore, the subsequent resolution awarding the bid represents an administrative decision which “merely puts into execution a plan already adopted by the governing body itself’ and is thus not subject to referendum. SDCL 9-20-19; accord Read v. City of Scottsbluff, 139 Neb. 418, 297 N.W. 669, 672 (1941) (holding that the acceptance of a bid, unmixed with the exercise of any legislative power, is purely administrative and not subject to referendum).

CONCLUSION

[¶ 44] Article III, section 1 clearly reserves to the people the powers of referendum and initiative. The majority opinion commits a grievous error by focusing on the label of the political subdivision and by ignoring its legislative powers and functions. That is not only *145error, but it is unnecessary error because this resolution was administrative and not referable. The constitutional question should not be reached, especially incorrectly.

[¶45] We should affirm, the circuit court’s order on the basis that the District’s resolution to award the bid is an administrative decision not subject to referendum.

.The majority opinion consistently fails to appreciate that the powers of initiative and referendum are not powers granted to or exercised by a particular entity. The powers are expressly reserved by the people to. themselves. The power of referendum applies to the laws e'nacted by the Legislature, and thus necessarily applies to the laws enacted by the Legislature’s subdivisions. Whether the Legislature can extend the power to other political entities, such as school districts (subdivisions of the executive branch) is not at issue. The issue is whether this court or the Legislature can deny the people a constitutionally reserved power. Obviously, the answer is no.

. If legislation is required to make some part of or all of a constitutional provision for initiative and referendum effective, the provision is not selfexecuting.-, initiative & Referendum § 3, at 652.

. The majority opinion has it backwards; it elevates statutes over the Constitution. It takes a positive (the reservation of rights in the people) and by its conclusion, turns it into a negative.

. This is especially so in light of the sanitary district’s power to tax. See SDCL 34A-5-26(5).

. Our Constitution expressly excepts from referendum "laws as may be necessary for the immediate preservation of the public peace, health or safety[.]” S.D. Const, art. Ill § 1. "A law may be necessary for the preservation of the public peace, health, or safety, and still be subject to the referendum, unless the Legislature declares it necessary for the immediate preservation of the

public peace, health, or safety.” Gravning v. Zellmer, 291 N.W.2d 751, 757 (S.D.1980) (citation omitted). Here, this resolution provides:

The District finds and determines that, without making the improvements included in the Project, the Wastewater System would pose a health hazard to the residents of the Pickerel
*144Lake Sanitary District, and the lands adjacent thereto.

Beals claims the exception does not apply because the District did not employ the precise words "necessary for the immediate preservation of the public peace, health, or safety.” We need not decide this question since Beals did not attempt to refer this resolution.