dissenting.
The majority affirms the district court’s writ of mandamus directing that the initiative petition be placed on the ballot for a vote by the electors of the City of Grand Island (City). The majority concludes that the district court did not decide whether the initiative petition was a valid measure, and therefore, it does not address that issue. I respectfully dissent.
The initiative was a half-cent sales tax to be used to create an endowment. The interest generated from U.S. Treasury bills purchased with sales tax funds would be allowed to accumulate in the City’s general fund until spent as directed by the voters at a future election. The City refused to place the matter on the ballot *404and did not seek declaratory relief pursuant to Neb. Rev. Stat. § 18-2538 (Reissue 1997), which permits a municipality to seek a declaratory judgment regarding any question arising under chapter 18, article 25. Section 18-2538 also provides that if the municipality does not timely file such action, it shall be required to proceed with the initiative. In my opinion, the City’s failure to ask the district court to determine the validity of the initiative does not change the issue before us.
When Sydow, the relator, sought a mandamus, he had the burden to establish a clear legal right to the relief. Mandamus is an extraordinary remedy imposed by law when the relator has a clear legal right to the relief sought. See State ex rel. AMISUB v. Buckley, 260 Neb. 596, 618 N.W.2d 684 (2000).
Use of the initiative process to enact measures is governed by Neb. Rev. Stat. §§ 18-2501 to 18-2538 (Reissue 1997 & Cum. Supp. 2000). In order for a measure to be placed on the ballot, it must be an ordinance, charter, provision, or resolution which is within the legislative authority of the governing body of a municipal subdivision to pass. See § 18-2506 (defining “measure”). Thus, before the district court could issue the mandamus, it had to determine that the initiative was within the authority of the City to pass. The burden is always upon the relator to show clearly and conclusively that it is entitled to a particular thing that the relator asks. See State ex rel. Wal-Mart v. Kortum, 251 Neb. 805, 559 N.W.2d 496 (1997).
Although the district court stated that it made no determination of the validity of an endowment fund because that issue was not before it, the court found: “Relator is entitled to a declaratory judgment declaring that the measure proposed by the Relator’s initiative petition for the one-half cent sales tax is a subject which may be enacted by the initiative petition process and is otherwise validly and lawfully proposed under the applicable provisions of law.” Having so found, the court ordered the City to submit the “question” at the next election.
The majority has decided that since the validity of the proposal was not raised by the parties, the district court could not decide the validity of the proposal. It concludes that because the City did not seek a declaratory judgment to determine the validity of the initiative, § 18-2538 required that the City place the *405proposal on the ballot. I respectfully disagree. This is an action for mandamus, and I do not believe § 18-2538 is controlling.
The issue, as framed by the pleadings, is whether Sydow has a clear legal right to have the initiative on the ballot. The number of signatures does not establish this right. Sydow does not have a clear legal right unless the proposal is within the legislative authority of the City to pass. See § 18-2506. Before the court can issue the mandamus, it must first determine whether the City has the authority to pass the proposal. There is no clear legal right if the City cannot legally enact the proposal.
The district court found that Sydow was entitled to a declaratory judgment, stating that “the measure proposed by the Relator’s initiative petition for the one-half cent sales tax is a subject which may be enacted by the initiative petition process and is otherwise validly and lawfully proposed under the applicable provisions of law.” Therefore, in my opinion, the district court did decide that issue, and it should be addressed by this court.
Perhaps the following example will better illustrate: An initiative proposes the construction of a gambling casino or some other illegal activity. The relator obtains the required number of signatures and files the petition with the city. The city refuses to place the measure on the ballot. The relator seeks a mandamus, and the only issue presented to the trial court is whether the relator has obtained the required number of signatures. In my opinion, the trial court could not issue a mandamus without addressing the validity of the initiative under § 18-2506. There is no clear legal right to have an illegal initiative on the ballot even if the city failed to seek declaratory relief under § 18-2538.
In the case at bar, the district court could not issue the mandamus unless it first determined that the initiative complied with § 18-2506. A governing body should not be required to place an initiative on the ballot that it cannot enact even if approved by the electors.
Gerrard, J., joins in this dissent.