(concurring in part, dissenting in part).
I agree fully with the majority opinion’s holding that the petition in question was in proper form and that the action of the Murdo city council creating a second police officer’s position was subject to referendum. I cannot agree, however, that the decision of the Murdo city council to hire Duane Lewis as a second police officer was not subject to referendum.
The majority opinion holds that the exercise of a power legislatively vested in the governing authorities of a municipality is not subject to referendum election, in contrast to the exercise of a power legislatively vested in the municipal corporate entity itself, citing decisions of the Supreme Court of Washington. As I read the Washington decisions, however, the basis for this distinction in each case was the fact that the power of referendum had its source in city charter. See, e.g., Citizens for Financially Responsible Gov’t, 99 Wash.2d 339, 662 P.2d 845 (1983); Leonard v. City of Bothell, 87 Wash.2d 847, 557 P.2d 1306 (1976); Haas v. Pomeroy, 50 Wash.2d 23, 308 P.2d 684 (1957); Neils v. City of Seattle, 185 Wash. 269, 53 P.2d 848 (1936); Harlin v. Superior Court for King County, 139 Wash. 282, 247 P. 4 (1926); Walker v. Superior Court for Spokane County, 87 Wash. 582, 152 P. 11 (1915); Dolan v. Puget Sound Traction, Light & Power Co., 72 Wash. 343, 130 P. 353 (1913); Ewing v. City of Seattle, 55 Wash. 229, 104 P. 259 (1909); Benton v. Seattle Electric Co., 50 Wash. 156, 96 P. 1033 (1908). The Washington Court has consistently held that it would be an impermissible infringement upon the state’s legislative authority to permit the exercise of a legislatively granted power to be subject to the power of referendum having its source in municipal law.
As the majority opinion points out, however, the power of the electors of a municipality in this state to submit municipal ordinances and resolutions to referendum election has its source in our state constitution, S.D. Const, art. Ill, § 1, and in state statute, SDCL ch. 9-20. Accordingly, I simply do not believe that the rationale applied by the Washington Court is applicable to the case at hand.
Were we writing on a clean slate, I would hold that the time has come to give effect to the distinction that other courts have drawn between ordinances and resolutions that are legislative in nature and those which are merely administrative in nature. See, e.g., Citizens for Financially Responsible Gov’t, supra; Leonard v. City of Bothell, supra; Heider v. Common Council of City of Wauwatosa, 37 Wis.2d 466, 155 N.W.2d 17 (1967); 5 E. McQuillin, Municipal Corporations § 16.-55 (rev. 3rd ed. 1981). Under such an analysis, the decision to hire officer Lewis would clearly be characterized as administrative in nature and thus not referable.
Such a holding would, however, represent an outright departure from the position that this court has consistently adhered to regarding the power of municipal electors to refer municipal ordinances and resolutions. See, e.g., City of Mission v. Abourezk, 318 N.W.2d 124 (S.D.1982); Roush v. Town of Esmond, 73 S.D. 406, 43 N.W.2d 547 (1950); State ex rel. Saylor v. Walt, 66 S.D. 14, 278 N.W. 12 (1938); State ex rel. Martin v. Eastcott, 53 S.D. 191, 220 N.W. 613 (1928); State v. Davis, 41 S.D. 327, 170 N.W. 519 (1919); St.ate ex rel. Wagner v. Summers, 33 S.D. 40, 144 N.W. 730 (1913).
In Summers, the court was unwilling to add a judicial gloss to the legislatively granted power of municipal referendum elections by restricting the right of refer*150endum to only those resolutions that are legislative in nature. The court held that as amended in 1898, article III, § 1 of the state constitution did not limit or restrict the legislature to authorizing the referendum in municipalities solely to laws or matters having the effect of law. There being no constitutional limitation upon the authority of the legislature, the court concluded that it was not within its prerogative to impose such a limitation through judicial construction or interpretation of the statutes authorizing municipal referendum elections.
The court also held that a municipal resolution encompasses all determinations of a municipal governing board that do not take the form of an ordinance. “Resolution” is presently defined by statute to mean
any determination, decision, or direction of the governing body of a municipality of a special or temporary character for the purpose of initiating, effecting, or carrying out its administrative duties and functions under the laws and ordinances governing the municipality.
SDCL 9-19-1.
As is readily apparent from our decisions, this court has given a broad reading to the municipal referendum provisions of our constitution and statutes. As recently as January of this year we stated:
As a general rule, all legislative matters in which the voters have an interest are subject to the referendum unless they are excepted by constitutional provisions. A state constitutional exception which reserves power to the legislature and precludes review by the people under the referendum is an expression, within sound rules of construction, of a reservation to pass on all things not so specified. Exceptions to the right should be denied the people unless the act in question is plainly included in one of the excepted classes.
Byre v. City of Chamberlain, 362 N.W.2d 69, 79 (S.D.1985).
Given the consistency of our holdings on this issue, I conclude that it is for the legislature to narrow the scope of referable resolutions by appropriate amendments to SDCL ch. 9-20 that would except from referendum resolutions purely administrative in nature. True, we no doubt could accomplish the same result by judicial interpretation and construction, cf. State v. Wikle, 291 N.W.2d 792 (S.D.1980), but it is more forthright to leave it to the legislative branch to narrow the reach of the referendum statutes. Were we to take the step that the Summers court concluded it was unable to take, no doubt the legislature could readily amend SDCL ch. 9-20 to overturn such a decision.
In any event, Summers and its progeny have apparently not resulted in paralysis in municipal government. Accordingly, I would affirm the trial court’s decision that the decision to hire officer Lewis was referable.