December 17, 1993

The Honorable Lee R. Sutton
Mayor of Custer
622 Crook St.
Custer, SD 57730

OFFICIAL OPINION NO. 93-15

City council's power to override a mayor's veto

Dear Mayor Sutton:

You have asked for an official opinion of this office regarding the following facts:

FACTS:

On June 7, 1993, the Custer City Council approved and adopted a resolution which approved the Articles of Incorporation for a regional solid waste management district, and entered the municipality in the district. On June 14, 1993, you vetoed that resolution. On June 21, the Council by a vote of two-thirds of its members overrode your veto.

Based on these facts, you have asked the following questions:

QUESTIONS:

1. Does a city council have the authority to override a veto on: (a) an ordinance; or (b) a resolution?
2. Does a mayor have the ability to override the city council decision to override the mayor's veto?
3. Can a city council override the veto of a line item contained in the budget process?
4. Where does the power of a mayor to regulate stop?

IN RE QUESTION NO. 1:

As an initial principle, a city council may override a mayor's veto only of an ordinance. First, a governing body of a municipality possesses only such authority as is conferred upon it by law, together with such powers as are necessary to carry into effect those granted. Sioux Falls Municipal Employees Ass'n, Inc. v. City of Sioux Falls, 233 N.W.2d 306 (S.D. 1975).

In regard to the instant question, a series of statutes delineates the powers of the mayor and city council regarding the veto and passage notwithstanding veto of enactments. SDCL 9-8-3 provides, in pertinent part, that the mayor:

[S]hall have the power to sign or veto any ordinance or resolution passed by the common council, and the power to veto any part or item of an ordinance or resolution appropriating money.

(Emphasis added.) SDCL 9-19-10 provides, in pertinent part:

In municipalities with a common council the mayor, if he disapproves of an ordinance, may veto the same by filing his written objection thereto with the auditor within ten days of its passage upon second reading.

Finally, SDCL 9-19-11 provides:

If the mayor veto [sic] any ordinance, it shall be presented by the auditor with the mayor's written objection to the next meeting of the council and may be reconsidered. If it shall pass by a two-thirds vote of all the aldermen, it shall be published and become effective notwithstanding the mayor's disapproval.

While SDCL 9-19-11 clearly gives the authority to the city council to override the veto of an ordinance, no statute specifically gives the council the same power over the veto of a resolution.

This inquiry must continue, however, with an examination of whether the enactment in question is actually an "ordinance" or a "resolution" for the Legislature has indicated that a content-based analysis of terms is required. SDCL 9-19-1 provides:

The word "ordinance" as used in this title shall mean a permanent legislative act of the governing body of a municipality within the limits of its powers.

The word "resolution" as used in this title shall 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.

This statute primarily distinguishes these types of enactments on the basis of their characterization as "legislative" or "administrative"; ordinances are legislative in character; resolutions are administrative in character. See also AGO 90-11.

Legislative and administrative acts may be further defined by law in relation to citizen referendum proceedings. The former city actions are subject to referendum while the latter are not. Wang v. Patterson, 469 N.W.2d 577 (S.D. 1991). According to the South Dakota Supreme Court, this distinction

[I]s rooted in realism. Clearly, all municipal action cannot be subject to local review by the electorate. If government is to function, there must be some area in which representative action will be final.

The present issue turns on similar concerns, namely, the location and limits of legislative authority within a particular body. The South Dakota Supreme Court has noted that statutes which prescribe the duties of city council and mayor reveal an intention to charge the council with the power and duty to make decisions for a municipality and for the mayor then to execute those decisions. See Shaw v. Common Council of City of Watertown, 63 N.W.2d 252, 254 (S.D. 1954). Consistent with this separation of power, South Dakota statute law places the final authority over legislative acts (ordinances) with the council, the city's primary legislative body. SDCL 9-19-1.

Although most of the distinctions related to legislative, as opposed to administrative acts, have been analyzed in the referendum context, I do not think that a legislative act by a city council materially differs in definition from a legislative act by citizens. Consequently, I here apply the definitions from the law regarding referendum to the veto power issue. (See AGO 93-03.) First, SDCL 9-20-19 distinguishes the two types of city actions by providing, in pertinent part, that:

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.

Wang, 469 N.W.2d at 579.

Applying this statute, the South Dakota Supreme Court has added that "Where discretion is left to the local government as to what it may do, when the local government acts, it acts legislatively . . . ." Wang, 469 N.W.2d at 580. See also Yost v. Thomas, 685 P.2d 1152 (Cal. 1984). (When the state land use act left discretion to a local government not only to determine the contents of land use plans, but also to choose how to implement them, the city acted legislatively.)

In addition to the legislative/administrative distinction, SDCL 9-19-1 declares that ordinances are "permanent" in nature, while resolutions are "special" or "temporary." The term "permanent" "is used to signify a declaration of public policy of general applicability, because a permanent enactment is more likely to involve policy considerations." City of Idaho Springs v. Blackwell, 731 P.2d 1250, 1254 (Colo. 1987). In other words, the term describes another characteristic of policy or rule making.

Your municipality's decision to join the waste management district includes the characteristics of an ordinance, primarily, of course, due to its legislative character. First, the act was discretionary. SDCL 34A-16-1 provides that any municipality may create such a district. Such discretion is confirmed in SDCL 34A-16-49(4), which constitutes a finding by the State Legislature that it is in the best interests of South Dakota citizens that such districts be permitted to be formed by counties and municipalities. The action's discretionary nature is important. Wang, supra.

In addition, the adopted scheme clearly provides a course of policy for the guidance of the citizens and officers of Custer. In particular, the districts are formed to protect citizens from the potential health and safety consequences of inadequate or outdated waste management facilities and to meet the increasing costs and regulation requirements connected with such tasks. SDCL 34A-16-49. Further, the statutes governing the district provide that the commissioners of the regional recycling and waste management district shall be composed solely from elected officials from the local governments included in the district. SDCL 34A-16-3.

Once formed, the district has a wide variety of statute-granted powers (see SDCL <185><185> 34A-16-6 to 34A-16-45, generally), including the ability to enter into any contract, as necessary or proper for the exercise of its powers or the accomplishment of its purposes. SDCL 34A-16-14. In other words, the adoption of the articles of incorporation does not so much provide a rule of conduct as it does a policy course. That course subjects the municipality to the authority of the district on certain matters, which authority is guided by the policy and guidelines contained in the statutes. It also subjects the municipality to the certainty of future rules of conduct. Clearly, the act of committing the city to this course has general, permanent consequences of the sort contemplated by the definition of "ordinance." Consequently, the council's decision most closely fits that definition as set out in SDCL 9-19-1.

I note that the Legislature plainly stated that creation of districts occurs by authorizing "resolutions," and that this legislative statement would appear to argue against a determination that the action creating the district was, in fact, an "ordinance." I nonetheless conclude that the action constitutes an ordinance. In resolving apparent conflicts of this nature, statutory provisions "should be given a sensible, practical and workable construction, and to such end, the manifest intent of [the] legislature will prevail over the literal meaning of words." Valandra v. Dep't of Commerce and Regulation, 425 N.W.2d 400, 402 (S.D. 1988). That intent must be derived from the statute as a whole, as well as other enactments relating to the same subject. Id.

Application of those rules of construction in this instance supports the conclusion that the council's enactment was an ordinance. First, as has been noted, state statutes reveal the intent to vest the city council with the primary legislative authority. See Shaw, 63 N.W.2d at 254. Additionally, the Legislature has indicated in SDCL 9-19-1 that the courts should look to the actual content of the action before determining if a particular act is an "ordinance" of a "legislative character" or, in contrast, a "resolution" with an "administrative character." Given the emphasis on the substantive characterization of enactments, I conclude that the Legislature manifestly intended that a legislative, permanent act of the city council should be treated as an ordinance, regardless of whether it is labeled as such.

In this case, as I have already concluded, the act of authorizing entry by a municipality into a solid waste management district is a legislative, permanent act, not merely administrative in nature. Interestingly, inasmuch as SDCL 34A-16-2 provides that any such "resolution" is subject to initiative and referendum, such indicates that the Legislature also views that enactment as legislative in nature. Consequently, the statute confirms that in this instance the city council's action was an ordinance and the council could override the mayor's veto.

Notably, this opinion departs to a certain extent from that of one of my predecessors, although the departure is not significant to the facts of this case. Op. Atty. Gen. 473 (1939). That opinion, which appears to have construed statutes substantially similar to those at issue here, concluded that a mayor had power to veto only resolutions of a legislative--as opposed to administrative--character. I am, however, reluctant to disregard the plain, uncontradicted language of SDCL 9-8-3 which gives a mayor the authority to veto any resolution or ordinance. This is not dispositive here, however, because the legislative nature of the enactment in question enables it to be passed over the mayor's veto, even though it has otherwise been designated a "resolution," under both Op. Atty. Gen. 473 (1939) and this opinion.

In summary, while a city council generally only may override a veto of an ordinance, in this instance the enactment in question, although nominally a resolution, in substance more closely resembles an ordinance; consequently, it is subject to veto override by the city council.

My answer to your first question is that a council generally may not override the veto of a resolution; in this instance, however, the vetoed enactment met the statutory definition of "ordinance" and consequently was subject to override.

IN RE QUESTION NO. 2:

Your second question asks whether the mayor has the ability to override the city council decision to override the mayor's veto. I find no statute or case law giving the mayor such authority. Nor do I find it necessarily implied by any other statutory grant of authority. Therefore, in the absence of any explicit legal authority (see Sioux Falls Municipal Employees, supra), the answer to your second question is "no."

IN RE QUESTION NO. 3:

Your third question asks whether the city council may override the veto of a line item (SDCL 9-8-3) contained in the budget process. The answer to that question is "yes."

SDCL 9-19-10 provides, in pertinent part, that a mayor's veto of an ordinance:

[M]ay extend to any one or more items contained in an ordinance making an appropriation or to the entire ordinance, and in case the veto only extends to a part of such ordinance, the remainder shall take effect.

As mentioned in my discussion regarding Question No. 1, SDCL 9-19-11 allows the city council to pass a provision over the mayor's veto if it passes by a two-thirds vote. That provision does not specifically provide for override of a line item veto. In my opinion, however, the authority to pass an entire ordinance over a mayor's veto necessarily implies the authority to pass the smaller provision that has been subjected to the line item veto.

IN RE QUESTION NO. 4:

Your fourth question asks where the power of the mayor to regulate stops. As has already been mentioned, the mayor and other city officers have only those powers granted by statute or those obviously necessary to carry out those powers that are granted specifically. My discussion in relation to the three prior questions provides specific instances of the limitations on a mayor's power.

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