
    TOOHEY, Respondent, v. BURNSIDE, Mayor, et al (MONSERUD et al Intervener), Appellants.
    (168 N. W. 742).
    (File No. 4372.
    Opinion filed Sept. 3, 1918).
    1. Appeals — Respondent’s Death After Briefs Filed — Enjoining City Election — Appellate Jurisdiction re Merits — Public Rights, Welfare as Affecting.
    Where, after briefs on both sides were filed, upon appeal to Supreme Court from an order temporarily enjoining defendants mayor and city commissioners, from calling an election for selection of a new board of commissioners under Laws 1917 Ch. 303 (known as the City Manager Law), plaintiff and respondent died; certain existing commissioners being .parties defendant as interveners, and being sole appellants; held, that the contention by counsel who prepared respondent’s brief, and who, disclaiming the right to ‘further represent respondent on the appeal, and who act solely as amici curiae, that without substitution of party respondent Supreme Court is without jurisdiction to entertain and determine the appeal upon its merits, is untenable; that the cause of action merged in the order appealed from; that, the cause having been submitted upc-n briefs prior to respondent’s death, the Court has jurisdiction to determine the validity of the order; especially in view of the nature of the action, involving, as it does, publish rights and interests affecting public welfare.
    2. Statutes — Constitutionality — Title — City Manager Law — More Commissioners, Whether Substitutionary for Old — Former Decision Approved.
    Laws 1917, Ch. 303 (known as, the City Manager Law), wherein its title declares it to be an act authorizing employment of city managers ¡by city commissioners and cities governed by a mayor and board of aldermen, and increasing the number of commissioners and powers of cities employing city managers, is unconstitutional,' wherein it provides for election of such commissioners, and that upon their qualification, etc., the term, of office of their predecessors in office shall cease; there being nothing in the title indicating or advising legislators or the public that the law intends to and provides for superseding of existing commissioners by a new body; the title being clearly misleading in that it leads to belief that the law in this respect merely provides for an addition to and increase of the existing board of commissioners.
    3. Courts — Unconstitutional law, Re Title — Reasonable Doubt Re— Adjudicating Validity — Rule.
    When a Legislature adopts a specific title for an act, it must see to it that such title is not misleading. Mindful of the rule, that, in order to warrant holding legislation unconstitutional, courts should he satisfied of unconstitutionality beyond reasonable doubt, yet the rule announced in Insurance Co. v. Basford, 31 S. D. 149, that the people, in their soverign capacity, having placed the constitutional restriction (Const. Art. 3 Sec. 21) upon methods of legislating, the Legislature must conform thereto, else their action will he without effect, and that courts’ duty is to determine when such rule has been disregarded, and when so found, to so adjudicate — is hereby approved.
    Gates, J., taking no part in the decision.
    Appeal from Circuit 'Court, Minnehaha County. Hon. Joseph W. Jones, Judge.
    Action toy John H. Tooheyj against George W. Burnside, mayor, and; cithers as city oomimission'ers, in which 'M. O. Mooserud and others intervened, to enjoin the calling of a city election for election of city commissioners. From am 'Order temporarily restraining defendants, the interveners appeal
    Affirmed1.
    
      Caldwell & Caldvtrell, and Wagner & Danforth, 'for Appellants.
    
      Bailey & V oorhees, and Aikens & Judge, for Respondent.
    (i) To point one of the opinion, Appellants cited:
    Oarr vis. Rilsiher, (N. Y.) 25 N. E. 296; Ked-ley vs. Kelley, (Ind.) 37 N. E. 545; Phel'an vs. Tyler, (Cal.) 28 Pac. x 14; Golds-borough vs. Hewitt, (Okla.) no Pac. 906; Bell vs. Bell, 181 U. S'. 179; 45 H. Ed. 804; Danforth vs. Danforth, m 111. 236.
    Respondent cited:
    Chicago, Milwaukee & St. Paul Railway Company vs. ’Commissioners of the City of Sioux Falls, 28 S. D. 471.
    ■Counsel as Amici curiae cited :
    Code Civ. Proe. Secs. 91, 92, 93; Jarvis-vs. Feloh, (N. Y.) 14 Abbotts’ Pr. 46,; Reed vs. Buibler, (N. Y.) 11 Abbotts’ Pr.- 128; Ridgeway vs. Bulkley, 7 How. Pr. 269.
    (2) To point two, Appellants cited: •
    State ex rel, vs. Bentley, (Kas.) 164 Pac. 290; State vs. Thompson, (Ala.) 69 So. 461.
   WHITING, P. J.

Acting under the1 provisions of chapter 303, Laws of 1917 (known as the C'iity Manager Law), the ¡city of Sioux Palls held an election for the purpose of 'determining 'whether such city should adopt the provisions of said1 law. Said- law requires, in case a city elects ¡by the vote of its people to come under its provisions, that, within a time therein named- another election shall 'be held ¡to select a new board of commissioners to take the place of the existing hoard1 of commissioners in commission governed cities such as Sioux Falls. Understanding itbat a majority of the electors had voted in favor of -adopting the provisions of said-la-w, plaintiff, prior to the canvass -of -said-"votes, brought this acti-o-n ¡seeking to enjoin defendants, a-s- commissioners- of said city, from -canvassing the vote cast at said election and declaring the result thereof, and from ¡calling the election for ithe -purpose oif -dho-o-simg a new board- of 'commissioners. The ground's upon which plaintiff based- his right to relief 'wias the alleged -uoconstitutioinality of the law in question. Defendants -answered -alleging the -constitutionality of the law; the fact that the electors had voted1 in 'favor of -adopting the provisions thereof, -and their diu-ty to ¡canvass the votes and ■call the second* -election. The interveners, electo-rsi and1 -taxpayers of said city, sought amid 'were -allowed to intervene; they- alleging ¡as grounds therefor that defendants 'were in truth and fact in- sympathy with plaintiff’s -action in instituting this suit amdi desirous of his success for the re'ason that, i-f ¡the provisions- of -said1 law -were adopted by said city and a new board of commissioners -elected, the result would be to terminate the terms of -office of said -defendants. The trial court granted a temporary injunction- restraining defendants from proceeding ' to call said second'- election. From- such order of ¡the trial ¡court interveners and! -they alone appealed. After the ¡taking' of su'dhi appeal -and after -the panties 'thereto had filed ini this ¡court their printed briefs amdi there remained nothing further to be -done before 'the final 'disposition of such appeal except 'the presentation) ¡of oral arguments, respondent, on tire ninth- day of July, 1918, died'. Appellants-, upon notice served upon- ¡counlsleli for respondent, -moved this court to proceed ito oonsiiider ¡and decide the appeal regardless of the fact of the -death' of respondent -and of the further fact ibhiat there had1 been no substitution- -of party respondent. Tine ¡counsel who ¡had represented respondent took the position that they bad no authority to appear in -court ¡after the death ¡o.f respondent, and for that ¡reason, they -declinad -to present an .oral' alignment upon -appeal. This courit, having requested the respective counsel to present briefs upon the question ¡of the jurisdiction of this; court toi -determine the .appeal upon its merits without -a substitution ¡of party -respondent; briefs were presented- upon .such question by such attorneys, the former attorneys for respondent appearing ¡as amici- curiae.

Thus the first matter 'for our consideration ¡and determination is this question of the jurisdiction of tbi-si court to¡ dispose of and' propriety of this court in -disposing of the .appeal before any substitution of party respondent shall have been made. It is clear that statutes relating to abatement of ¡causes of action ¡have no ¡application to the facts presented here. The cause of action has merged in the order of the trial court. That .being the situation and ¡this cause having been submitted to this count upon written briefs- prior to- death' of respondent, there not only rests in. this court full and complete jurisdiction to- -determine the validity of such order (1 ¡Corpus' Juris-, 169, and! cases ¡cited), but, in ¡view of ¡the nature of this action — the public rights -involved therein, ¡and the relief granted1 by the trial 'c-oiurt — we deem -it -highly proper -and in the ¡interests -of the public welfare that .we proceed to¡ determine the merits of Itriis appeal.

Res-pion-die-nt questions' the .constitutionality of ¡the law in question upon several -different grounds. We find it unnecessary to. consider but one of the grounds urged. 'Article 3, § 21 .of ¡our Con-' stitutiomi provides: “No la¡w, .shall embrace mb-re than one subj-edt, which shall be expressed- in its title.” The title -of -the law before u-3 ¡is as follows.:

“An act entitled, an a-ct toi authorize the employment of city managers by cities under commission!, and cities governed' by a mayor and board of aldermen, -and prescribing ¡the procedure therefor and increasing the number of 'commissioners ¡and powers of cities employing -city managers.”

The law provides for the election, at this second election — the one enijlolinied by the order appealed from — «f nine commissioners, and' further provides that said body of nine commissioners should • qualify and' enter upon- their duties, and that upon such qualifim,tion by the new board, the. term of offíce of their predecessors shall ■cease. It is contended by 'respondent, and we think'rightfully, that there is nothing ,i« the title to indicate io'r advise the legislators or the public that the law ‘intends to and' does provide for the superseding of the existing commissioners by a new .body; but that the title -is clearly misleading, in that it iwonld lead one to. believe that the -law provides for an addition to and increase of such board 'of ■commissioners ;as might be existing at the -time that any city elects to adopt this plain of government. There can be no question but ■that the Legislature bad the power, .in an act having a proper tifié, to emalct the provisions We are niolwi considering. Under a general title, such asl was 'before (the court in State v. Bentley, 100 Kan. 399, 164 Pac. 290, cited by appellants, this- might have been done. The title of the law before the court in that case was: ■

“An .act relating td the government .of all cities of 'Kansas, and to establish 'an optional form of government.”

But when a Legislature 'adepts a specific title- for an act, it must see to it that such title 'is not misleading. We are not unmindful of the rule so. often declared by this count that, in order to warrant a 'holding that legislation iis unconstitutional, a court should be satisfied of its! uniconstitutionality beyond 'a reasonable doubt; but we are mindful of what we announced in Insurance Co. v. Basford, 31 S. D. 149, 139 N. W. 795, and reiterated in State v. Young, 37 S. D. 196, 157 N. W. 325, when speaking of this same section of our 'Constitution as we are nlow considering:

“Ours is- a constitutional -government, the people, in their sovereign capacity, have placed the above restriction' upon the methods of legislation, have prescribed the above rule which- their legislative servants must conform to, and, if they neglect to conform to this rule and keep within this restriction, their labor, nlo matter bow meritorious, otherwise, will be of no effect, as this section of the Constitution is mandatory. * * * To' the courts is left the duty of determining .when the Legislature ih-as disregarded' such rule and restriction; and, when It is found that either of these provisions of the '.supreme law of ithe -state has been- disregarded, the -further duty 'of the courts is" -clear, let the consequences be -what -they may.”

Tire title'to the law -before us i® Clearly misleading, and much that wia-s said by us ini State v. Young, s-u-pra-, is peculiarly applicable -thereto. As said by this Court in State v. Becker, 3 S. D. 29, 51 N. W. 1018, and- reiterated fe State v. You¡rag, Supra, the above provision of our lOon-stit-utilctn was “-intended to prevent the insertion into bills of matter or measures of w-hi-oh the title gave nio notice br intimation, anid thus to -deceive -or mislead the individual legislators ’ amid the public generally.”

A reference to the title lolf this act show® that the act wa-s to provide, -mot only for “increasing * * *" power óf'cities employing city -managers.” Would any one f-or a moment Co'nteridi that, u-nider suichl a title, it would have been proper -for -the Legislature to have prescribed the powers ioif such, -a city adopting the provisions- of such -a'ct, and to have provided itihiat sutoh powers- -shloul-dl take the place of and' supersede the powers .theretofore 'possessed' by -such city? Certainly not. The title 'was-a clear notice that the powers 'pr-oividedi fo-r by 'the act were in addition Ito the polwer® already possessed by such -city.- • A® a fair illustration of the question, before uls, w-e Would call'attention to -article'5, § 6, of -our Oonsittution, which reads as -follow®:

“The number-of said [Supreme 'Court] judges * * * may after 'five years from the' admission -of this state unid-e'r this Constitution, ■ be increased by law to not exceeding five.”

' Wlciuld any one contend that, under this constitutional 'provision/ — because' of ' the fee of -the word “increased” therein — the Legislature not only was empowered to provide by law- for a bench of five judge®, but that it -had authority to provide for the appointment or election iof -a bench of five judges-, and that, u-po-n1 -their tjuial'ifymg, the terms of the three judges then dm'office should terminate? Certainly the power to increase the number of judges did not include the power to provide for an entirely new body of judges to supersede the -existing body. It follows that the notice, given by" thé title of this 'act, -that one of the subject® covered by such -a-c't was tifie 'increasing of .the number of óommisBiionérs, diid not aidlvis'é tire' Legislature or tine public tlnatj in the 'body of such act, there -might be 'found- a' 'provision under -which á' new iblolard of 'nine commissioner® was to b'e chosen Who would supersede the commissioners then in office; but su'chi title did give nlolti'ce to the Legislature and the public thlat isiuch a!ct by- its 'provisions merely added new members to the existing board, thus increasing such board to one of nine ■members. This act being unaonstibutiohal in so far as it attempts- to provide for the election of a nawi board to supersede the old1 bo'ard, and' -inasmuch -as this was the sole purpose of the election -the calling .of which was. -restrained, the. trial court rightfully issued the order from which this appeal was taken.

GATBS, J., takes no p'art in this 'decision. '  