If a South Dakota city council passes something labeled a 'resolution' to join a regional solid waste district, and the mayor vetoes it, can the council override the veto with a two-thirds vote, the way it can override the veto of an 'ordinance'?

Plain-English summary

Custer's mayor and city council disagreed about joining a regional solid waste management district. The council passed something labeled a "resolution" on June 7, 1993, approving the articles of incorporation and committing Custer to the district. The mayor vetoed on June 14. On June 21, the council overrode the veto by a two-thirds vote. The mayor asked the AG four questions about the limits of his veto and the council's override power.

The AG's framework was substance-over-label. South Dakota's statutes (SDCL 9-19-10 and 9-19-11) authorize a council to override the veto of an ordinance by two-thirds vote, but there is no parallel override provision for resolutions. The Legislature, however, defined "ordinance" and "resolution" by content, not by label. SDCL 9-19-1 says an ordinance is "a permanent legislative act of the governing body" and a resolution is a "determination, decision, or direction... of a special or temporary character for the purpose of initiating, effecting, or carrying out its administrative duties." So the substantive test was: is the action legislative-permanent (ordinance) or administrative-temporary (resolution)?

The AG looked to the referendum line of cases, particularly Wang v. Patterson, where the SD Supreme Court treated discretionary local action as legislative ("where discretion is left to the local government as to what it may do, when the local government acts, it acts legislatively"). The AG also drew on SDCL 9-20-19's definition of "legislative decision" (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).

Applied to Custer's waste-district commitment, the AG found legislative substance. SDCL 34A-16-1 made joining a district discretionary. SDCL 34A-16-49 stated the legislative finding that such districts were in citizens' interest. The action committed Custer to a course of policy with future rules of conduct, gave the district contract authority over the city, and had general and permanent consequences. Even though the Legislature called the formation document a "resolution" in SDCL 34A-16-2, the AG read that as a labeling convention, not a substantive determination. The action was substantively an ordinance.

That conclusion answered question one: yes, the council could override the mayor's veto of this particular enactment, because in substance it was an ordinance, even though labeled a resolution. The AG also acknowledged a tension with a 1939 prior AG opinion that had read the mayor's veto power to extend only to legislative resolutions, but found the tension immaterial to the answer.

Question two asked whether the mayor could counter-override the council's override. The AG found no statutory authority for any such mayoral counter-action and answered no. The override stood.

Question three asked about line-item vetoes of budget items. The AG noted that SDCL 9-8-3 gives the mayor power to veto a part or item of an ordinance appropriating money, and SDCL 9-19-10 confirms that line-item vetoes are part of the framework. The override authority in SDCL 9-19-11 covers full ordinances; the AG concluded by implication that the lesser power to override a line item was included in the greater power to override the full ordinance.

Question four asked where the mayor's regulatory power stops. The AG gave the standard answer: a mayor has only those powers expressly granted by statute, plus those necessarily implied to carry out the granted powers. The earlier three answers illustrated specific limits in practice.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The SDCL chapters cited (9-8, 9-19, 9-20, 34A-16) have all been amended over the decades since this opinion. Modern municipal governance also includes home-rule charters, council-manager configurations, and statutory reforms that may shift the veto-override analysis. Cities facing a veto dispute today should consult current SDCL and recent SD Supreme Court decisions on the ordinance-resolution line.

What the opinion meant at the time

For mayors and city councils statewide, the opinion established a clear substance-over-label rule. A council that labeled a legislative-character action as a "resolution" could not insulate the action from the veto-and-override structure that applied to ordinances. The corollary was that a mayor who vetoed an ordinance labeled a "resolution" did not gain immunity from override by virtue of the label.

For city attorneys advising on whether a particular enactment was overridable, the opinion supplied two diagnostic questions. First, was the action discretionary at the local level (per Wang)? If yes, it leaned legislative. Second, did it lay down a rule of conduct or course of policy with general and permanent consequences (per SDCL 9-20-19)? If yes, again legislative. An action that merely executed a previously adopted plan or supervised a program was administrative.

For mayors specifically, the opinion clarified that the line-item veto in SDCL 9-8-3 was real, and the council could in turn override it. The veto power was not nullified by an unfavorable council, but it was also not absolute.

For regional waste management districts (and analogous interlocal cooperative arrangements), the opinion confirmed that the city's act of joining was a substantive ordinance subject to the same veto-and-override process as any other ordinance. That mattered because the decision to join was discretionary and committed the city to the district's authority over time.

For citizens, the opinion underscored the constitutional and statutory accountability of the city council as the primary legislative body, with the mayor playing an executive and veto role. The two-thirds council majority was the override threshold; absent that supermajority, the mayor's veto held.

Common questions

Q: If our council passes a resolution, can the mayor veto it?
A: SDCL 9-8-3 says yes, the mayor may sign or veto any ordinance or resolution. The veto exists regardless of label.

Q: If the mayor vetoes a resolution, can we override?
A: Only if the resolution is substantively an ordinance (legislative and permanent). SDCL 9-19-11's override authority applies only to ordinances. A truly administrative resolution that has been vetoed stays vetoed, because there is no statutory override mechanism for it.

Q: How do we tell whether our action is substantively an ordinance or a resolution?
A: Two questions to ask. First, is the action discretionary at the city level (per Wang)? Second, does it lay down a rule of conduct, a course of policy, or have general and permanent consequences (per SDCL 9-20-19)? If both yes, it is substantively an ordinance.

Q: We are joining a regional district under a state statute that calls the joining action a 'resolution.' Does that label control?
A: No. The 1993 AG opinion specifically held that the SDCL 34A-16-2 reference to "resolution" was a label convention. The substantive analysis controlled. The waste district joining was treated as an ordinance for veto-override purposes.

Q: Can the mayor counter-override the council's override?
A: No. The AG found no statutory authority for any such counter-action. Once the council overrides a veto by two-thirds vote, the ordinance becomes effective.

Q: Can the mayor exercise a line-item veto on a budget?
A: Yes. SDCL 9-8-3 expressly gives the mayor power to veto "any part or item of an ordinance or resolution appropriating money." SDCL 9-19-10 confirms that the veto can extend to one or more items in an appropriation ordinance.

Q: Can the council override a line-item veto?
A: Yes. The AG's reading of SDCL 9-19-11 was that the override authority over a full ordinance necessarily includes the lesser authority over a single line item.

Q: How long does the mayor have to veto after the council passes an ordinance?
A: Under SDCL 9-19-10, ten days from passage upon second reading.

Q: What is the override threshold?
A: Two-thirds of all aldermen, per SDCL 9-19-11.

Q: How does this compare to the 1939 prior AG opinion?
A: The 1939 opinion read the mayor's veto power to extend only to resolutions of a legislative character. The 1993 AG departed from that on a narrow technical point but did not reach a different result on the facts. SDCL 9-8-3's plain language authorizes the mayor to veto any resolution, but the override path is still available only when the underlying enactment is substantively an ordinance.

Background and statutory framework

South Dakota's municipal governance code allocates legislative power primarily to the council and executive power, including the veto, to the mayor. SDCL 9-19-1's definitions of ordinance ("a permanent legislative act of the governing body") and resolution ("any determination, decision, or direction... of a special or temporary character for the purpose of initiating, effecting, or carrying out its administrative duties") set the substantive divide.

The SD Supreme Court has applied a similar legislative-versus-administrative distinction in the referendum context. Wang v. Patterson, 469 N.W.2d 577 (S.D. 1991) held that discretionary local action is legislative; Shaw v. Common Council of City of Watertown, 63 N.W.2d 252 (S.D. 1954) treated the council as the primary legislative body with the mayor in an executive role. SDCL 9-20-19 codified the practical test by defining a "legislative decision" as one that enacts a permanent law or lays down a rule of conduct or course of policy.

The veto framework runs through SDCL 9-8-3 (mayor may sign or veto any ordinance or resolution; may exercise line-item veto on appropriations), SDCL 9-19-10 (mayor's veto by written objection within ten days), and SDCL 9-19-11 (council override by two-thirds vote of all aldermen). The override authority is expressly limited to ordinances.

The 1993 AG used the substance-over-label principle articulated in Valandra v. Dep't of Commerce and Regulation, 425 N.W.2d 400 (S.D. 1988) ("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") to bridge the gap. When the Legislature in SDCL 34A-16-2 called the act of joining a regional waste district a "resolution," it was using the term as a label convention, not making a substantive determination that displaced SDCL 9-19-1's content-based definition.

The result was a clean rule: in South Dakota, the override of a mayor's veto turns on whether the enactment is substantively an ordinance, not on whether the council called it an ordinance or a resolution. Joining a regional waste district was substantively an ordinance and could be overridden.

Citations and references

Statutes:
- SDCL 9-8-3 (mayor's veto power, including line item)
- SDCL 9-19-10 (mayor's veto procedure)
- SDCL 9-19-11 (council override by two-thirds vote)
- SDCL 9-19-1 (definitions of "ordinance" and "resolution")
- SDCL 9-20-19 (legislative versus administrative decisions for referendum)
- SDCL 34A-16-1 (municipal authority to join regional waste management districts)
- SDCL 34A-16-2 (initiative and referendum on district-formation resolutions)
- SDCL 34A-16-3 (district commissioners drawn from local elected officials)
- SDCL 34A-16-14 (district contracting power)
- SDCL 34A-16-49 (legislative findings on waste management districts)

Cases:
- Sioux Falls Municipal Employees Ass'n, Inc. v. City of Sioux Falls, 233 N.W.2d 306 (S.D. 1975) (municipality has only statutory authority)
- Shaw v. Common Council of City of Watertown, 63 N.W.2d 252 (S.D. 1954) (council as primary legislative body)
- Wang v. Patterson, 469 N.W.2d 577 (S.D. 1991) (discretionary local action is legislative)
- Yost v. Thomas, 685 P.2d 1152 (Cal. 1984) (analogous out-of-state authority)
- City of Idaho Springs v. Blackwell, 731 P.2d 1250 (Colo. 1987) (meaning of "permanent" in municipal acts)
- Valandra v. Dep't of Commerce and Regulation, 425 N.W.2d 400 (S.D. 1988) (statutory construction by manifest intent)

Prior AG opinions referenced:
- AGO 90-11 (legislative versus administrative distinction)
- AGO 93-03
- Op. Atty. Gen. 473 (1939) (mayor's veto extends only to legislative resolutions)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=123

Original opinion text

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 §§ 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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