AGO 85-08.

• Court: North Dakota

North Dakota Attorney General Opinions 1985. AGO 85-08. OPINION 85-8Date Issued: February 4, 1985 (AGO 85-8) Requested by: Hugh P. Seaworth, Bismarck City Attorney- QUESTION PRESENTED - Whether an ordinance granting a cable television franchise and providing the terms and conditions of that franchise may be referred to the electors of the city.- ATTORNEY GENERAL'S OPINION - It is my opinion that an ordinance granting a cable television franchise and providing the terms and conditions of that franchise may not be referred to the electors of the city. - ANALYSIS - North Dakota law specifically provides for the enactment of ordinances by cities so as to carry into effect those powers statutorily granted to such cities. N.D.C.C. section 40-05-01(1). One such statutory power granted to cities is the authority to grant franchises and privileges to persons, associations, or corporations. N.D.C.C. section 40-05-01(57). Such franchises granted by a city remain subject to the regulatory powers of the governing body. Id. North Dakota law also provides authority for the referral of a city ordinance to the electors of that city upon the filing of a petition protesting that ordinance. This authority is found in N.D.C.C. section 40-12-08 which states, in part, as follows:

An ordinance which has been adopted by the governing body of a municipality may be referred to the electors of the municipality by a petition protesting against such ordinance.

There are no North Dakota cases on the question of whether all ordinances enacted by a municipality are subject to the power of referral provided for in N.D.C.C. section 40-12-08. However, this question has occurred in other jurisdictions and has resulted in a generally accepted rule of law on the referral of municipal ordinances:

Generally, an enactment originating a permanent law or laying down a rule of conduct or course of policy for the guidance of citizens or their officers or agents is purely legislative in character and referable, while an enactment which simply puts into execution previously declared policies or previously enacted laws is administrative or executive in character and not referable. 42 Am.Jur.2d., Initiative and Referendum section 12 (1969).

This general rule of law as to the limitations upon the power to initiate and refer municipal ordinances was acknowledged and...