# Title 40 — Municipal Government

## Chapter 40-04 — Commission Cities, Incorporation and Change

### § 40-04-01. Incorporation as commission city.

Any city in this state having a population of not less than five hundred inhabitants may
become incorporated as a city under the commission system of government as provided in this
section. If one-tenth of the qualified electors of the municipality, based upon the votes cast for
the office of governor at the last preceding general election, petition the governing body of the
municipality to submit to a vote of the qualified electors the question of whether the city shall
become incorporated as a city under the commission system of government, the governing
body shall submit the question to the qualified electors, appoint a time when and place or places
where the election shall be held, and designate the judges and clerks at the election. The
question may not be submitted more than once in every four years.
### § 40-04-02. Notice of election.

Notice of an election to be held under this chapter shall be given by the executive officer of
the city by publication in the official newspaper of the city as provided in section 40-01-09 for at
least twenty days.
### § 40-04-03. Form of ballot.

The ballots to be used at such election shall be in substantially the following form:
Shall the city of ________________ (naming the city) become organized as a city under the
commission system of government?
Yes ☐
No ☐
### § 40-04-04. Returns and canvass of election - Certificate to secretary of state - Officers

to continue until election.
The officials of an election held under the provisions of this chapter shall make a return of
such election to the governing body of the city and such governing body shall canvass such
returns and cause the result of the canvass to be entered upon the records of the city. If a
majority of the votes cast on the question at such election shall be for city organization under
the commission system, the auditor shall certify the adoption of such form of government and a
copy of the proceedings concerning the same to the secretary of state together with the result of
any special census taken in such city. The city officers then in office shall exercise the powers
conferred upon like officers of a city operating under the commission system of government until
their successors are elected and qualified.
### § 40-04-05. Patent issued to city by governor.

Upon the certification of the matters described in section 40-04-04, the government shall
issue letters patent, under the great seal of the state, reciting the facts, defining the boundaries
of the city, and constituting the city a body corporate and politic by the name of the city of
________________ (specifying the name of the city), and declaring that it shall be governed by
the provisions of this title applicable to cities under the commission system of government.
### § 40-04-06. Patent to city to be recorded - Use as evidence.

A patent issued by the governor under the provisions of this chapter shall be recorded in the
office of the secretary of state. Any patent so issued and recorded and the record thereof, or a
certified copy thereof, shall be conclusive evidence in all courts and places of the due
incorporation of the city mentioned therein and of all the facts therein recited.
### § 40-04-07. Special election called to elect city commissioners.

Within twenty days after the issuance of a patent incorporating any city under the provisions
of this chapter, the executive officer of the city voting such incorporation shall call a special

election for the purpose of electing the first board of city commissioners. The election shall be
held as provided in section 40-21-02.
### § 40-04-08. Change from or to commission system of government - Petition required.

Any city that has operated for more than six years under or since changing from the city
commission system of government may change its governmental organization and adopt the
city council form of government or the modern council form of government or revert to the city
commission form of government. The proceeding to change or revert shall be initiated either by
a resolution by the governing body or by a petition asking for such change signed by not less
than twenty-five percent of the qualified electors of the city. In no event, however, shall the
petition contain less than thirty signatures. In any city having six or more municipal election
precincts, not more than twenty percent of the petitioners may reside in any single precinct. For
purposes of this section, the term "qualified electors of the city" means the total number of
qualified electors voting for the office of the chief executive officer of the city at the preceding
city election. The signatures to such petition need not be appended to a single paper, but one of
the signers upon each paper shall make oath before an officer competent to administer oaths
that each signature appearing upon such paper is the genuine signature of the person whose
name it purports to be and that such person purports to be not less than eighteen years of age
and a resident of the city. Each petition, in addition to the names of the signers, shall contain the
name of the street upon and the number of the house in which each petitioner resides. Any
petitioner shall be permitted to withdraw that petitioner's name from a petition within five days
after the petition is filed. If the proceeding to change from or revert to a commission system of
government is initiated by petition, the question may not be placed on the ballot more often than
every four years.
### § 40-04-09. City auditor to pass on sufficiency of petition to change from commission

system of government.
Within thirty days after a petition to change from the commission system of government is
filed, the city auditor shall examine the petition and ascertain whether or not the petition is
signed by the required number of qualified electors. The city auditor shall attach to the petition
the city auditor's certificate showing the result of the city auditor's examination, and if the city
auditor finds the petition to be insufficient the city auditor's certificate shall show the reason for
such determination. An insufficient petition may be amended within ten days after the city
auditor's certificate is made. Within thirty days after an amended petition is filed, the city auditor
shall make an examination thereof, and if the city auditor's certificate shows such amended
petition to be insufficient, it shall be returned to the person filing the same without prejudice to
the filing of a new petition. If the city auditor shall find the petition or the amended petition to be
sufficient, the city auditor shall place the same, with the city auditor's certificate, before the
governing body of the municipality.
### § 40-04-10. Procedure upon filing of petition to change from or revert to commission

system of government - Election - Ballot.
When a petition to change from or revert to the commission system of government, with the
city auditor's certificate of sufficiency, is filed with the governing body of a city, or when a
resolution to change or revert has been adopted, the governing body shall call a special election
at which only the question of changing from or reverting to the commission system of
government will be submitted. The date of such election shall not be less than sixty days nor
more than ninety days after the date of the auditor's certificate that a sufficient petition has been
filed. The ballot to be used at the election shall include the issue presented in the petition or
resolution in substantially one of the following forms:
Shall the city of _______________ change from its organization under the commission
system of government and become a city under the council form of government?
Yes ☐
No ☐

Shall the city of _______________ change from its organization under the commission
system of government and become a city under the modern council form of government
with a five-man council?
Yes ☐
No ☐
Shall the city of _______________ change from its organization under the commission
system of government and become a city under the modern council form of government
with a seven-man council?
Yes ☐
No ☐
Shall the city of _______________ change from its organization under the commission
system of government and become a city under the modern council form of government
with an eleven-man council?
Yes ☐
No ☐
Shall the city of _______________ revert from the council form of government to the
commission system of government?
Yes ☐
No ☐
Shall the city of _______________ revert from the modern council form of government with
a five-man council to the commission system of government?
Yes ☐
No ☐
Shall the city of _______________ revert from the modern council form of government with
a seven-man council to the commission system of government?
Yes ☐
No ☐
Shall the city of _______________ revert from the modern council form of government with
an eleven-man council to the commission system of government?
Yes ☐
No ☐
### § 40-04-11. Procedure when election favors changing from commission system of

government.
If a majority of the votes cast on the question at the election provided for in section 40-04-10
favor the proposition submitted at such election, the officers elected at the next biennial election
shall be those prescribed by the provisions of this title relating to cities organized under the city
council form of government. Upon the qualification of such officers, the city shall become a city
under the council form of government.
