Appeal
from Circuit Court, Brookings County; W. W. Knight, Judge.
Proceeding
by Michael Edward Culhane, sole surviving executor of the
will of John Culhane, deceased, and another, against the
Equitable Life Assurance Society of the United States. From
an adverse order, petitioners appeal.
Reversed.
RUDOLPH
Presiding Judge.
The
question involved in this case is the effective date of
chapter 207, Laws of 1937, commonly known as the moratorium
law. The purpose of this act, as stated in its title, is to
extend "the Period of Redemption from Foreclosure and
Execution Sales of Real Estate During an Emergency Declared
to Exist." The only portions of the act with which we
are concerned at this time are the preamble and section 14
the last section of the act, which in part purports to put
the act into immediate effect upon its passage and approval.
The preamble and section 14 read, as follows:
"Whereas, the several years just passed, dominated as
they have been by poor crops and exceedingly low prices for
farm products, have been followed in 1936 by a statewide and
destructive drought causing a complete failure of all crops
with the result that owners of real estate, particularly
farmers, are without income or credit, effecting seriously
the general business condition of the State, causing large
numbers of laboring men to be without employment, and it is
estimated that approximately one-third of the whole
population of the State have been forced to seek public
relief, and
"Whereas, owners of real estate throughout the State by
reason of said conditions and their temporary impoverishment
occasioned thereby, are unable and it is believed will for
some time be unable to meet obligations for insurance, taxes,
interest, and principal of mortgage or judgment in
debtedness, and are therefore threatened with loss of their
properties through foreclosure and execution sales thereof,
and
"Whereas, a large number of such foreclosure and
execution sales are now in progress throughout the State with
more to follow during the year with the result that many
owners of real estate and their families will be thrown out
of their homes and reduced to the condition and status of
temporary tenancy and in addition it appears to be the fixed
policy of large mortgage holders to refuse to rent a
foreclosed farm to the former owner thereof, thereby unjustly
discriminating against the debtor who has been so unfortunate
to lose his home through foreclosure or execution sale
proceedings, and
"Whereas, it is believed and the legislature of South
Dakota, does hereby declare its belief that such conditions
have created an emergency, both economic and social, to
justify and validate legislation for the temporary relief
therefrom, for the extension of the normal time of redemption
from mortgage foreclosure and execution sales and for
postponing the issuance of Sheriff's Deeds in such cases
under certain conditions fair alike to mortgagor and
mortgagee, debtor and creditor, and
"Whereas, the State of South Dakota possesses the right
under its police power to declare a state of emergency to
exist and to exercise its inherent power to safeguard the
public welfare of its citizens. * * *
"Section 14. Whereas, this Act is necessary for the
immediate support of the State Government and its existing
institutions, an emergency is declared to exist and this Act
shall be in full force and effect from and after its passage
and approval."
The
trial court held that the declaration purporting to put the
act into immediate effect was without validity, and that the
act did not go into effect until July 1, 1937, as provided in
section 5111, Rev.Code 1919. The petitioner has appealed.
Section
1 and section 22 of article 3 of the State Constitution
govern the power of the Legislature to declare acts
immediately effective upon their passage and approval. These
two sections of the Constitution have been before and
considered by this court on numerous occasions. State ex
rel. Richards v. Whisman, 36 S.D. 260, 154 N.W. 707
L.R.A.1917B, 1; Hodges v. Snyder, 43 S.D. 166, 178
N.W. 575, 577; State ex rel. Flanagan v. Taylor, 43
S.D. 264, 178 N.W. 985; Warwick v. Bliss, 45 S.D.
388, 187 N.W. 715; State ex rel. Kleppe v.
Steensland, 46 S.D. 342, 192 N.W. 749; Johnson v.
Jones, 48 S.D. 260, 204 N.W. 15; State ex rel.
Driscoll v. Smith, 49 S.D. 106, 206 N.W. 233; State
ex rel. Wegner v. Pyle, 55 S.D. 269, 226 N.W. 280;
City of Colome v. Von Seggern Bros. & Ludden, 56
S.D. 390, 228 N.W. 800; Engelcke v. Farmers' State
Bank, 61 S.D. 92, 246 N.W. 288; City of Pierre v.
Siewert, 63 S.D. 485, 261 N.W. 42. The general
principles governing the applications of these constitutional
provisions was stated in the case of Hodges v. Snyder, supra,
as follows: "The exception found in section 1 of article
3, names two classes of laws that are not subject to the
referendum: First, such laws as are declared by the act
itself to be necessary for the immediate preservation of the
public peace, health, or safety of the state; and, second,
such laws as are necessary for the support of the government
and its existing public institutions. A law may be necessary
for the preservation of the public peace, health, or safety,
and still be subject to the referendum, unless the
Legislature declares it necessary for the immediate
preservation of the public peace, health, or safety; and it
will go into effect in accordance with the provisions of
section 5111, Rev.Code 1919, but in the meantime it will not
be subject to the referendum. If the Legislature declares
such a law necessary for the immediate preservation of the
public peace, health, or safety, and attaches to such law an
emergency clause as provided for in section 22, art. 3 of the
Constitution, then such law will go into effect immediately
or at such time thereafter as the Legislature may fix, and in
the meantime it will not be subject to the referendum. But a
law that is necessary for the support of the state government
or its existing public institutions is not subject to the
referendum in any event, and will go into effect in
accordance with the provisions of section 5111, Rev.Code
1919, unless the Legislature declares the existence of an
emergency, under section 22, art. 3, Const., in which case
such law will go into effect immediately or at such time as
the...
