In re Construction of Constitution
| Citation | 54 N.W. 650,3 S.D. 548 |
| Parties | IN RE CONSTRUCTION OF CONSTITUTION |
| Decision Date | 23 February 1893 |
| Court | Supreme Court of South Dakota |
Original Proceedings
February 23, 1893.
His Excellency, C. H. Sheldon, Governor of South Dakota:
Sir:
We are in receipt of your communication of the 21st inst., inclosing a joint resolution of the senate and house of representatives, requesting that you submit for our opinion the meaning and intent of section 18 of article 3 of the constitution of this state. With great respect, both to yourself and the honorable bodies which passed the resolution, we have the honor to make the following reply:
The joint resolution is as follows: “Be it resolved by the senate, the house concurring: whereas, section 18, art. 3, of the constitution of the state of South Dakota, provides that no law shall be passed unless by assent of a majority of all the members elected to each house of the legislature, and the question upon the final passage shall be taken upon its last reading, and the yeas and nays shall be entered upon the journal; and whereas, the lieutenant governor, as the president of the senate, on the 4th day of February, 1893, held that, on concurrence in house amendments to senate bill, it required an affirmative vote of a majority of all the, senators elected, and that the vote must be taken by yeas and nays, and duly entered upon the journal; and whereas, the said question of parliamentary procedure is a question of the most far-reaching consequences,—therefore, resolved, that his excellency, the governor, be requested to obtain the opinion of the supreme court of the state upon said constitutional provision.”
The framers of the constitution divided the powers of the state government into three distinct departments, the legislative, executive, and judicial. The powers and duties of each are specifically prescribed. Sections 2, 3, art. 5, specify the jurisdiction to be exercised by this court. They declare that, with certain designated exceptions, this jurisdiction shall be purely appellate and supervisory. A few writs and proceedings are named in which this court is clothed with original jurisdiction. The resolution before us, and the request from your excellency, purport to have been framed under the prescribed authority conferred by section 13, art. 5 of the constitution, which reads as follows: “The governor shall have authority to require the opinion of the judges of the supreme court upon important questions of law involved in the exercise of his executive powers, and upon solemn occasions.” This section of the constitution is an enlargement of the usual jurisdiction and duties of the judges of this court. It adds a unique and important proceeding. It is unique because devoid of nearly all the usual indicia of judicial proceedings, and is important because of its consequences. There are, we believe, but few states of the entire Union which have ventured to adopt and retain constitutional provisions in any way analogous to these. At one time there existed in Missouri a somewhat similar provision, but the framers of the Missouri constitution of 1875, profiting, we suppose, by experience, excluded it from that constitution, and no effort has been made looking to its restoration. Colorado, however, has gone farther than any of the other states referred to. The express words of its constitution are “that the supreme court shall give its opinion upon important questions, upon solemn occasions, when required by the governor, senate, or the house of representatives.” By this provision that court appears to be the legal adviser of the governor, senate, and house of representatives,—occupying much the same relation in this regard as does an attorney general. Yet under this extended provision the supreme court of that state has held that the section applies only to cases where questions of public right are involved and that even then questions of this character should rarely be thus presented or considered. See Wheeler v. Irrigation Co., 9 Colo. 248, 11 Pac. 103; In re Constitutionality of Senate Bill No. 65, (relating to district attorneys,) 12 Colo. 466, 21 Pac. 478.
The court, in the last mentioned case, says:
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In re Constr. of Constitution
...3 S.D. 54854 N.W. 650In re CONSTRUCTION OF CONSTITUTION.Supreme Court of South Dakota.Feb. 23, 1893. *651The opinion of the judges of the supreme court on a question involving the construction of Const. art. 3, § 18, was requested by the governor, to which request the following response was ......