In re State Census

• Decision Date: 18 February 1895
• Citation: 62 N.W. 129,6 S.D. 540
• Parties: In re STATE CENSUS.
• Court: South Dakota Supreme Court

62 N.W. 129

6 S.D. 540

In re STATE CENSUS.

Supreme Court of South Dakota

February 18, 1895

To His Excellency, Charles H. Sheldon, Governor of the State of South Dakota:

Sir: We have the honor to acknowledge the receipt of your communication of February 15, 1895, which reads as follows:

"Executive Chamber, February 15, 1895.

To the Honorable Judges of the Supreme Court:

Gentlemen: The house of representatives of the legislature of this state now in session has this day presented to me the following preamble and resolution:

'Whereas, section 5 of article 3 of the constitution requires the legislature to provide by law for the enumeration of the inhabitants of the state in the year 1895 and whereas, many members of this body believe that such provision is not imperatively necessary: Therefore, be it resolved that the governor of this state is hereby requested to procure an opinion from the supreme court as to the imperativeness of said section, and deliver the same to this body at the earliest day possible.'

--In obedience to which I have the honor to respectfully request your opinion touching the question therein presented that it may be communicated to the body from which the resolution came. Very respectfully,

"C H. Sheldon,

"Governor of South Dakota."

In answer thereto we most respectfully submit the following reply:

Section 13, art. 5, of the state constitution, requiring the judges of the supreme court to give their opinion to the executive, seems to be limited in its scope to the executive department; and on February 23, 1893, in a communication to your excellency, we declined to express any opinion upon the matter then pending before the legislature, and gave our reasons therefor at length. In re Construction of Constitution (S. D.) 54 N.W. 651. The question then presented was one that might involve property rights, and we deemed it improper to express an opinion in advance upon the effect of the legislation then pending. But the question now presented by the house of representatives seems to involve no property rights or rights of individuals, and, while we entertain some doubt as to our duty in the premises, we have concluded to briefly express our views upon the question presented. The section of the constitution referred to by the house of representatives in the resolution you transmit to us reads as follows: "The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter, and at its first regular session after each enumeration, and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according

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