Johnson v. Jones

• Decision Date: 14 May 1925
• Docket Number: 5908
• Citation: 48 S.D. 260,204 N.W. 15
• Parties: JULIUS H. JOHNSON, Plaintiff, v. EDWARD A. JONES, State Auditor, Defendant.
• Court: South Dakota Supreme Court

48 S.D. 260

204 N.W. 15

JULIUS H. JOHNSON, Plaintiff,

v.

EDWARD A. JONES, State Auditor, Defendant. South Dakota Supreme Court Original Proceedings in Mandamus #5908--Writ dismissed C. E. DeLand, Pierre, SD Attorneys for Plaintiff. Buell F. Jones, Attorney General E. D. Roberts, Assistant Attorney General, Pierre, SD Attorneys for Defendant. Opinion filed May 14, 1925

POLLEY, P. J.

At the recent session of the Legislature a law (chapter 266, L. 1925) reorganizing and regulating the rural credit board was enacted. Section 21 of said. law reads as follows:

"Whereas, this act is necessary for the immediate support of the state government and its existing institutions, an emergency is hereby declared to exist and this act shall he in full force and effect from and after its passage and approval."

Said law was approved by the Governor on the 14th day of March. Section 3 prescribes the powers and duties of the rural credit board. Paragraph (1) of said section reads as follows: "To employ and fix the compensation of such legal counsel as shall be necessary to prosecute, enforce and protect the rights of the state."

Pursuant to the provisions of said law, and assuming the same to be in force, the rural credit board on the 16th day of March appointed the plaintiff herein, Julius H. Johnson, assistant counsel to said board, and fixed his compensation at $3,600 per annum. Plaintiff entered upon the duties of such appointment on the 19th day of March, and on the 2d day of April he presented to defendant, who is the state auditor, a voucher properly receipted and approved by the Governor as chairman of the rural credit board for the amount due for his services from the time of his appointment to the 1st day of April, and demanded from the Auditor a warrant on the state treasurer fer such amount. Defendant refused to issue said warrant, because said voucher was not approved by the Attorney General. Whereupon plaintiff applied for, and there was issued to him, an alternative writ of mandamus directed to defendant, and requiring him to issue said warrant or to show cause why the same had not been done.

The Attorney General, appearing for defendant in response to the said writ, moved to quash the same upon the ground, among others:

"That it appears upon the face of said petition and upon the face of said writ that the purported employment of said Julius H. Johnson was made under a statutory enactment not in effect at the date of said purported employment and not in effect at this date."

This motion brings in question the validity, or rather the effectiveness, of the emergency clause attached to said chapter 266.

Prior to the amendment of 1898, section I, art. 3, of the Constitution, read as follows: "The legislative power shall consist of a senate and house of representatives."

And section 22 of said article read as follows:

"No act shall take effect until ninety days after the adjournment of the session at which it passed, unless in case of emergency (to be expressed in the preamble or body of the act) the Legislature shall, by a vote of two-thirds of all the members elected of each house, otherwise direct."

At the general election held in 1898, section I of article 3 was so amended as to read as follows:

"The Legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives, except that the people expressly reserve to themselves the right ... to require that any laws which the Legislature may have enacted shall be submitted to a vote. of the electors of the state before going into effect. ...

The effect of this amendment was to establish the general policy of direct legislation in this state to the extent, at least, of permitting the electors to pass judgment on all laws enacted by the Legislature before the same became effective. But, realizing that emergencies might arise where the public necessity might require that a law become operative before a vote of the people could be taken, and realizing that the functioning of the government might cease, if appropriation acts for the support of the state government could be subjected to the referendum, the following exception was incorporated into the amendment:

"Except such laws as may be necessary for the immediate preservation of the public peace, health or safety, and the support of the state government and its existing public institutions."

In the case of State ex rel Lavin v. Bacon, 85 N.W. 225, this court, in construing the above amendment, held that section 1 of article 3 must be read in connection with section 22 of the same article, and that, inasmuch as section 22 was not amended, it was controlling of section 1, and that, where the emergency clause provided for in section 22 was added to or incorporated into an act, it went into effect immediately, notwithstanding the amendment to section 1. In other words, the court read into the amendment the following clause: "And except also such laws as are passed with an emergency clause as provided by section 22." The effect of this was to make the action of the Legislature conclusive on the courts. It also placed it within the power of the Legislature to nullify the referendum clause in the Constitution in any case where the Legislature, by a two-thirds vote, attached an emergency clause to any law enacted. But in Richards v. Whisman, 154 N.W. 707, this holding was overruled, and it was declared that the question of emergency is one for the courts. In this latter case, speaking of the exception found in section 1 of...