Lovett v. Ferguson
| Decision Date | 26 May 1897 |
| Parties | LOVETT, Plaintiff and respondent, v. FERGUSON, Defendant and appellant. |
| Court | South Dakota Supreme Court |
FERGUSON, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Hughes County, SD Hon. Loring E. Gaffy, Judge Affirmed S. H. Cranmer Attorney for appellant. Albert Gunderson Attorney for respondent. Horner & Stewart Attorneys for amici curiae Opinion filed May 26, 1897
This was an action for the recovery of the purchase price of intoxicating liquors sold by plaintiff to the defendant since March 3, 1897. The answer sets up, in effect, that the contract was illegal and void, being made in violation of Article 24 of the constitution and the laws enacted to carry the same into effect. A demurrer was interposed to the answer upon the ground that the same did not state facts sufficient to constitute a defense to the action. This demurrer was sustained by the circuit court, and the defendant appeals.
The demurrer was evidently sustained by the court upon the theory that the proceedings taken to amend the constitution by the two houses of the legislature at its session in 1895, and the vote of the people had thereon at the general election held in November, 1896, were valid, and had the effect of amending that instrument, by striking therefrom the said article. The joint resolution adopted by the two houses of the legislature reads as follows:
“House Joint Resolution proposing an amendment to the constitution—A Joint Resolution to amend the constitution of the state of South Dakota by repealing Article 24 thereof, relating to prohibition, and submitting the same to a vote of the people.
“Be it resolved by the house of representatives of the state of South Dakota, the senate concurring:
Section 1. (Question Submitted. ) That at the general election to be held in the state of South Dakota on the first Tuesday after the first Monday in November, 1896, there shall be submitted to a vote of the qualified electors of the state of South Dakota the following question: ‘Shall article twenty-four of the constitution be repealed?’”
The important question therefore presented for our decision in this case is: Were the proceedings taken by the two houses of the legislature and the people to amend the constitution of this state, by striking therefrom Article 24, entitled “Prohibition,” valid, and was the constitution amended by striking therefrom that article? Two methods are provided for amending the constitution of this state, only one of which, being Sec. 1, Art. 23, need be noticed. That section reads as follows:
It is contended by respondent that the proceedings taken by the two houses of the legislature at its session in 1895, followed by the vote of the electors, approving and ratifying the same, at the election held in November, 1896, resulted in amending the constitution, by striking therefrom this article. The validity of these proceedings, however, is challenged by the appellant upon five grounds:
(1) That no definite amendment of the constitution was proposed;
(2) that no proposed amendment was agreed to by the two houses of the legislature;
(3) that the proposition upon which the members of the two houses voted was not the same proposition upon which the people voted;
(4) that the question which was submitted, if added to the constitution, would in no way change or amend the same;
(5) that the proposed amendment was not printed upon each ticket on the ballot as provided by Sec. 1, Chap. 86, Laws 1895.
The two essential elements of an amendment to the constitution under the provisions of sec. 1, above quoted, are (1) that a majority of the two houses shall have agreed to the proposed amendment, and (2) that the people shall have approved and ratified the same by their votes. The other provisions prescribe the manner generally in which the essential acts shall be performed. It is well settled that provisions of a constitution, while mandatory, are, like statutes, to receive a fair and reasonable construction, with the view of ascertaining the intention of the two houses of the legislature and the people in their proceedings taken to affect an amendment; and it is the duty of courts, when that intent is ascertainable from the proceedings taken, to carry it into effect. The action of the two houses and the will of the people, as expressed by their vote, should not be set aside or disregarded upon purely technical grounds, when no material requirement of the constitution has been omitted, and where the proceedings taken clearly manifest the intention of those bodies and the people to amend the fundamental law. It will be observed from the reading of Sec. 1, above quoted, that no particular form in which the two houses shall proceed in proposing, agreeing to, or submitting an amendment to the people is prescribed. The method of proceeding is left largely to the discretion of the two houses, subject to the condition that all requirements of the constitution shall be substantially complied with. These requirements are:
(1) That the amendment be proposed in one of the two houses,but in what manner is not prescribed.
(2) It must be agreed to by a majority of the members elected to each of the two houses.
(3) It must be entered upon the journals of the two houses with the yeas and nays taken thereon.
(4) It must be submitted to a vote of the people at the next general election.
(5) The amendment must be published substantially as prescribed.
(6) Each amendment must be so submitted that it can be voted upon separately.
It is contended by appellant that, independently of the title to the resolution there is nothing in the proceedings to show that an amendment was proposed or agreed to. It is further contended that as no title is required to a joint resolution, the title cannot be referred to, to explain or supply any defect in the resolution itself. It is true that the constitution of this state does not in terms require that a joint resolution shall have a title, but it presupposes that such a resolution will have a title. Sec. 19, Art. 3, provides: “The presiding office of each house shall … sign all bills and joint resolutions … after the titles have been publicly read, … and the fact of signing shall be entered upon the journal.” If, therefore, a title is not absolutely required, it is fully recognized by the constitution. In the early English decisions the courts held the title to be no part of the statute, and it was said the title could never be referred to as affording any indication of the interpretation to be given to the act. This rule was adopted upon the theory that the title was usually framed by the clerk of parliament after the bill had passed, without any vote being taken upon it; but, under the constitution of this and many of the other states, it is now necessarily a part of the act itself, and is a very important guide to its rightful construction. Eby’s Appeal, 70 Pa. St. 314; Halderman’s Appeal, 104 Pa. St. 259; Coosaw Min. Co. v. South Carolina, 12 SCt 689; Wilson v. Spaulding, 19 Fed. 304. See, also, 23 Am. & Eng. Enc. Law, 327, 328, and numerous cases cited. While it is true that the cases cited refer to statutes generally, we think they may with equal force be applied to a joint resolution adopting an amendment to the constitution, where the title is framed by a committee of the legislature, and adopted by the two’ houses upon full consideration. Such will be seen by the proceedings was the method followed in this case. When, therefore, the title to a joint resolution is adopted after due consideration, it may be referred to and considered by the court for the purpose of ascertaining the intention of the two houses in adopting the resolution, if there is any doubt as to what that intention was. The effect of a title to a bill is well illustrated in Wilson v. Spaulding, supra. In that case in the body of the act, the section to which the proposed amendment related was designated as Section 25, but in the title it was designated as 2504, and the court says:
We can see no reason why the same principle...
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