State ex rel. Cranmer v. Thorson
| Decision Date | 29 July 1896 |
| Citation | 68 N.W. 202,9 S.D. 149 |
| Parties | STATE ex rel. CRANMER v. THORSON, Secretary of State. |
| Court | South Dakota Supreme Court |
Suit on the relation of S. H. Cranmer against Thomas Thorson, as secretary of state of South Dakota, for an injunction.
S. H Cranmer, in pro. per. John E. Carland, for defendant.
This action was commenced in this court for the purpose of enjoining defendant, as secretary of state, from certifying to the auditors of the state the question contained in the following joint resolution passed at the last session of the legislature, an engrossed copy of which is now on file in his office:
After filing certain objections to the issuance of a restraining order, pending litigation, defendant answered, evidence was introduced on behalf of the relator, and the cause was heard and submitted, a decision upon defendant's objections being reserved for consideration with the case upon its merits. The relator is an elector and taxpayer. Defendant intends to, and will, unless restrained by injunction or other legal process, certify the question as a proposed constitutional amendment. The relator contends that the passage of the resolution, and the submission of the question embraced therein, are steps in an attempt to amend the state constitution; that the methods prescribed for its amendment have not been complied with; therefore defendant has no authority to certify the same. His argument rests upon the theory that the secretary is only authorized to certify proposed amendments. He claims the legislature did not itself agree to any amendment; that it merely resolved to ask the qualified electors of the state a certain question, and that the constitution will not be changed whatever reply may be returned. The fallacy of this argument results from a misconception of defendant's official duty. Such duty is thus defined: Laws 1891, c. 57 § 12. Whether the joint resolution be regarded as embodying a proposed amendment or some other question to be submitted to the people of the state, the statute requires that it be certified in the same manner. The court is aware of no law prohibiting the legislature from submitting any question its wisdom may suggest. It may submit a question not intended to change the organic law. Whenever it directs any question to be submitted, it is the duty of the secretary to certify it and it is wholly immaterial whether that officer considers that it involves an amendment of the constitution or not. Manifestly, then, it is his duty to certify the question in this joint resolution, even if an affirmative reply by the electors will not affect any part of the constitution, and this court should not prevent him from performing his official duty. But there are other, perhaps more convincing reasons why the injunction should not issue in this action. Because this court has power to issue writs of mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same, in such cases and under such regulations as may be provided by law (Const. art. 5, § 3), it does not follow that it has jurisdiction to issue an injunction upon any and all occasions. It is clothed with all the powers of a court of equity as understood and defined when the constitution was adopted, but its jurisdiction is limited to such matters as were then of recognized equitable cognizance. Although in most instances its decrees are final, and not reviewable, it is subject to the law to which the conscience of its judges must yield ready obedience, however ample may be their physical ability or opportunities to successfully disregard it. Then, assuming the resolution involves a proposed amendment, it becomes the duty of the court to determine in the first instance, and on its own motion, because jurisdiction cannot be conferred even by consent, whether it has power to hear and determine the defendant's right to perform the proposed official action. It is a familiar principle that substantial and positive injury must always be made to appear to the satisfaction of a court before it will grant an injunction, and acts which, however irregular and unauthorized, can have no injurious results, constitute no ground for relief. 1 High, Inj. § 9. The party seeking an injunction must show, not only a clear legal right, but a well-grounded apprehension of immediate injury. An injunction will not be granted where the injury is doubtful, or the violation of complainant's rights is merely speculative. Injury material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable result of the action to be restrained. It is not sufficient to allege simply that the party will suffer irreparable injury, but he must set out the facts so that the court may determine the necessity for its intervention. 1 Beach, Mod. Eq. Jur. §§ 641, 642. The complainant who seeks an injunction must be able to specify some particular act, the performance of which will damnify him, and it is such act alone that he can restrain. This court has no power to examine an act of the legislature generally and declare it unconstitutional. The limit of our authority in this respect is to disregard, as in violation of the constitution, any act or part of an act which stands in the way of the legal rights of the suitor before us; but a suitor who calls upon a court of chancery to arrest the performance of a duty imposed by the legislature upon a public officer must show conclusively not only that the act about to be performed is unconstitutional, but also that it will inflict a direct injury upon him. Gibbs v. Green, 54 Miss. 592. It has not been shown, nor can it be imagined, in what manner the relator will be injured by the contemplated action of defendant. If the legislature has proceeded properly, and its proposed amendment shall be ratified by the people, the relator will have no legal cause of complaint, because, as a good citizen of the state, he will be bound to cheerfully accept the lawfully expressed will of a majority of its sovereign electors. If, on the other hand, the action of the legislature was such as to render any answer to the question inoperative, the constitution will not be modified, and no one will be affected. Any additional burden which might result to relator, as a taxpayer, by reason of submitting this question at a general election, is too trifling, fanciful, and speculative for serious consideration; and if, as claimed by him, the legislature has done nothing but submit a question to the people, it has done what it had a right to do, and any additional expense resulting from such action will be a legitimate expenditure of public money. Evidently an essential ground of equitable jurisdiction is wanting. Having failed to...
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