State ex rel. Lavin v. Bacon
| Decision Date | 03 April 1901 |
| Citation | 85 N.W. 605,14 S.D. 394 |
| Parties | STATE ex rel. LAVIN et al. v. BACON et al. |
| Court | South Dakota Supreme Court |
Original action by the state of South Dakota, on relation of J. D Lavin and W. E. Tipton, against F. H. Bacon and H. P. Smith. Judgment for plaintiff and relators.
John L Pyle, Atty. Gen., and Alva E. Taylor, Asst. Atty. Gen., for the State. Horner & Stewart and N. J. Cramer (Kirby & Winsor of counsel), for defendants.
This is an original action in this court, in the nature of quo warranto, to determine the title of the defendants to the office of members of the state board of charities and corrections. The defendants filed an answer to the petition, but, as counsel have agreed upon the facts, it will not be necessary to refer specially to the petition and answer. The facts as contained in the stipulation may be briefly summarized as follows: That during the legislative session of 1893 the governor appointed William J. Sibbison and L. B. Laughlin as members of the board of charities and corrections, for the term of six years, commencing on the 6th day of March, 1893, to succeed other members whose terms expired on that day; that the appointment so made was confirmed by the senate; that in January, 1899, the governor appointed B. H. Lien and F. M. Brown as members of the said board for the term of six years, to succeed said Sibbison and Laughlin, and transmitted said appointments to the senate for confirmation, but that said appointments were not confirmed or acted upon during said session of the legislature, or at any other time; that thereafter, on the 4th day of March, 1899, and after the adjournment of said legislature, the governor appointed said Lien and Brown as members of said board, to succeed said Sibbison and Laughlin, without the consent and confirmation of the senate; that said Lien and Brown entered upon the discharge of their duties as such members of the board, and continued to perform the same until the 15th day of December, 1900, when they resigned as such members, and on the 27th day of December, 1900, the governor appointed the defendants herein, F. H. Bacon and H. P. Smith, to fill the vacancies in said board caused by the resignation of said Lien and Brown, and it is under this appointment that the defendants claim the right to hold the office for the unexpired terms caused by the expiration of the terms of Sibbison and Laughlin and the resignation of Lien and Brown. The relators, J. D. Lavin and W. E. Tipton, claim the right to the office by virtue of appointments made by the present governor under and by virtue of an act of the legislature of this state entitled "An act to amend section 3, chapter 5, of the Session Laws of 1890, entitled, 'An act to provide for the appointment of a board of charities and corrections and to define their duties and powers,"' approved March 2, 1901. This act reads as follows:
The defendants contend: First, that the said act of the legislature is not in force, and will not be in force until 90 days after the adjournment of the legislature, by reason of the amendment of section 1 of article 3 of the state constitution, submitted to the people by the legislature of 1897, and adopted by them at the general election in 1898; second, that the members of the board of charities and corrections are constitutional officers, and that the terms of those holding office at the time the said law was passed and approved by the governor were not, and could not be, affected by that act; third, that in the passage of the law the provisions of the constitution were not complied with, and hence the law is void. On the part of the relators it is contended that, as the act referred to was passed with an emergency clause, it took effect and became in force immediately upon its passage and approval by the governor under the provisions of section 22 of article 3 of the state constitution, and hence does not come within the provisions of section 1, art. 3, as amended; second, that neither the full term of a member of said board, nor the term of one appointed to fill a vacancy, is fixed by the constitution, and hence that the terms of such officers are within the control of the legislature, and it was competent for the legislature to provide for the termination of the terms of the defendants Bacon and Smith, as has been done by the law in question; and, third, that it is not affirmatively shown by the journals that the requirements of the constitution were not complied with.
Section 1 of article 3 of the state constitution, as it was originally adopted, was as follows: "The legislative power shall be vested in a legislature which shall consist of a senate and house of representatives." Section 22 of the same article reads 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 to each house, otherwise direct." Section 1 of that article as amended in 1898 reads as follows: No change has been made in section 22, and it remains as originally adopted. It will be noticed that section 1, as amended, provides that the people "expressly reserve to themselves the right *** to require that any laws *** shall be submitted to a vote of the electors of the state before going into effect," excepting, etc. The right to require any law that has taken effect or is in force to be submitted is not reserved. It is to be observed further that by section 22, in case of an emergency, in which case the emergency shall be expressed in the preamble or body of the act, the act shall take effect as directed by a vote of two-thirds of all the members elected to each house.
It seems to be the well-established rule in considering any provision of a constitution that the whole is to be examined with the view of arriving at the true intention of each part and that effect is to be given, if possible, to the whole instrument, and to every section and clause. If different provisions seem to conflict, the courts must harmonize them, if practicable, and must lean in favor of that construction which will render every word operative, rather than one which makes some words idle and nugatory. Cooley, Const. Lim. 70, 71. Adopting the rule suggested by Mr. Cooley, the section as amended and section 22 of the same article must be construed together. As thus construed and read together, section 22 must be regarded as furnishing an additional exception to section 1 as amended. This court held in State v. Finnerud, 7 S. D. 237, 64 N.W. 121, that in construing constitutional provisions it was proper to read the provisions of one section in connection with the provisions of another section, as constituting an exception thereto, and in the opinion this court says: ...
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