State ex rel. Richards v. Whisman
| Decision Date | 04 November 1915 |
| Docket Number | 3883 |
| Citation | 36 S.D. 260,154 N.W. 707 |
| Parties | STATE OF SOUTH DAKOTA ex rel. R. O. RICHARDS, Plaintiffs and appellants, v. M. D. WHISMAN, County Auditor of Beadle County, Defendant and respondent. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Beadle County, SD
#3883--Affirmed
Gardner & Churchill, Null & Royhl
Attorneys for Appellants.
Clarence C. Caldwell, Attorney General
Byron S. Payne, Assistant Attorney General
A. A. Chamberlain, State's Attorney, for Respondents.
W. A. Lynch, as amicus curiae.
Opinion filed November 4, 1915; Rehearing denied
This suit was instituted by plaintiffs, R. O. Richards and others, to restrain defendant, as county auditor of Beadle county, from complying with the requirements of chapter 258, Laws of 1915, upon the ground that said legislative enactment is unconstitutional and void: (1) In that it contains an emergency clause making it take immediate effect, thereby, as it is alleged "depriving the people of the expressly reserved right of having the law submitted to the voters"; (2) in that the Legislature was without the power to repeal chapter 201, Laws of 1911, commonly known as the "Richards Primary Law," the same, as it is alleged, "being a law enacted by a direct vote of the people under the initiative and referendum." Findings and judgment were in favor of defendant, and plaintiffs appeal.
At the 1915 session of the Legislature there was passed and enacted, with an emergency clause, chapter 258; the same being a general primary election law. In many material particulars, although not in all, this chapter 258 inherently conflicts with certain provisions of chapter 201, Laws of 1911. By the express provision of chapter 258, chapter 201 and all acts and parts of acts in conflict with chapter 258 were repealed. We will first consider the question of the emergency clause contained in chapter 258, as we view it in connection with the record in this case. Every law which the Legislature has power to enact, where there is no emergency clause embodied therein, goes into effect on the next succeeding 1st day of July, unless vetoed by the Governor, or unless a referendum petition referring the same to a vote is filed as required by law. If, as contended by appellants, the emergency clause to chapter 258 was void and of no effect (a question not necessary to be decided in this case under the record herein), then the said chapter 258 is, in legal effect, the same as if no emergency was therein contained. Chapter 258 was not vetoed by the Governor, and it stands as one of the conceded facts in this case that no referendum petition of any kind was ever filed requiring chapter 258 to be submitted to a vote of the people for approval. There is no provision in the Constitution that will permit or authorize the exercise of the referendum vote in the absence of the filing of a proper petition therefor. Not having filed a proper referendum petition requiring a vote on said chapter 258, the plaintiffs are not in a position to complain of the invalidity of chapter 258 on account of the emergency clause therein contained. The mere fact that this suit was commenced before July 1st will not change the situation. The only thing that will prevent such an enactment, if otherwise valid, from going into effect on the 1st day of July, is the exercise of the veto or the referendum.
The mere commencement of a suit to determine the constitutionality of an enactment, either with or without the emergency clause, will not prevent such an enactment from going into effect at the legally specified time; otherwise many salutary laws might be in this manner indefinitely postponed from going into effect at the times specified by the Constitution, and thereby placing in the hands of litigants and courts the power of regulating or varying the time fixed by the Constitution in which legislative acts shall go into effect. The attachment of an unwarranted and void emergency clause to an enactment could in no manner prevent the filing of a proper referendum petition. In order to have kept alive the question of the validity of the emergency clause contained in chapter 258, as a question for determination in this court, or the court below, a proper referendum petition should have been filed prior to the 1st day of July last. Therefore, if the Legislature had the power to repeal chapter 201, and enact in place thereof chapter 258, then on and after the 1st day of July, 1915, chapter 258 was a valid and existing law of this state, whether the same became such with or without an emergency clause. In Riley v. Carico, 27 Okla. 33, 110 Pac. 738, and in McIntosh v. State, 56 Tex.Cr.R. 134, 120 S.W. 455, it is held that the fact that the action of the Legislature in declaring an emergency to exist was void did not invalidate the act or relieve the necessity of filing a referendum petition, but resulted in the act taking effect 90 days after the adjournment of the Legislature. It is therefore clear that the first ground of unconstitutionality of chapter 258 urged by appellants is now merely a moot question. 3 Corpus Juris, pp. 358-360.
As we view the record in this case, there is but one question before this court for determination, and that is: Had the Legislature power to repeal chapter 201 of 1911, and enact in place thereof the general primary law embodied in chapter 258, Laws of 1915? No rule of law is better settled throughout the United States than that a state Legislature has absolute power to enact, that is, pass, amend, or repeal, any law whatsoever it pleases, unless it is prohibited from so doing by either the state or federal Constitutions; that the courts can only restrain the execution of a statute when it conflicts with either one or the other of said Constitutions. In determining the constitutionality of a statute, as is well said in one of the cited cases, we peruse the statute, then examine the Constitution, and ascertain if this instrument says, "Thou shalt not," and, if we find no inhibition, then the statute is the law. The inhibition of a Constitution may be either express or implied; that is, the Constitution may expressly prohibit any specified act of the Legislature, or the Constitution by its inherent terms may of necessity prohibit certain acts of a Legislature by reason of the inherent conflict that would arise between the terms of the Constitution and the power claimed in favor of the Legislature. Cooley's Const. Lim. pp. 126, 236, 245, 252, 255; 36 Cyc. 944; Chamberlain v. Wood, 15 S.D. 216, 88 N.W. 109, 56 L.R.A. 187, 91 Am.St.Rep. 674; Bon Homme County v. Berndt, 15 S.D. 494, 90 N.W. 147; Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Commonwealth v. Reeder, 171 Pa. 505, 33 Atl. 67, 33 L.R.A. 141.
With these rules in view we will examine the question presented. Section I, art. 3, State Constitution, as it originally exists, read as follows:
"The legislative power shall be vested in a Legislature which shall consist of a Senate and House of Representatives."
That was a grant of general plenary power conferred upon the Legislature by the people to enact, amend, or repeal any statute law, excepting only in those instances where prohibited by such Constitution itself, or by the federal Constitution. In 1898 said section 1, art. 3, was amended to read as follows:
As we view this constitutional amendment, there is nothing therein contained which, either expressly or impliedly, in any degree, conflicts with, inhibits, limits, abridges, or prohibits any part of the legislative power originally granted to it to enact, amend, or repeal any law which it might have enacted before the adoption of this amendment. The fact that the people themselves may propose or enact laws in connection with the Legislature in no manner conflicts with or prohibits the Legislature from itself also enacting the same law that might be desired by the people. If the Legislature of its own volition should enact the same law desired by the people, the initiative would then become unnecessary and useless as to such law. The evident purpose of this constitutional amendment was not to curtail or limit the powers of the Legislature to enact laws, but the purpose was to compel enactment by the Legislature of measures desired by the people, and, if the Legislature neglected to act as so desired by the people, that then the people by means of the initiative might enact such measures into laws themselves. And, recognizing the right of the Legislature to enact laws as it pleased, within all its constitutional powers, the referendum was designed as a check upon all ...
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