State ex rel. Schrader v. Polley

• Citation: 127 N.W. 848,26 S.D. 5
• Parties: STATE OF SOUTH DAKOTA ex rel. JOHN F. SCHRADER, Relator, v. SAMUEL C. POLLEY, Secretary of State, Respondent.
• Decision Date: 18 June 1910
• Court: South Dakota Supreme Court

26 S.D. 5, 127 N.W. 848 (1910)

STATE OF SOUTH DAKOTA ex rel. JOHN F. SCHRADER, Relator v SAMUEL C. POLLEY, Secretary of State

Respondent

South Dakota Supreme Court

Original Proceedings

Writ denied

Schrader & Lewis

Attorneys for relator.

Gaffy & Stevens

Cloyd D. Sterling, Asst. Atty. Gen.

Attorneys for respondent.

Opinion filed June 18, 1910

McCOY, J.

This is an original proceeding in mandamus instituted by the state of South Dakota, on relation of John F. Schrader, a candidate for nomination for Congress before the primary election held June 7, 1910, against Samuel C. Polley, as Secretary of the State of South Dakota. The relator in his petition, alleges his qualifications as to citizenship, etc.; that he is a Republican and has procured sufficient names to a nominating petition to entitle such petition to be filed as a candidate for the Second congressional district, under chapter 223, Laws of 1909; and that the defendant, upon the presentation of such petition, refused to file the same, and an alternative writ was issued, requiring the defendant to show cause before the court why such petition should not be filed. The defendant appeared and made answer and alleged that after the passage and approval of said chapter 223, Laws 1909, and within the time prescribed by law, a sufficient referendum petition, under section 1, art. 3, Const. S. D., and laws enacted pursuant thereto, was filed in the office of the Secretary of State referring the said chapter 223 to a vote of the people, and in the meantime, until such vote is taken, suspending the operation and effect of said chapter 223, and that by reason of the filing of such referendum petition the said chapter 223 is not now a valid and existing law. To this answer the relator demurred on the ground that it did not contain a statement of facts sufficient to constitute a defense to his petition.

Chapter 223, Laws 1909, provides for and divides the state into two congressional districts. This enactment was approved March 8, 1909. Section 1, art. 3, of the state Constitution, reads as follows:

"The legislative power shall be vested in a Legislature which shall consist of a Senate and a House of Representatives. Except that the people expressly reserve to themselves the right to propose measures, which measures the Legislature shall enact and submit to a vote of the electors of the state, and also the right to require that any of the laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect (except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions). Provided that not more than five per centum of the qualified electors of the state shall be required to invoke either the initiative or the referendum." Section 4, art. 1, of the United States Constitution, reads as follows: The times, place, and manner of holding elections for senators and representatives shall be prescribed in each state by the Legislature thereof, but the Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators."

The contention of the defendant is that chapter 223, Laws 1909, is in all things the same as any other law; that it is subject to the same constitutional limitations, as to the manner of passage, and approval, veto, and referendum, as any other law that may be passed by the Legislature. While, on the other hand, the relator contends that under section 4, art. 1, Const. U. S., the Legislature only is authorized and empowered to act in the creation of congressional districts; that the Governor has no veto power, nor the people any referendum power, under the state Constitution, over such action of the members of the Legislature, and, when a majority of the members of the Legislature consent and vote to divide the state into congressional districts, the Governor has no veto power over such action; and that such action is not subject to referendum vote of the people, under the power reserved in the people, over the passage of laws, by section 1, art. 3, Const. S. D., on the theory that the Governor, who exercises the veto power, and the people, who exercise the referendum power, are not a part of the Legislature, and because the power granted by the United States Constitution says that the time, place, and manner of holding elections for Representatives in Congress shall be prescribed in each state by the Legislature thereof. It is the contention of the relator that, when the federal Constitution gave power to the "Legislature," this power so given could not be delegated to the people.

In these contentions we are of the opinion that the defendant is in the right. In the first place, we are of the opinion that no power to divide the state into congressional districts was ever delegated to the Legislature of the state by section 4, art. 1, of the federal Constitution. That the original source of all sovereign power is in the state. The powers the states have given to the federal government are named in the federal Constitution, and all powers not therein named, either expressly or by implication, are reserved to the people of the state in their sovereign capacity, and such powers reserved by the people can only be exercised by the government upon further grant from the people of the state. United States v. Williams, 194 U.S. 279, 295, 24 S.Ct. 719, 48 L.Ed. 979. It is a familiar rule of construction of the Constitution of the Union that the sovereign powers vested in the state governments, by their respective Constitutions, remain unaltered and unimpaired, except so far as they were granted to the government of the United States. That the intention of the framers of the Constitution in this respect might not be misunderstood, this rule of interpretation is expressly declared in the tenth amendment to the federal Constitution, namely, "the powers not delegated to the United States are reserved to the states respectively or to the people." The government of the United States, therefore, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. Collector v. Day, 78 U.S. (11 Wall.) 113, 124, 20 L.Ed. 122. Therefore, when the federal Constitution said: "The times, place and manner of holding elections for Representatives shall be prescribed in each state by the Legislature thereof, but the Congress may at any time by law make or alter such regulation"--power was not delegated to the state Legislature or to the state itself to regulate such elections, because the state already in its sovereign capacity possessed that power, and the federal Constitution simply left that power with the state, where it already reposed; but, for a purpose, power was delegated to Congress to at any time by law make or alter the time, place, and manner of holding such elections prescribed by the state.

"In determining the proper construction to be placed on this clause of the federal Constitution, it is important to inquire, first, What was the object of the framers of that instrument in grafting into it such a provision? Why was it deemed necessary and proper? It is hardly possible that there can be two opinions in regard to this. The convention had provided for a federal Senate and House of Representatives, in which the legislative power of the proposed government was to reside. The effective organization and continuance of these bodies was necessary to the very existence of the government under the plan proposed. To have a Senate and House of Representatives it was necessary that members thereof must be elected at regular and stated periods; and it was argued with great force that a majority of the state, becoming refractory, might, by the simple act of refusing to provide the times, places, and manner of holding elections for Senators and...