178 N.W. 575 | S.D. | 1920
Lead Opinion
The defendants in this case are acting as the officers of the purported Erwin independent consolidated district No. 1 of Kingsbury county and the superintendent of schools of that county. Plaintiffs are resident property owners and taxpayers of the territory embraced within said purported school district. Prior to the acts complained of by plaintiffs, the said territory
At the commencement of the action the court issued an order to show cause, on a certain day specified, why a temporary injunction should not be issued, and which order contained a meantime restraining order. To plaintiffs’ complaint, defendants interposed, a general demurrer. The demurrer was sustained, and an order to that effect made and entered by the court. The court also at the same time made and entered a separate order vacating the meantime restraining order and denying the pendente lite injunction. From this order plaintiffs took an immediate appeal, and also appealed from the order sustaining defendants’ demurrer. Both appeals are presented on the same brief.
“Each assignment, or group of assignments, if they present a like question, should be followed by the argument and authorities relied upon to sustain the alleged claim, of error.”
While the appellants’ assignments are stated in separate paragraphs and separately numbered, they all present like questions. True, the making of the order vacating the temporary restraining order is separately assigned as error, but the setting aside of that order followed as a matter of course when the demurrer to the complaint was sustained. The substance of both orders could more appropriately have been incorporated into one order, and then one assignment would have been sufficient, and but one appeal would have been necessary. The assignments should be treated as a group of assignments presenting like questions.
The case of Brick Co. v. Grank Forks, 27 N. D. 8, 145 N. W. 725, cited and relied upon by appellants is not analogous to this case. In that case there was no question as to the legal existence of the corporation involved, nor that the defendants were the legal officers thereof. The complaint in that case was that the corporation was trying to exercise its authority beyond its territorial jurisdiction. Neither is the case of Nelson v. School District, 181 Iowa, 424, 164 N. W. 874, cited and reliecd upon by respondents, analogous to this case. That case was determined upon the theory that a de facto public corporation existed; but in this case it is claimed that there was not even a de facto corporation.
“Whereas, this act is necessary for the immediate support of*174 the state government and its existing institutions, an emergency is hereby declared to exist and this act shall be in full force and effect from and after its passage and approval.” Section 2.
But it has already been declared to be the law of this state that the attachment of an emergency clause to a legislative act does not put it into imknediate effect unless it comes within the exception named in section i, art. 3, of the Constitution. State v. Whisman, 36 S. D. 260, 154 N. W. 707, L. R. A. 1917B, 1.
“The legislative power of the state shall be vested in the Legislature which shall consist of a senate and house of representatives, except that the people expressly reserve to themselves * * * the right to require that any law's 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, [and the] support of the state government and its existing public institutions. * * *”
By the adoption of this amehdmlent, the people reserved to themselves the right to pass upon the wisdom or expediency of any law enacted by the Legislature, unless such law falls within one of the tw’o classes excepted by the amendment, provided that any law will go into effect in accordance with the provisions of section 5111, Code 1919 unless prior- to that time a referendum-petition, as provided by section 5069, Revised Code, has been filed. The exception found in section 1 of article 3,- names two classes of laws that are not subject to the referendum: First, such laws as are declared by the act itself to be necessary for
Whether a law is in its substance and effect a law for the preservation of the public, peace, health, or safety, or for the support of the state government and its- existing public institutions, is a question for the courts to decide, subject to the rule that in case of doubt the legislative will should be given effect.
Whether an emergency exists which makes it necessary that a law belonging to either one of these two classes should go into imimediate effect is a question for the Legislature, to be conclusively evidenced by a declaration of emergency under the provisions of section 22, art. 3, of the Constitution.
Whether the necessity is immediate, where a law is for the preservation of the public peace, health, or safety, even though the emergency clause be not attached, is a question for the Legislature, to conclusively evidenced by a declaration in appropriate language.
The order appealed from is reversed.
Dissenting Opinion
(dissenting.) I concur fully in what is said in the .foregoing opinion in relation to the construction given sections 1 and 22, art. 3, of our Constitution; but I dissent from the result reached by my colleagues. The grounds for my dissent will be found,stated in my dissenting opinion upon the rehearing in Isaacson v. Parker, 178 N. W. 140.