10 S.D. 44 | S.D. | 1897
This was an action for the recovery of the purchase price of intoxicating liquors sold by plaintiff to the
The demurrer was evidently sustained by the court upon the theory that the proceedings taken to amend the constitution by the two houses of the legislature at its session in 1895, and the vote of the people had thereon at the general election held in November, 1896, were valid, and had the effect of amending that instrument, by striking therefrom the said article. The joint resolution adopted by the two houses of the legislature reads as follows:
House Joint Resolution proposing an amendment to the constó' tution — A Joint Resolution to amend the constitution of the state of South Dakota by repealing Article 24 thereof, relating to prohibition, and submitting the same to a vote of the people.
‘ ‘Be it resolved by the house of representatives of the state of South Dakota, the senate concurring:
Section 1. (Question Submitted.) That at the general election to be held in the state of South Dakota on the first Tuesday after the first Monday in November, 1896, there shall be submitted to a vote of the qualified electors of the state of South Dakota the following question: ‘Shall article twenty-four of the constitution be repealed?’”
Laws 1895, Chap. 38.
The important question therefore presented for our decision in this case is: Were the proceedings taken by the two houses of the legislature and the people „to amend the constitution of this state, by striking therefrom Article 24, entitled “Prohibition,” valid, and was the constitution amended by striking therefrom that article? Two methods are provided
The two essential elements of an amendment to the constitution under the provisions of Sec. 1, above quoted, are (1)
It is contended by appellant that, independently of the title to the resolution there is nothing in the proceedings to show that an amendment was proposed or agreed to. It is further
In re Senate File 31, supra, the proposed amendment was agreed to and submitted in the following form:
‘ ‘A bill for an act to submit to the electors of the state, for rejection or approval, an amendment to the constitution of the state to prohibit the manufacture, sale and keeping for sale of intoxicating liquors as a beverage, and providing for the manner of voting on such amendment. * * *
‘‘Section 1. That at the general election to be held on Tuesday succeeding the first Monday of November, A. D. 1890, there shall be submitted to the electiors of this state, for approval or rejection, an amendment to the constitution of this state in words as follows:”
And in the Prohibitory Amendment Cases, supra, the proposed amendment was submitted in the following form, as stated in the opinion of the court: ‘‘The joint resolution, as it appears in the statutes of 1879, reads as follows: ‘Section 1. The following proposition to amend the constitution of the state of Kansas shall be submitted to the electors of the state, for adoption or rejection at the general election to be held on Tuesday succeeding the first Monday of November, A. D. eighteen «hundred and eighty.’ * * * The original document with the endorsements of the officers of the two houses and the signature of the governor, is in the office of the secretary of state, and is as published.” ,
A. careful examination of these cases discloses the fact that in neither of them does it affirmatively appear that the two houses agreed to the proposed amendment in any other manner than by agreeing to submit the proposed amendment to the people by the required constitutional majority; yet in neither of them was it questioned that the proposed amendment was properly agreed to by the two houses.
A few extracts from the house journal will show the manner in which the houses proceeded in adopting and submitting the proposed amendment:
“House Journal.
“January 10th, 1895. Mr. Russell introduced House Joint Resolution No. 7: A Bill for an act repealing Article 24 (Prohibition) of the constitution.
“January 11th, 1895. House Bill No. 7, a bill for an act repealing Article 24 (Prohibition) of the constitution, was read the second time and referred to the committee on temperanpe
The resolution as spread upon the records is the same as published in the laws of 1895, and heretofore given. The pro
No one, we think, can read, these proceedings without arriving at the conclusion that the two houses agreed to the proposed amendment to the constitution by striking therefrom Article 24. This court will not presume that the legislative department of the government would attempt to submit to the vote of the people a proposed amendment to the fundamental law, which they themselves had not agreed to, or go through the idle ceremony of submitting an amendment to the people merely to obtain an expression of their views upon the question submitted. Such an assumption or presumption would be to impute to a co-ordinate branch of the government either gross ignorance or the deliberate intention of deceiving the people. The two houses havingdreated the amendment as one proposed to the constitution, and submitted the same to a vote of the people, they must be conclusively presumed to have agreed to it, as the same could only have been legally submitted after being agreed to. The contention, therefore, that the only proposition agreed to was as to the submission to the people of the question ‘ ‘Shall Article twenty-four of the constitution be repealed?” is exceedingly hypercritical and technical, when viewed in the light of the proceedings as found in the journals of the two houses. These proceedings, though unartistic and lacking in that precision that should characterize proceedings taken to amend the constitution, are, nevertheless, sufficient to clearly show that the intention of the two houses was to agree to the amendment proposed.
The further objection is made that the question of the proposed amendment was not properly submitted to the people. The form in which it was submitted, and in which it appeared upon the ballot, resulted from a change made in the statute subsequently to the adoption of this resolution by the two houses! Sec. 1, Chap. 86, Laws 1895, provides that a proposed amendment to the constitution shall be followed by the words “Shall
Again, it is contended that if the proposition, “Shall Article twenty-four of the constitution be repealed?” as voted on by the electors, be added to that instrument, it would not have the effect to change the constitution or amend it. But the proposition was not to add anything to the constitution, but simply to strike out an article, and nothing was to be added or substituted in its place. The two houses having agreed to strike out this article, and the people having approved and ratified the same, a majority of the members of each branch of the legislature and a majority of the electors agreed to do precisely the same thing, namely, to strike out that article.
The last proposition that we shall consider is, that the proposed amendment was not printed on each ticket on the ballot. Chap. 86 of the Laws of 1895 provides for the amendment of
As the article under consideration had been stricken from the constitution, and the laws enacted to carry the same into effect had been repealed prior to the time of the alleged sale, the answer contains no defense to the action, and the court ruled correctly in sustaining the demurrer. The order, therefore, sustaining the demurrer is affirmed.