| S.D. | Jun 18, 1910
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, Daws 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, Daws 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
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 district's, 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
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. U. S. v. Williams, 194 U. S. 295, 24 Supt. Ct. 719, 48 L. Ed. 979" court="SCOTUS" date_filed="1904-05-16" href="https://app.midpage.ai/document/united-states-ex-rel-turner-v-williams-96089?utm_source=webapp" opinion_id="96089">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, 11 Wall. 124, 20 L. Ed. 122" court="SCOTUS" date_filed="1871-04-18" href="https://app.midpage.ai/document/collector-v-day-88308?utm_source=webapp" opinion_id="88308">20 L. Ed. 122. Therefore, when the federal Constitution said: “The times, place and manner of holding elections
We are also of the opinion that' the word “Legislature," as used in section 4,- art. 1, of the federal Constitution, does not mean simply the members who compose the Legislature, acting in some ministerial capacity, but refers to and means the lawmaking body or power of the state, as established by the state Constitution, and which includes the whole constitutional lawmaking machinery of the state. State governments are divided into executive, legislative, and judicial departments, and the federal Constitution refers to the “Legislature” in the sense of its being the legislative department of the state, whether it is denominated a Legislature, General Assembly, or by some 'other name. Under section 1, ait. 3, of the state Constitution, it will be observed, the people of this state have reserved to themselves, as a part of the lawmaking power, the right to vote by referendum, upon any law passed by the Legislature, with certain specified exceptions, prior to the going into effect of such law. That the exceptions mentioned are “such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government or its existing state institutions." It is clear that said chapter 223 is not within any of these exceptions. Under the Constitution of this state, the people, by means of the initiative and referendum, are a part and parcel of the lawmaking power of this state, and the Legislature is only empowered to act, in accordance with the will of the people as expressed by the vote, when the referendum is properly put in operation. The term “Legislature” has a restricted meaning which only applies to the membership thereof, and it also has a general meaning which applies to that body of persons within a state clothed with authority
We have been unable to find a precisely' similar case involving the referendum provision of a state-Constitution similar to ours. About the only jurisdiction where similar questions have arisen in relation to elections mentioned in this section of the federal Constitution is before the election committee in the lower house of Congress. In Farlee v. Runk, 1 Bart. Contested El. Cas. 87, it was held that, where there was a conflict between the state Constitution and an act of the Legislature in regard to the place of voting for representatives in Congress, the provisions of the Constitution were binding. In Shiel v. Thayer, 2 Bart. Contested El. Cas. 349, it was held that where the Oregon state Constitution fixed the time for holding an election for Representatives in Congress, and the Legislature fixed another time, the time fixed by the Constitution must gove'rn; that the constitutional provision had placed it beyond the power of the Legislature to change the time of holding such elections. In Baldwin v. Trowbridge, 2 Bart. Contested El. Cas. 46, the minority report in presenting the legal side of the controversy shows the following pertinent language which meets with our approval: "But it was argued that this power was by express terms left, not to the states simply, but to the Legislatures thereof, and that this is such a limitation upon the people of the states that they have now power to restrict their Legislatures in -the exercise of this right, conferred upon them -by the federal Constitution; but I submit, with all due respect, that not only the history and object of the section under consideration, but the proper definition of the term ‘Legislature,’ as therein used, show the falacy of this construction. The ‘Legislature’ of the state, in its fullest and broadest sense, signifies that body in which all the legislative power of a state reside, and that body is the people themselves,
While we are aware that contested congressional election cases are not always decided from a judicial standpoint, and have not the weight in courts accorded to well-considered judicial opinions, still we are also mindful of the fact that -the congressional election committee has at all times had among its number some of the best legal talent of our country, and we do not hesitate to accept the legal principles advanced by such election committee where they appear to be based on logical reason.
The demurrer to the answer may be overruled, and judgment entered in favor of defendant dismissing the petition upon its merits, and the peremptory writ of mandamus denied.