10 S.D. 109 | S.D. | 1897
This action was commenced in this court for the purpose of determining whether certain persons, joined with the state as plaintiffs ©r defendants, have authority to.control the educational institutions of this state. The authority of
1 ‘Article SIV. State Institutions.
“Section 1. The charitable and penal institutions of the state of South Dakota shall consist of a penitentiary, insane hospital, a school for the deaf and dumb, a school for the blind and a reform school.
“Sec. 2. The state institutions provided for in the preceding section shall be under the control of a state board of charities and corrections, under such rules and restrictions as the legislature shall provide; such board to consist of not to exceed five members, to be appointed by the governor and confirmed by the senate, and whose compensation shall be fixed by law.
“Sec. 3. The state university, the agricultural college, the normal schools and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of nine members, appointed by the governor and confirmed by the senate, to be designated the regents of education. They shall hold their office for six years, three retiring every second year. The regents in connection with the faculty of each institution shall fix the course of study in the same. The compensation of the regents shall be fixed by the legislature.
‘ ‘Sec. 4. The regents shall appoint a board of five members for each institution under their control, to be designated the board of trustees. They shall hold office for five years, one
“Sec. 5. The legislature shall provide that the science of mining and metallurgy be taught in at least one institution of learning under the patronage of the state.”
‘ ‘Article XXIII. Amendments and Revisions of the Constitution.
“Section 1. Any amendment or amendments to this constitution may be proposed in either house of the legislature, and if the same shall be agreed to by a majority of the members elected* to each of the two houses, such proposed amendment or amendments shall be entered on their journals; with the yeas and nays taken thereon, and it shall be the duty of the legislature to submit such proposed amendment or amendments to the vote of the people at the next general election. And if the people shall approve and ratify such'amendment or amendments by a majority of the electors voting thereon such amendment or amendments shall become a part of this constitution: provided, that the amendment or admendments so proposed shall be published for a period of twelve weeks previous to the date of said election in such manner as the legislature may provide; and provided, further, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.”
The following joint resolution was proposed in one house of the legislature, agreed to by a majority of the members elected to each of the two houses, entered in full upon the journal of the senate, and entered by title only upon the jour
“A Joint Resolution Proposing Amendments to Sections 3 and 4 of Article 14 of the Constitution, Entitled ‘State Institutions,” and submitting the Same to a Vote of the People.
“Be it resolved by the senate, the house of representatives concurring:
“Section 1. Amendment. That section three (3) of article (14) of the constitution be amended so as to read as follows: ‘Sec. 3. The state university, the agricultural college, the normal schools and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the governor and confirmed by the senate under such rules and restrictions as the legislature shall provide. The legislature may increase the number of members to nine.
‘‘Sec. 2. Amendment. That article fourteen (14) of the constitution be amended by striking out section four (4) of the same.
“Sec. 3. Term of Office. From the time of the taking effect of this amendment the terms of office of all trustees theretofore appointed shall cease and determine.” i
Law 1895, Chap. 36.
All the ballots voted at the general election in 1896 contained, in a column with other proposed amendments to the constitution, the following:
11. Amendment. That section three (3) of article fourteen (14) of the constitution be amended so as to read as follows:
“§ 3. The state university, the agricultural college, the normal schools and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the governor and confirmed by the senate under such rules and restrictions as the legislature shall provide. The legislature may increase the number of members to nine.”
§ 2. Amendment. That article fourteen (14) of the constitution be amended by striking out section four (4) of the same.
'i 3. Term of Office. Prom the time of the taking effect of this amendment the terms of office of all the trustees theretofore appointed shall cease and determine.
Yes
No
“Shall the above amendment to the constitution be approved and ratified?”
Electors desiring to vote “Yes” will place a cross before- the word “Yes,” and those desiring to vote “No” will place a cross before the word “No.”
A majority of-the electors voting upon the above propositions voted “Yes.”
It is contended by the plaintiffs that Chapter 58, Laws 1897 under which defendants were appointed, is invalid for the following reasons: (1) The proposed am endment was no t entered upon the journal of the house of representatives. (2) The proposed amendment was not printed upon each ticket upon the ballots voted at the general election of 1896. (3) The legislature did not submit the proposed amendment to a vote of the people at the next general election, or at all. (4) The title to the joint resolution (Chap. 36, Law 1895) does not truly express the subject of the act or resolution, and being broader than the act itself, is void. (5) The proposed amendment was not published as provided by the constitution and laws of this state. (6) The proposed changes in the constitution constitute more than one amendment, and the same were not submitted in such manner that the people could vote for or
This court has recently had occasion to consider, with great care and the assistance of exhaustive arguments by able counsel, the principles which should control its deliberations in determining the validity of proceedings taken to amend the constitution. Its conclusions are thus stated by the presiding judge: “The two essential elements of an amendment to the constitution- under the provisions of Sec. 1, above quoted, are (1) that a majority of the two houses shall have agreed to the proposed amendment, .and (2) that the people shall have approved aud ratified the same by their votes. The other provisions prescribe the manner generally in which the essential acts shall be performed. It is well settled that provisions of a constitution, while mandatory, are, like statutes, to receive a fair and reasonable construction with the view of ascertaining the intention of the two houses of the legislature and the people in their proceedings taken to effect an amendment; and it is the duty of courts, when that intent is ascertainable from the proceedings taken, to carry it into effect. The action of the two houses, and the will of the people, as expressed by their vote, should not be set aside or disregarded upon purely technical grounds when no material requirement of the constitution has been omitted and where the proceedings taken clearly manifest the intention of those bodies and the people to amend the fundamental .law. It will be observed from the reading of Section 1, above quoted, that no particular form in which the two houses shall proceed in proposing, agreeing to, or submitting an amendment to the people is prescribed. The method of proceeding is left largely to the discretion of the two houses, subject to the condition that all requirements, of the constitu
Regarding plaintiffs’ first contention the authorities are conflicting. In Iowa and Nevada it is held that a simple entry on the journal of the title or object of a proposed amendment does not accomplish the intent of the constitution. Koehler v. Hill, 60 Iowa 543, 14 N. W. 738, and 15 N. W. 609; State v. Tufly (Nev.) 12 Pac. 835. In Kansas, Nebraska and Maryland it is held that an entry by an identifying reference is sufficient. Prohibitory Amendment Cases, 24 Kan. 700; In re Senate File No. 31 (Neb.) 41 N. W. 981; Worman v. Hogan (Md.) 27 Atl. 616. In Colorado the question was before the supreme court, but the decision really rests upon other grounds. Indeed, that court could not have regarded the requirement as mandatory, and have sustained an identifying reference, because the constitution of that state requires amendments to be ‘ ‘entered in full.” Const. Colo. Art. 19, § 2; Nesbit v. People 19 Colo. 441, 36 Pac. 221. The supreme court of California appear to have held both ways, finally deciding in favor of sustaining an identifying inference. Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; Thomason v. Ruggles, 69 Cal. 465, 11 Pac. 20; Paving Co. v. Tompkins, 72 Cal. 5, 12 Pac. 801; People v. Strother, 67 Cal. 624, 8 Pac. 383. Except in Colorado, the language construed in the several decisions cited is substantially the same as that
Plaintiffs second contention is untenable. Lovett v. Ferguson, (S. D.) 71 N. W. 765.
The third objection is that the legislature did not submit the jmoposed amendment to a vote of the people. The constitution declares that it shall be the duty of the legislature to submit the proposed amendments to the vote of the people at the next general election. Since the state was admitted to the Union, 14 amendments have been proposed, all in the form of joint resolutions, each of which, except three, has contained an express provision submitting the same to a vote of the people. Laws 1890, Chaps. 43, 44, 45; Laws 1891, Chap. 36; Laws 1893, Chaps. 37, 38, 39; Laws 1895, Chaps. 35, 36, 37, 38; Laws 1897, Chaps. 37, 38, 39. Undoubtedly, the practice followed in nearly every instance of formally declaring by joint resolution that the proposed amendment shall be submitted is highly commendable, and strictly meets the requirement of the constitution; but as held in Lovett v. Ferguson, supra, the essential facts prerequisite to a change of the organic law are the agreement of the two houses of the legislature and ratification by the people. The legislature having agreed to a proposed amendment, it became its duty to sub mit the same; that is, to afford the people an opportunity, at the next general election, to vote upon the proposition. Al
The fourth and fifth objections were not seriously urged upon the argument, and do not merit further attention than the statement that neither one can be sustained, the records in the secretary of state’s office showing that the amendment was published in the manner provided by the constitution and the laws of this state.
In reference to the sixth objection, it is hardly necessary to point out that the provision of the constitution requiring that amendments shall be so presented to the electors that they may vote upon each separately is one of the utmost importance, and one of substantial merit. Since the foundation of the federal government, nothing has been more productive of evil than the practice of so combining méritorious and vicious legislation that the former could not be secured without tolerating the latter. The reasons for preventing this pernicious practice are more forceful when considered in connection with the action of electors upon proposed constitutional amendments than when considered in connection with the action of legislators. In the
It is further insisted that, although the proposed amendment may have become a. part of the constitution, and Chapter