9 S.D. 149 | S.D. | 1896
This action was commenced in this court for the purpose of enjoining defendant, as secretary of state, from certifying to the auditors of the state the question contained in the following joint resolution passed at the last session of the legislature, an engrossed copy of which is now on file in his office:
“House joint resolution proposing an amendment to the constitution. 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electors of the State of South Dakota the following question: ‘Shall Article twenty-four of the constitution be repealed?’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. 88.
After filing certain objections to the issuance of a restraining order, pending litigation, defendant answered, evidence was introduced on behalf of the relator, and the cause was heard and submitted, a decision upon defendant’s objection being reserved for consideration with the case upon its merits. The relator is an elector and taxpayer. Defendant intends to, and will, unless restrained by injunction or other legal process, certify the question .as a proposed constitutional amendment. The relator contends that the passage of the resolution, and
There is another view, which involves the structure of the state government and the relation of its several departments. Should it be conceded that the relator has such an interest in the matter as entitles him to be heard, or that the action involves a question of such public concern as would warrant an attempt by the attorney general to obtain an injunction, could this court issue it? No precedent for such an action has been presented by counsel or discovered by the court. In discussing this phase of the case it will be assumed an amendment of the constitution was intended requiring the concurrent action of the legislature and electors. The former has acted. Its action will be communicated to the latter by means of defendant’s certificate. Until the latter shall have expressed their approval, the proceeding is incomplete, and the constitution will remain unchanged. The proposed amendment is on its way to the electors. Can this court, at this time, impede its progress? Can it be called upon to anticipate conditions which may never exist? Can it interpose its process between the legislature and electors, who are alone clothed with power to modify the fundamental law, before both have acted, and while the matter is pending and incomplete? The powers of the state government are divided into three distinct departments— the legislative, executive and judicial. The powers and duties of each are prescribed by the constitution. Const. Art. 2. Power to amend the constitution belongs exclusively to the legislature and electors. It is legislation of the most important character. This court has power to determine what such legislation is, what the constitution contains, but not what it should contain. It has power to determine what statutory laws exist, and whether or not they conflict with the constitution; but it cannot say what laws shall or shall not be enacted. It has the power, and it is its duty, whenever the question arises in the usual course of litigation, wherein the substantial rights
Having decided it is without jurisdiction, this court advisedly and properly refrains from expressing any opinion upon the effect of the joint resolution as a proposed constitutional amendment. It leaves that matter where it found it. It is silent upon the subject because the law does not authorize it to speak. An injunction cannot be granted. The action must be dismissed, and defendant have judgment for costs. It is so ordered, all the judges concurring.