154 N.W. 707 | S.D. | 1915
This suit was instituted by .plaintiffs, R. O-Richards and 'others, to restrain defendant, as county auditor of Beadle county, from complying with the requirements of chapter 258, Laws of 1915, upon the ground that said legislative enactment is unconstitutional and void: (1) In that it contains an emergency clause making it take immediate effect, thereby, as it is alleged “depriving the people of the expressly reserved right of having the law'submitted to the voters”; (2) in that the Legislature ■was without the power to repeal chapter 201, Laws of 1911, commonly known as the “Richards Primary Law,” the same, as it is alleged, “being a law enacted by a direct vote of the people under the initiative and referendum.” Findings and judgment were in favor of defendant, and plaintiffs appeal.
“The legislative power shall be vested in a Legislature which shall consist of a Senate and House of Representatives.”
That was a grant of general plenary power conferred upon the Legislature by the people to- enact, amend, or repeal any statute law, excepting only in those instances where prohibited by such Constitution itself, or by the federal Constitution. In 1898 said section 1, art. 3, was amended- to- read as follows:
“The -legislative power [of the state] shall be vested in a Legislature which shall consist of a Senate and 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 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 law-s 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*269 qualified electors of the state shall be required to invoke -either the initiative or the referendum.
“This section shall not be -construed so- as to deprive the Legislature or -any member thereof of the right to propose any measure. The veto power of the executive shall not be -exercised as to measures referred to a vote- of the people. This section shall ap-ply to municipalities. The enacting clause of all laws approved by -a vote of the electors of -the state- shall be: ‘Be i-t enacted 'by the people of South Dakota/ The Legislature shall make suitable provisions for carrying into effect the provisions -of this section.”
As we view this constitutional amendment, there is nothing therein -contained which, either expressly o>r impliedly, in any degree, conflicts with, inhibits, limits, abridges, or prohibís any part of the legislative power originally granted to it to enact, amend, or repeal any law which it might have enacted before the adoption of ■this amendment. The fact that the people themselves may propose or enact laws in connection w-ith the Legislature in no- manner conflicts with or prohibits the Legislature from itself also enacting the same law that might be desired -by the people. If the Legislature of its own volition should enact -the same law desired by the people, the initiative would then become unnecessary and useless as to such law. The -evident purpose of this constitutional amendment was not to curtail -or limit the powers of the Legislature to enact laws, but the purpose was to compel enactment by the Legislature of measures desired by the people, and, if the Legislature- neglected to a-c-t -as so desired 'by the people, that then the people by means of th-e initiative might enact such measures into laws themselves. And, recognizing the right of the Legislature to enact laws as it pleased, within all its constitutional powers, the -referendum was designed as a -check upon all legislative enactments not favored by the people. The only prohibition or inhibition or limitation, in relation to legislative power appearing in the initiative portion of the amendment is that which relates to the veto- power, and which read's:
“The veto power of the executive shall not be exercised as to measures -referred to a vote of the people.”
If the framers of this 'constitutional amendment had placed therein language something like the following: “No Legislature shall have power t-o repeal any initiative measure referred to a
“The veto power of the Governor shall not extend to measures initiated by or referred to the people.”
And that:
“No-act, law, or bill approved by the people can be amended or repealed by the Legislature within a period of two years following such enactment.”
Section 1, art. 4, of the California initiative and referendum constitutional amendment provides that measures initiated or adopted by the people are not subject to the veto power of the Governor; and no measure adopted by the people under the initiative can be amended or repealed except by a rote of the electors. Bjr the Washington Constitution the Legislature is for a time expressly prohibited from amending or repealing any initiated law. While in the California Constitution the Legislature is not ■expressly mentioned, still the power of the Legislature to amend or repeal an initiated law ¡submitted to the people is effectually prohibited by the inherent terms of such Constitution by necessary implication. In the states of Arkansas; Colorado, Missouri, Montana, Nebraska, Oklahoma, Oregon, Ohio, and some others, the initiative and referendum constitutional provisions are similar to that in this state, and contain a prohibition against the veto power of the state executive, but make no mention of any prohibition as against the .power of the Legislature to amend or repeal initiated laws. Why the Constitution builders of Washington and California put such a prohibtion as to legislative repeal of initiated
“N-o-w, the initiative and referendum amendment d-oes not abolish or destroy the republican form of government, or substitute another in its place. The representative character of the government still - remains. The people have simply reserved' to themselves a larger. share of legislative power, but they have not overthrown the republican form of the government, or substituted another in its place. The government is still -divided into, the legislative, executive, and judicial departments, -the duties of which are discharged by representatives selected by the people. Under this amendment, it is true, the people may exercise a legislative power, -and may, in effect, veto or d'ef-eat bills passed and approved by the Legislature and the Governor; but the legislative and executive departments are not destroyed, nor are their powers or authority materially curtailed. Laws proposed and enacted by the people under the initiative clause of the amendment are subject to the -same constitutional limitations -as other statutes, and may be amended or repealed by the Legislature at will.”
To the same effect are the decisions of the Supreme Court of
It is urged by appellants that if the Legislature has the power to amend or repeal initiated laws, and that if the Legislature also has the power to prevent the operation of the referendum as to such an amending or repealing statute by passing the same by a twodhird-s majority vote, with an 'emergency -clause embodied therein, -then the initiative and referendum amendment to •the Constitution becomes a -farc-e and -of no practical utility. We are of the view that the premise from which this conclusion is drawn is untrue. This contention, with relation to such- use by ■the Legislature of the emergency clause, .requires us to' further consider the -emergency proposition in connection with appellants’ second ground of alleged invalidity of said chapter 258. We are of the view that, where the Legislature enacts a law amending or repealing an initiated law, such law may be submitted" to. referendum vote under the same conditions as may be submitted to vote any and all laws which are the isubjeot -of constitutional referendum-, and this wholly regardless of whether or not such, amending or repealing act contains -an emergency clause; in other words, all those enactments b-y the Legislature which are the subject of referendum are not subject to the emergency -clause, and, vice versa-, all those enactments which a-re. subject to- the. emergency clause are not subject-to -the referendum. The -only lawful function of the emergency clause is to- cause an -enactment to go into effect as -soon- as signed by t-h-e executive, instead of waiting- until the first day of the next July. It must be observed that the -initiative and referendum, amendtnent to -the Constitution provides that any 1-a-ws which the Legislature may have enacted shall, upon a proper referendum petition being filed, be -submitted to a vote of th-e 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. Such- laws comprehended-within this exception, as -their names- and nature imply, are emergency measures. As to. such emergency measures there -can .be. no- exercise
“No -act shall take effect until ninety days after the adjournment of the session at whi-ch it was.passed, unless in case of emergency (to -be expressed in the preamble or body of the act) the Legislature by a vote of two-thirds of all the members elected to each house, otherwise direct.”
Sections 1 and 22 -of article 3 should be construed -and read together as if forming different parts of but one section. State v. Bacon, 14 S. D. 394, 85 N. W. 605. The emeigency measures mentioned in section 22 must -and can only refer to the same emergency measures mentioned in the referendum clause exception -contained in section 1. It therefore follows that the Legislature, by nec-essary -implication, -is only authorized to -declare emergencies in that class of measures specified in the said exception -to- the referendum -clause. As to al-1 emergency measures and acts within the purview of this exception, the Legislature may declare an emergency t-o exist, for the -purpose and -to- the -end that such enactment may at once go- -into effect, -and such declaration and finding as to -the existence of such emergency is final, and not within the power or province of the courts to question. But as to any measure, law, or -enactment clearly not within the -class -of emergency measures specified within- sai'd exception, the Legislature has no pow-er or authority -to- declare an emergency to exist in relation thereto, by any vote, however large the same may be; and the action of the Legislature in embodying emergency clasuses in measures clearly -not comprehended within the said exception are wholly unwarranted and void, and' should be s-o- held by the c-ourts. Not that -the act -itself would be void, but the emergency clause would be void, with- the result that the a-ct w-ould not go into- effect until t-h-e 1st day of the next July, and' also with -the result that, in the -event -of a proper referendum petition being filed as required by law, such enactment would not go into- effect until approved by a majority vote of the electors of the state. Riley v. Carico, supra; McIntosh v. State, supra; Sears v. Multnomah Co., 49 Or. 42, 88 Pac. 522; McClure v. Nye, 22 Cal. App. 248, 133 Pac. 1145; State v. Meath (Wash.) 147 Pac. 11; Mugler v. Kan
“The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look .at the substance of things, whenever they enter upon 'the inquiry whether the Legislature has transcended the limits of" its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects,, or is a palpable invasion of rights secured by the fundamental law, it is ¡the duty of the courts tq iso adjudge, and thereby give effect to the Constitution.”
Under this view the initiative and referendum is a workable and efficient law; that whenever the Legislature shall have passed •an act repealing an initiated law, not comprehended within the emergency exception to the referendum, clause, the same may be referred to a referendum vote the same as may any other law which is subject to the referendum. We are of the view that this was the clear intention of the framers of the initiative and referendum amendment to our Constitution as expressed by the plain terms thereof.
We therefore hold that the Legislature had the power to, repeal chapter 201, Laws of 19x1, and to enact in lieu thereof chapter 258; that the only relief the courts might have granted under any circumstances growing out of the enactment of chapter 258, for reasons hereinbefore stated, was to have ordered and required that the enactment or law known as 'chapter 258 be submitted to a referendum vote of the people, notwithstanding the emergency clause thereto annexed; but that cannot ’ be granted, for the reason that 'the people have not invoked the referendum or put the ■same in operation as to said .enactment by the filing of a referen
The judgment and order appealed from are affirmed.