State ex rel. Richards v. Whisman , 36 S.D. 260 ( 1915 )

McCOY, P. J.

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.

[1] At the 1915 session of the Legislature there .was passed and enacted, with an emergency clause, chapter 258; the same being a general primary election law. In many material particulars, although not in all, this chapter 258 inherently conflicts with certain provisions of chapter 201, Laws of 1911. By the express provision of chapter 258, chapter 201 and all acts and parts of acts in conflict with chapter 258 were repealed. We will first consider the question of the emergency clause contained in chapter 258, as we view it in connection with the record in this case. Every law which the Legislature has power to enact, where there is no- emergency clause embodied therein, goes into effect 011 the next succeeding 1st day of July, unless vetoed by the Governor, or -unless a referendum petition referring the same to a vote is filed as required by law. If, as contended by appellants, the emergency clause to chapter 258 was void and of no effect (a question not necessary to be decided in this -case under the record herein), then the said chapter 258 is, in legal effect, the same as if no emergency was therein contained. Chapter 258 was not vetoed by the Governor, and it stands as one of -the conceded facts in this case that no referendum petition of any kind was ever filed requiring chapter 258 to be submitted to a vote of the people for approval. There is no provision in the Constitution that will permit or authorize the exercise of the referendum vote in the absence of the filing of a proper petition therefor. Not having filed a proper referendum petition requiring a vote on said chapter 258, the plaintiffs are not in a position to complain of -the invalidity of chapter 258 cm account of the emergency clause therein contained. The mere fact that this suit was commenced before July ist will not change the situation. The only thing that will prevent such an enactment, if otherwise valid, from going into effect on the ist day of July, is the exercise of the veto or the referendum.

[2] The mere commencement of a.suit to determine the constitutionality of an enactment, either with or without the emergency clause, will not prevent such an enactment from going into effect at the legally specified time; otherwise many salutary laws might be in this manner idefinitely postponed from going into effect at the times specified by the Constitution, and thereby placing, in the hand's of litigants and courts the power of regulating or varying the time fixed by the Constitution in which legislative acts shall go into effect. The attachment of an unwarranted and void emergency clause to an enactment could in no manner prevent the filing of a proper referendum petition. In order to have kept alive the question of the validity of the emergency clause contained in chapter 258, as a question for determination in this court, or the court below, a proper referendum petition should have been filed prior to the ist day of July last. Therefore, if the Legislature had the power to repeal chapter 201, and enact in place thereof chapter 258, then on and after the ist day of July, 1915, chapter 258 was' a valid and existing law of this state, whether the same became such with or without aii emergency clause. In Riley v. Carico, 27 Okla. 33, 110 Pac. 738, and in McIntosh v. State, 56 Tex. Cr. R. 134, 120 S. W. 455, it is held that the fact that the action of the Legislature in declaring an emergency to exist was void did not invalidate the act or relieve the necessity of filing a referendum petition, but resulted' in the act taking effect 90 days ’after the adjournment of the Legislature. It is therefore clear that the first ground of unconstitutionality qf chapter 258 urged by appellants is now merely a moot question. 3 Corpus Juris, pp. 358-360.

[3] As we view the record in this case, there is but one question before this court for determination, and that is: Had the Legislature power to repeal chapter 201 of 1911, and enact in place thereof the general primary law embodied in chapter 258, Laws of 1915? No rule of law is better settled throughout the United States than that a state Legislature has absolute power to enact, that is, pass, amend, or repeal, any law whatsoever it pleases, unless it is prohibited from so doing by either the state or federal Constitutions; that the courts can only restrain the execution of a statute when it conflicts with either one or the other of said Constitutions. In determining the constitutionality of a statute, as is well said in one of the cited' cases, we peruse the statute, then-examine the Constitution, and ascertain if this instrument says, “Thou sha-lt not,” and, if we find no inhibition, then the statute is -the law. The inhibition of a Constitution may be either express or implied ; that is, the Constitution may expressly prohibit any specified act of the Legislature, or the Canstitu-tion by its inherent terms may of necessity prohibit certain acts of a Legislature by reason of the inherent conflict that would arise between the terms of the Constitution and the power claimed in favor of the Legislature. Cooley’s Const. Lim. pp. 126, 236, 245, 252, 255; 36 Cyc. 944; Chamberlain v. Wood, 15 S. D. 216, 88 N. W. 109, 56 L. R. A. 187, 91 Am St. Rep. 674; Bon Homme County v. Berndt, 15 S. D. 494, 90 N. W. 147; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Commonwealth v. Reeder, 171 Pa. 505, 33 Atl. 67, 33 L. R. A. 141.

[4, 5] With these rules in view we will examine the question presented. Section 1, art. 3, State 'Constitution, as it originally exists, read as follows:

“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 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 vote of the people” — then the Constitution would have expressly prohibited the Legislature from amending or repealing initiated laws; or, if they had placed something like this in the constitutional 'amendment: “Initiated law's can be amended or repealed only by a vote of the people” — then this constitutional amendment would, by necessary implication, have prohibited the Legislature from repealing initiated laws. But no such limitation of the legislative power appears in such amendment or elsewhere in the Constitution. Appellants are, in effect, now asking this court to read into the Constitution something- that is not, either expressly or by implication therein. In some of our sister states the initiative and referendum constitutional amendment prohibís the repeal by the Legislature of initiated laws. Section i, art. 2, Const. Wash., as amended in 1912, provides that:

“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 laws in their state Constitutions, or why the Constitution builders of this state, and all these others, left such prohibition out of their Constitutions, is nor for us to inquire. It is enough for us to know that it a« left out of our Constitution. It is a matter of common knowledge that an ill-'advised and burdensome law might be placed upon our statute books by means of the initiative, as well as by an enactment of the Legislature. Such a law so placed upon the statute by the initiative would almost invariably remain a law at least four years, if the only method of repeal or amendment was by means of the initiative and vote of the people. It may have been that a majority of those drafting and proposing ■the initiative and referendum amendment to the Constitutions such as exists in this state were of the view that four years was too long a time to leave such an unwise law in force, and therefore purposely and intentionally left the repealing power as to all initiated laws in the hands of' the Legislature. It is not to be presumed that the Constitution builders of California -and Washington possessed all the wisdom upon this subject, and that all the Constitution makers in all these ten or a dozen other states blundered by leaving the repealing power as to initiated' laws in the hands of the Legislature. Even in the state of Washington, -after the lapse of two years, the Legislature is permitted to repeal an initiated law, thus recognizing that for some reason the Legisla,-ture should have repealing power, and also recognizing that the Legislature would have such repealing power unless so taken away. There are many suggestive reasons which might have influenced the Constitution makers of this and other states in leaving with the Legislature the power to repeal or amend an initiated law. If in the course of time we should have placed upon our statutes various initiated laws upon various general subjects, such as elections, banking, corporations, court procedure, assessment and taxation, schools, public officers, and if the Legislature possessed no power to repeal or amend such initiated laws, then, the Legislature would be powerless to pass any law in conflict with any part of such initiated laws. A Constitution is to be tested not by what .has been or is being done thereunder, but by what may be done under its authority. Sterritt v. Young, 14 Wyo. 146, 82 Pac. 946, 4 L. R. A. (N. S.) 169, 116 Am. St. Rep. 994. Under such conditions -the constitutional functions of the Legislature would thereby become so handicapped, curtailed, ar;d limited as- to be of but litte vlaue. We are of the view that the Constitution of-the state -cannot be so amended or nullified by means of initiated legislative enactments. We are of the view that the initiative and referendum- amendment was never intended as a means of so curtailing and limiting the constitutional power of the state Legislature, but was intended to preserve to- the people a greater share of, and control over, the legislative power, but without taking away from any -other constitutional department any -of its powers, excepting the veto- power of the state executive. Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, 75 Pac. 222; Straw v. Harris, 54 Or. 424, 103 Pac. 777; Kiernan v. Portland, 37 Or. 454, 111 Pac. 379, 112 Pac. 402, 37 L. R. A. (N. S.) 339; People v. Prevost, 55 Colo. 199, 134 Pac. 129; State v. Dist. Court, 50 Mont. 134, 145 Pac. 721. The Supreme Court of every state having an initiative and referendum constitutional provision similar to that of this state which hais been called upon -to determine- the question has held that the Legislature has the power to repeal -or amend an initiated law. The Supreme Court of the state of Oregon, in Kadderly v. Portland, 44 Or. 118, 74 Pac. 710, among other things, said:

“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 Missouri and Colorado. State v. Roach, 230 Mo. 408, 130 S. W. 689, 139 Am. St. Rep. 639; In re Senate Resolution, 54 Colo. 262, 130 Pac. 333; People v. Prevost, supra. Also see note on initiative and referendum 50 L. R. A. (N. S.) p. 195.

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 of the referendum power, under any circumstances, with -or without an emergency clause, and this regardless of the size of the majority vote by which they were passed. Section 22, art. 3, provides that:

“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. Kansas, 123 U. S. 623, 661, 8 Sup. Ct. 273, 297, 31 L. Ed. 205. In State v. Meath the court 'held that, as, under the Constitution of 1889, the courts had decided they were without authority to review the legislative discretion in declaring an emergency they should, after .the adoption of the initiative and referendum amendment, scrutinize a legislative declaration of an emergency and declare the declaration void' in case it is obviously false; for the spirit of a law and the mischief intended to be remedied must be considered. In Mugler v. Kansas it is held that:

“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 referendum petition signed 'by at least 5 per cent. of the electors of the state.

[6] This- being a cause involving a matter of public concern, by written -stipulation of counsel for both -appellants and respondent, W. A; Lynch, Esq., attorney, as amicus curiae, has filed a brief -contending that chapter 201, Laws of 1911, never became a valid initiated law of this state, in that the same was not approved by a majority vote -of -all the electors-of this state; but we are of the view that this contention- is not well grounded, for the reason-that neither under the 'Constitution nor the statute (section 22, Pol. Code) under which initiated laws may be voted upon is it required that the same shall receive more -than a majority of all the votes cast upon the measure submitted.

The judgment and order appealed from are affirmed.