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AND

THE LAWS

PASSED AT THE

SPECIAL SESSION

OF 1916

Begun and Held at Pierre, the Capital of Said State, on Tuesday, the
Eighth Day of February, 1916, and Concluded

February 11, 1916

AND

THE LAWS

PASSED AT THE

FIFTEENTH SESSION

OF THE LEGISLATURE

OF THE

STATE OF SOUTH DAKOTA

Begun and Held at Pierre, the Capital of Said State, on Tuesday, the
Second Day of January, 1917, and Concluded on

March 2, A. D. 1917

OFFICIAL EDITION

1917

HIPPLE PRINTING CO.

Pierre, S. D.

ANNOTATED CONSTITUTION OF

SOUTH DAKOTA

(Constitution adopted by popular vote October 1, 1889. Yeas, 70,131; Nays, 3,267. Took effect Nov. 2, 1889, when South Dakota was admitted into the Union.)

Annotations and reference notes by John Howard Gates, Judge Supreme Court.

The organic law of a territory takes the place of a constitution. First Nat. Bank v. County of Yankton, 101 U. S. 129, 25 L. ed. 1046. Hence the territorial decisions upon constiutional law are of importance and authoritative where the provisions of the organic law and of the constitution are the same. The author has therefore inserted herein notes of Dakota decisions bearing on constitutional law. He has also inserted notes on decisions of the Federal Courts in important cases arising from the Districts of North Dakota and South Dakota.

(Annotations and editorial matter on the constitution
copyrighted by John Howard Gates, 1917.)

PREAMBLE

We, the people of South Dakota, grateful to Almighty God for our civil and religious liberties, in order to form a more perfect and independent government, establish justice, insure tranquility, provide for the common defense, promote the general welfare and preserve to ourselves and to our posterity the blessings of liberty, do ordain and establish this Constitution for the State of South Dakota.

One of the means for providing for the "common defense", promoting the "general welfare" and preserving "the blessing of liberty" is the organization and maintenance of the militia. Ch. 51 '17 was enacted

for a public and beneficial purpose within the purview of the purposes for which the constitution was created. State ex rel. Morris V. Handlin, 162 N. W. 379.

ARTICLE I.

NAME AND BOUNDARY

§ 1. The name of the state shall be South Dakota.

§ 2. The boundaries of the State of South Dakota shall be as follows: Beginning at the point of intersection of the western

2 2 1970

boundary line of the State of Minnesota, with the northern boundary line of the State of Iowa and running thence northerly along the western boundary line of the state of Minnesota, to its intersection with the 7th standard parallel; thence west on the line of the 7th standard parallel produced due west to its intersection with the 27th meridian of longitude west from Washington; thence south on the 27th meridian of longitude west from Washington to its intersection with the northern boundary line of the State of Nebraska; Thence easterly along the northern boundary line of the State of Nebraska to its intersection with the western boundary line of the State of Iowa; thence northerly along the western boundary line of the state of Iowa to its intersection with the northern boundary line of the state of Iowa; thence east along the northern boundary line of the State of Iowa to the place of beginning.

ARTICLE II.

DIVISION OF THE POWERS OF GOVERMENT

The powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this constitution.

Power to amend the constitution belongs exclusively to the legisla ture and electors. It is legislation of the most important character. The supreme court has power to determine what such legislation is, what the constitution contains, but

not what it should contain, nor can it interpose in any case to restrain the enactment of an unconstitutional law. State ex rel. Cranmer v. Thorson, 9 S. D. 149, 68 N. W. 202, 33 L. R. A. 582.

ARTICLE III.

LEGISLATIVE DEPARTMENT

§ 1. 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 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.

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 apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: "Be it enacted by the people of South Dakota." The legislature shall make suitable provisions for carrying into effect the provisions of this section. (As amended.)

This section amended as above Nov. 8, 1898, pursuant to ch. 39 '97. Amendment proposed by ch. 132 '13 rejected Nov. 3, 1914.

The power to make laws regulating or prohibiting the sale of intoxicating liquors is undoubtedly within the police power. County Option Law, ch. 70 '87 was not a delegation of legislative power. Ter. ex rel, McMahon v. O'Connor, 5 Dak. 397, 41 N. W. 746, 3 L. R. A. 355.

Ch. 17 Sp. Laws '85 exempting certain counties from the operation of ch. 115 '83 was within the police power of the territorial legislature. Sprague v. F. E. & M. V. R. Co., 6 Dak. 86, 50 N. W. 617.

Ch. 54 '90 relating to mercantile or commercial agencies is within the legislative power and is not an interference with interstate commerce. State v. Morgan, 2 S. D. 32, 48 N. W. 314; writ of error dismissed, 159 U. S. 261, 40 L. ed. 145, 15 Sup. Ct. Rep. 1041.

Police power defined. Under this power the state may regulate but not prohibit the citizen from carrying on any trade, occupation or business that is not offensive to the community nor injurious to society. State v. Scougal, 3 S. D. 55, 51 N. W. 858, 15 L. R. A. 477, 44 Am. St. Rep. 756.

To hold that a judgment, valid when entered, became voidable upon the enactment of ch. 89 '95 would deprive unreversed judgments of the element of conclusiveness, intrench upon the constitutional principle which separates the powers and functions of the three great departments of government and in effect

amount to a reversal of the judgment by the legislative power of the state. Skinner v Holt, 9 S. D. 427, 69 N. W. 595, 62 Am. St. Rep. 878.

Ch. 65 '01 contained the usual emergency clause and an additional clause that the act was necessary for the immediate preservation and support of the existing public institutions of the state. It was held that the act became effective immediately upon its approval and was not subject to the referendum because the legislative declaration that the act was necessary for the immediate preservation etc. was conclusive upon the court. It was held that with the usual emergency clause and without such declaration the act would not be subject to the referendum because the provisions of section 22 of this article must be read as an additional exception to those mentioned herein wherein the referendum cannot be invoked. State ex rel. Lavin v. Bacon, 14 S. D. 394, 85 N. W. 605.

The contention that ch. 72 '97 was a delegation of legislative power to local communities to prohibit or authorize the sale of intoxicating liquors was held untenable. State ex rel. Crothers v. Barber, 19 S. D. 1, 101 N. W. 1078.

The power to prescribe the conditions which shall be expressed in insurance policies is legislative and cannot be delegated. Phenix Ins. Co. v. Perkins, 19 S. D. 59, 101 N. W. 1110.

The commerce clause of the federal constitution is not violated by Pol. Code §§2834, 2838 and 2852 making it an offense for a traveling

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