The South Dakota State Constitution 9780199378715, 9780199926671

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n  The South Dakota State Constitution

The Oxford Commentaries on the State Constitutions of the United States G. Alan Tarr, Series Editor Professor G. Alan Tarr, Director of the Center on State Constitutional Studies at Rutgers University, serves as General Editor for this important new series which in its entirety will cover each of the 50 states. Each volume of The Oxford Commentaries on the State Constitutions of the United States contains a historical overview of the state’s constitutional development, plus a section-by-section analysis of the state’s current constitution. Other features included in the volumes are the text of the state’s constitution, a bibliographic essay, table of cases, and index. This series provides essential reference tools for those investigating state constitutional development and constitutional law.

The South Dakota State Constitution Patrick M. Garry

the oxford commentaries on the state constitutions of the united states G. Alan Tarr, Series Editor

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford  New York  Auckland Cape Town Dar es Salaam Hong Kong Karachi  Kuala Lumpur Madrid  Melbourne  Mexico City Nairobi  New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary  Italy Japan Poland Portugal Singapore  South Korea Switzerland Thailand  Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016

© Oxford University Press 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Garry, Patrick M., commentator.   The South Dakota State Constitution / Patrick M. Garry.    pages cm.—(The Oxford commentaries on the state constitutions of the United States)   Includes bibliographical references and index.   ISBN 978-0-19-992667-1 (hardback) 1. Constitutions—South Dakota. 2. Constitutional law—South Dakota. 3. Constitutional history— South Dakota. I. South Dakota. Constitution. II. Title.   KFS34011889.A6 G37 2014  342.78302—dc23 2013050408 9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com

For Candice Spurlin, with her steady and expert research assistance, and for Stephannie Bonaiuto, John Hagemann, and the Hagemann Center

n Contents

Series Foreword by G. Alan Tarr Acknowledgments PART ONE 

n  The History of the South Dakota Constitution

The Drive to Statehood Territorial Status Pressures for Territorial Division and Statehood Debate over the Territorial Capital Factors Pushing for Statehood Obstacles to Statehood Statehood Achieved Constitutional Conventions The 1883 Huron Convention The 1883 Sioux Falls Convention The 1883 Ratification Campaign The 1885 Convention Additional Areas of Convention Debate The 1889 Convention Topics of Significant Debate at the 1889 Convention Statehood Achieved The 1972 Constitutional Revision PART TWO 

xix xxi

3 3 4 6 8 10 12 13 13 14 17 20 23 26 31 33 34

n  The South Dakota Constitution and Commentary

Preamble

43

Article I: Name and Boundary

45

Section 1. Name of State Section 2. Boundaries of State

45 45

Article II: Division of the Power of Government

47

Article III: Legislative Department

51

Introduction and History

51 vii

viii  n   C o n t e n t s

Section 1. Legislative Power—Initiative and Referendum The Legislature and Legislative Power Initiative and Referendum Section 2. Number of Legislators—Regular Sessions Section 3. Qualifications for Legislative Office— Officers Ineligible Section 4. Disqualification for Conviction of Crime—Defaults on Public Money Section 5. Legislative Reapportionment Section 6. Compensation—Regular Sessions Section 7. Convening of Annual Sessions Section 8. Oath Required of Legislators and Officer—Forfeiture of Office for False Swearing Section 9. Each House as Judge of Qualifications—Quorum— Rules of Proceedings—Officers and Employees Section 10. Filling Legislative Vacancies Section 11. Legislators’ Privilege from Arrest—Freedom of Debate Section 12. Legislators Ineligible for Other Office—Contracts with State or County Section 13. Legislative Journals—Recording of Yeas and Nays Section 14. Elections Viva Voce Section 15. Open Legislative Sessions—Exception Section 16. Adjournment of Legislative Houses Section 17. Reading of Bills Section 18. Enacting Clause—Assent by Majority—Recording of Votes Section 19. Signing of Bills and Resolutions Section 20. Origin of Bills—Amendment in Other House Section 21. One Subject Expressed in Title Section 22. Effective Date of Acts—Emergency Clause Section 23. Private and Special Laws Prohibited Section 24. Release of Debt to State or Municipality Section 25. Games of Chance Prohibited—Exceptions Section 26. Municipal Powers Denied to Private Organizations Section 27. Suits against the State Section 28. Bribery and Corrupt Solicitation of Officers— Compelling Testimony—Immunity from Prosecution Section 29. Legislative Powers in Emergency from Enemy Attack Section 30. Power of Committee of Legislature to Suspend Administrative Rules and Regulations Section 31. Convening of Special Sessions upon Petition Section 32. Term Limitations for United States Congressmen

54 54 56 62 63 63 64 66 67 67 67 70 70 70 71 72 73 73 73 74 74 75 75 77 78 80 81 83 85 90 91 91 91 92

C on t e n t s   n   ix

Article IV: Executive Department Section 1. Executive Power Section 2. Qualification, Election and Term Section 3. Powers and Duties of the Governor Section 4. Veto Power Section 5. Powers and Duties of Lieutenant Governor Section 6. Succession of Executive Power Section 7. Other Executive Offices—Powers and Duties Section 8. Reorganization Section 9. Appointment and Removal Power Article V: Judicial Department Section 1. Judicial Powers Section 2. Supreme Court Section 3. Circuit Courts Section 4. Courts of Limited Jurisdiction Section 5. Jurisdiction of Courts Section 6. Qualifications of Judicial Personnel Section 7. Judicial Selection Section 8. Selection of the Chief Justice Section 9. Qualifications Commission Section 10. Restrictions Section 11. Administration Section 12. Rule-making Power Section 13. Transition Article VI: Bill of Rights Introduction Section 1. Inherent Rights Section 2. Due Process—Right to Work Due Process in General Substantive Due Process Procedural Due Process—Civil Actions Due Process—Special Applications Due Process—Damages Awards The Right-to-Work Guarantee Due Process—Criminal Proceedings Section 3. Freedom of Religion Section 4. Right of Petition and Peaceable Assembly Section 5. Freedom of Speech—Truth as Defense—Jury Trial Section 6. Jury Trial—Reduced Jury—Three-Fourths Vote

93 93 94 94 96 97 97 98 98 99 101 101 102 102 102 103 105 105 106 106 107 107 109 109 111 111 112 114 114 115 117 118 119 120 121 123 125 126 127

x  n   C o n t e n t s

Section 7. Rights of Accused Section 8. Rights to Bail—Habeas Corpus Section 9. Self-incrimination—Double Jeopardy Section 10. Indictment or Information Section 11. Search and Seizure Section 12. Ex Post Facto Laws—Impairment of Contract Obligations—Privilege or Immunity Section 13. Private Property Not Taken Without Just Compensation—Benefit to Owner—Fee in Highways Section 14. Resident Aliens’ Property Rights Section 15. Imprisonment for Debt Section 16. Military Subordinate to Civil Power—Quartering of Soldiers Section 17. Taxation Without Consent—Uniformity Section 18. Equal Privileges or Immunities Section 19. Free and Equal Elections—Right of Suffrage— Soldier Voting Section 20. Courts Open—Remedy for Injury Section 21. Suspension of Laws Prohibited Section 22. Attainder by Legislature Prohibited Section 23. Excessive Bail or Fines—Cruel Punishments Section 24. Right to Bear Arms Section 25. Treason Section 26. Power Inherent in People—Alteration in Form of Government—Inseparable Part of Union Section 27. Maintenance of Free Government—Fundamental Principles Section 28. Right to Vote by Secret Ballot Article VII: Elections and Rights of Suffrage Section 1. Right to Vote Section 2. Voter Qualification Section 3. Elections Article VIII: Education and School Lands Section 1. Uniform System of Free Public Schools Section 2. Perpetual Trust Fund for Maintenance of Public Schools—Principal Inviolate Section 3. Fund Income Apportioned Among Schools— Apportionment of Fines Section 4. Sale of School Lands—Appraisal Section 5. Terms of Sale of School Lands

128 130 131 133 134 138 139 142 143 144 144 145 148 149 151 151 152 153 154 154 155 155 157 157 158 159 161 161 162 166 167 167

C on t e n t s   n   xi

Section 6. Conduct of Sales of School Lands—Conveyance of Right or Title Section 7. Perpetual Trust Fund from Proceeds of Grants and Gifts Section 8. Appraisal and Sale of Donated Lands—Separate Accounts Section 9. Lease of School Lands Section 10. Trespassers’ Claims to Public Lands Not Recognized— Improvements Not Compensated Section 11. Investment of Permanent Educational Funds Section 12. Disapproval by Governor of Sale, Lease or Investment Section 13. Audit of Losses to Permanent Educational Funds— Permanent Debt—Interest Section 14. Protection and Defense of School Lands Section 15. Taxation to Support School System—Classification of Property Section 16. Public Support of Sectarian Instruction Prohibited Section 17. Interest in Sale of School Equipment Prohibited Section 18. Apportionment of Mineral Leasing Moneys—Amounts Covered Into Permanent Funds Section 19. Mineral Rights Reserved to State—Leases Permitted Section 20. Loan of Nonsectarian Textbooks to All School Children Article IX: Local Government Section 1. Organization of Local Government Section 2. Home Rule Section 3. Intergovernmental Cooperation Section 4. Local Initiatives to Provide for Cooperation and Organization of Local Governmental Units

168 168 170 170 171 171 172 172 172 173 174 176 176 177 177 179 179 180 181 181

Article X: Municipal Corporations [Repealed]

183

Article XI: Revenue and Finance

185

Section 1. Annual Tax Section 2. Classification of Property for Taxation—Income Section 3. Corporate Tax Power of State Not Suspended Section 4. Banks and Bankers Taxed Section 5. Public Property Exempt from Taxation—Exceptions Section 6. Property Exempt from Taxation—Personal Property Section 7. Other Exemption Laws Void Section 8. Object of Tax to Be Stated—Use of Vehicle and Fuel Taxes

185 186 190 190 190 191 193 193

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Section 9. Taxes Paid into Treasury—Appropriations Required for Expenditure Section 10. Special Assessments for Local Improvements—Taxes for Municipal Purposes Section 11. Unauthorized Use of Public Money as Felony Section 12. Annual Statement of Receipts and Expenditures Section 13. Vote Required to Increase Certain Tax Rates or Valuations Section 14. Vote Required to Impose or Increase Taxes Section 15. Inheritance Tax Prohibited Article XII: Public Accounts and Expenditures Section 1. Appropriation and Warrant Required for Payment from Treasury Section 2. Contents of General Appropriation Bill—Separate Appropriation Bills Section 3. Extra Compensation Prohibited—Unauthorized Contracts—Change in Compensation of Officers— Appropriations for Defense of State Section 4. Annual Statement Required Section 5. Health Care Trust Fund Established—Investment— Appropriations Section 6. Education Enhancement Trust Fund Established— Investment—Appropriations Section 7. Balanced Budget Article XIII: Public Indebtedness Section 1. State Enterprises—Legislative Vote Required—Defense of State—Rural Credits—Maximum Indebtedness Section 2. Maximum State Debt—Irrepealable Tax to Repay Section 3. State Debt as in Addition to Territorial Debt Section 4. Debt Limitations for Municipalities and Political Subdivisions Section 5. Irrepealable Tax to Repay Debt of Municipality or Political Subdivision Section 6. Adjustment of Debts and Liabilities of Territory of Dakota Section 7. Obligation of State to Pay Proportion of Territorial Debt Section 8. Refunding Bond Issue Authorized for Territorial Debt Payment Section 9. Road Construction and Coal Supply by State Section 10. State Cement Enterprises Section 11. State Pledge to Fund Cement Enterprises

195 196 197 198 198 198 199 201 201 202 205 206 206 207 207 209 209 211 214 214 217 217 220 220 221 221 221

C on t e n t s   n   xiii

Section 12. State Electric Power Enterprises Section 13. State Pledge to Fund Electric Power Enterprises Section 14. State Coal Mining Enterprises Section 15. State Pledge to Fund Coal Enterprises Section 16. Works of Internal Improvement—State Indebtedness Section 17. Home Loans by State—Debt Limitation Inapplicable Section 18. Compensation of Military and War Relief Personnel— Maximum Indebtedness Section 19. Bonus Paid to Veterans and Deceased Veterans’ Dependents Section 20. Trust Fund Created From Proceeds of State Cement Enterprise Sales—Investment—Annual Appropriation Section 21. Transfers from Trust Fund to General Fund in Support of Education Article XIV: State Institutions Section 1. Charitable and Penal Institutions Section 2. Government of Charitable and Penal Institutions Section 3. Board to Govern State Educational Institutions Section 4. [Repealed] Section 5. Mining and Metallurgy to Be Taught Article XV: Militia Section 1. Composition of Militia Section 2. Legislative Provisions for Militia Section 3. Conformity to Federal Regulations Section 4. Commissions of Officers of Militia Section 5. Militia Privileged from Arrest Section 6. Safekeeping of Military Records and Relics Section 7. Conscientious Objectors Article XVI: Impeachment and Removal from Office Section 1. Power of Impeachment in House—Majority Required Section 2. Trial of Impeachments—Presiding Officer Section 3. Officers Subject to Impeachment—Grounds—Removal from Office—Criminal Prosecution Section 4. Removals of Officers Not Subject to Impeachment Section 5. Suspension of Duties Between Impeachment and Acquittal Section 6. Lieutenant Governor Not to Try Governor Section 7. Service of Copy of Impeachment Before Trial Required Section 8. Impeachment Twice for Same Offense Prohibited

221 222 222 223 223 223 223 224 225 226 227 227 227 228 229 230 231 231 232 232 232 232 232 232 233 233 233 234 234 235 235 235 235

xiv  n   C o n t e n t s

Article XVII: Corporations Section 1. Special Corporation Laws Prohibited— State-Controlled Corporations Excepted Section 2. Invalidation of Charters Without Bona Fide Organization and Business Section 3. Laws for Benefit of Corporation as Conditioned on Compliance with Constitutional Provision Section 4. Corporations Subject to Eminent Domain— Police Power Section 5. Casting of Votes for Directors or Managers Section 6. Place of Business and Authorized Agent Required of Foreign Corporation Section 7. Business to Be Expressed in Charter—Real Estate Restricted Section 8. Indebtedness Increase Section 9. Legislature’s Power to Alter, Revise, or Annul Corporate Charters—Creation, Renewal, or Extension Section 10. Local Consent Required for Grant of Street Railroad Right Section 11. Construction and Maintenance of Telegraph Lines— Controlling Interest in Competing Company Prohibited Section 12. Railroad Corporations Section 13. Movable Property of Railroad Corporation Considered Personalty—Execution and Sale Section 14. Consolidation of Railroad Lines—Forfeiture of Charter for Evasion of Provisions Section 15. Railways and Rail Companies Declared Public Highways and Common Carriers—Regulation of Rates Section 16. Right to Construct and Operate Railroad—Passengers, Tonnage, and Cars Section 17. Rate Discrimination Prevention Section 18. Compensation for Private Property Taken for Public Use—Assessment of Damages Section 19. Corporations Defined Section 20. Monopolies and Trusts Prohibited—Combinations in Restraint of Trade—Legislative Powers Section 21. Corporate or Syndicate Farming Prohibited— Definitions—Restrictions [ruled unconstitutional] Section 22. Restrictions—Application [ruled unconstitutional] Section 23. Loss of Qualification—Requalification or Dissolution [ruled unconstitutional] Section 24. Annual Report—Violations—Action and Enforcement [ruled unconstitutional]

237 237 237 238 238 238 239 239 239 240 240 241 241 241 242 242 243 244 244 244 245 246 246 247 248

C on t e n t s   n   xv

Article XVIII: Banking and Currency Section 1. General Banking Law—Provisions Required Section 2. Bank to Cease Operations within Twenty Years of Organization—Reorganization Section 3. Liability of Banking Corporation Shareholders and Stockholders—Exemption Under Federal Law Article XIX: Congressional and Legislative Apportionment Section 1. Congressional Representatives Elected at Large Section 2. Senatorial and Representative Districts—Apportionment Article XX: Seat of Government Section 1. Temporary Seat of Government—Vote Section 2. Permanent Seat of Government—Vote Section 3. Election Between Two Places with Highest Votes If Majority Vote Not Received Article XXI: Miscellaneous

251 251 251 252 253 253 253 255 255 255 256 257

Section 1. Seal and Coat of Arms Section 2. Salary of Constitutional Officers Section 3. Oath of Office Section 4. Exemptions Section 5. Rights of Married Women Section 6. Drainage of Agricultural Lands Section 7. Irrigation of Agricultural Lands Section 8. Hail Insurance Section 9. Marriage

257 257 258 258 259 260 260 261 261

Article XXII: Compact with the United States

263

Article XXIII: Amendments and Revisions of the Constitution

267

Section 1. Amendments Section 2. Revision Section 3. Ratification

267 268 269

Article XXIV: Prohibition [Repealed]

271

Article XXV: Minority Representation [Rejected]

273

Article XXVI: Schedule and Ordinance

275

Section 1. Continuation of Prior Writs, Actions, Claims, and Bodies Corporate—Validation of Previously Issued Process 275

xvi  n   C o n t e n t s

Section 2. Fines, Forfeitures, and Escheats of Territory to Accrue to State Section 3. Recognizances, Bonds, Obligations, and Undertakings— Criminal Prosecutions and Penal Actions Section 4. Civil and Military Officers Section 5. Election of Constitution and State Officers—Ballots Section 6. Election for Temporary Seat of Government Section 7. Conduct of Election Section 8. Election Returns Section 9. Canvass of Vote—Filing with County Clerks or Auditors Section 10. Certification of Senator or Representative from Multi-County District Section 11. Delivery of Returns to Proper State Officer— Certification to President—Proclamation of Election Result—Lists of Elected Officers—Certificates of Election Section 12. Apportionment of State Legislature—Number of Senators and Representatives Initially Elected Section 13. First Assembly of Legislature—Oaths of Office Section 14. Election of Two United States Senators—Two Representatives Section 15. Adjournment After Election of Senators— Next Meeting Section 16. Legislature and Officers to Exercise Necessary and Authorized Powers Only Pending Admission of State into Union Section 17. Validity of Ordinances and Schedule Section 18. Freedom of Religion—Public Lands—Indian Lands— Uniformity of Taxation—Territorial Debt—Public Schools—Federal Reservations—Irrevocability Section 19. Tenure of Elected Officers Section 20. Time of General Election Section 21. Form of Ballot Section 22. Enrollment of Constitution—Delivery to Secretary of State—Inclusion in State Laws—Copy to President of United States Section 23. Agreement by Joint Commission Concerning Territorial Records, Books, and Archives Article XXVII: State Control of Manufacture and Sale of: Liquor [Repealed]

275 276 276 276 278 278 278 279 279

279 280 280 280 281 281 281 281 282 283 283 284 284 287

C on t e n t s   n   xvii

Article XXVIII: County Investment of Permanent School and Endowment Funds Section 1. School and Governmental Bonds—Farm Loans Article XXIX: State Elevators, Warehouses, Flouring Mills and Packing Houses Section 1. Provision for Elevators and Warehouses—Marketing of Agricultural Products—Flouring Mills and Packing Houses Table of Cases Index About the Author

289 289 291

291 293 305 319

n  S e r i e s F o r e w o r d

In 1776, following their declaration of independence from England, the former colonies began to draft their own constitutions. Their handiwork attracted widespread interest, and draft constitutions circulated up and down the Atlantic seaboard, as constitution-makers sought to benefit from the insights of their counterparts in sister states. In Europe, the new constitutions found a ready audience seeking enlightenment from the American experiments in self-government. Even the delegates to the Constitutional Convention of 1787, despite their reservations about the course of political developments in the states during the decade after independence, found much that was useful in the newly adopted constitutions. And when James Madison, fulfilling a pledge given during the ratification debates, drafted the federal Bill of Rights, he found his model in the famous Declaration of Rights of the Virginia Constitution. By the 1900s, however, few people would have looked to state constitutions for enlightenment. Instead, a familiar litany of complaints was heard whenever state constitutions were mentioned. State constitutions were too long and too detailed, combining basic principles with policy prescriptions and prohibitions that had no place in the fundamental law of a state. By including such provisions, it was argued, state constitutions deprived state governments of the flexibility they needed to respond effectively in changing circumstances. This—among other factors—encouraged political reformers to look to the federal government, which was not plagued by such constitutional constraints, thereby shifting the locus of political initiative away from the states. Meanwhile, civil libertarians concluded that state bills of rights, at least as interpreted by state courts, did not adequately protect rights, and they therefore looked to the federal courts and the federal Bill of Rights for redress. As power and responsibility shifted from the states to Washington, so too did the attention of scholars, the legal community, and the general public. During the early 1970s, however, state constitutions were “rediscovered.” The immediate impetus for this rediscovery was former President Richard Nixon’s appointment of Warren Burger to succeed Earl Warren as Chief Justice of the United States Supreme Court. To civil libertarians, this appointment seemed to signal a decisive shift in the Supreme Court’s jurisprudence, because Burger was expected to lead the Court away from the liberal activism that had characterized the Warren Court. They therefore sought ways to safeguard the gains they had achieved for defendants, racial minorities, and the poor during Warren’s tenure from erosion by the Burger Court. In particular,

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they began to look to state bills of rights to secure the rights of defendants and to support other civil-liberties claims that they advanced in state courts. The “new judicial federalism,” as it came to be called, quite quickly advanced beyond its initial concern to evade the mandates of the Burger Court. Indeed, less than two decades after it originated, it became a nationwide phenomenon. For when judges and scholars turned their attention to state constitutions, they discovered an unsuspected richness. They found not only provisions that paralleled the federal Bill of Rights, but also constitutional guarantees of the right to privacy and of gender equality, for example, that had no analogue in the U.S. Constitution. Careful examination of the text and history of state guarantees revealed important differences between even those provisions that most resembled federal guarantees and their federal counterparts. Looking beyond state declarations of rights, jurists and scholars discovered affirmative constitutional mandates to state governments to address such important policy concerns as education and housing. Taken altogether, these discoveries underlined the importance for the legal community of developing a better understanding of state constitutions. Yet the renewed interest in state constitutions has not been limited to judges and lawyers. State constitutional reformers have renewed their efforts with notable success:  since 1960, ten states have adopted new constitutions and several others have undertaken major constitutional revisions. These changes have usually resulted in more streamlined constitutions and more effective state governments. Also, in recent years political activists on both the left and the right have pursued their goals through state constitutional amendments, often enacted through the initiative process, under which policy proposals can be placed directly on the ballot for voters to endorse or reject. Scholars too have begun to rediscover how state constitutional history can illuminate changes in political thought and practice, providing a basis for theories about the dynamics of political change in America. In this volume, the South Dakota Constitution is featured for the first time in The Oxford Commentaries on the State Constitutions of the United States, a series which reflects the renewed interest in state constitutions and will contribute to our knowledge about them. Because the constitutional tradition of each state is distinctive, the volume begins with the history and development of constitutionalism in South Dakota. It then provides the complete text of the state’s current constitution, with each section accompanied with commentary that explains the provision and traces its origins and its interpretation by the courts and by other governmental bodies. Finally, the book concludes with a table of cases cited in the volume, and a topical index. G. Alan Tarr

n Acknowledgments

The author acknowledges the support and advice of Professor Alan Tarr, without which this book would not have been possible. Professor Tarr is the premier expert on state constitutional law, and the author was most fortunate to have his insightful input. An appreciative acknowledgment goes to Candice Spurlin and Stephannie Bonaiuto for their dedicated, steadfast, and irreplaceable assistance with this book. The author also wishes to acknowledge the support of the Hagemann Center for Legal & Public Policy Research. Some of the material in Part I of this book came from a research project conducted by the Hagemann Center that examined the historical documents and materials surrounding the formation of the 1889 South Dakota Constitution. This research project was made possible by a Chiesman Fund grant. The author is grateful to Dr. William Richardson and the Chiesman Fund for providing such timely and invaluable support. The constitutional history project was only one of the research projects that the Hagemann Center conducted during its existence—projects that strove to explore issues of special relevance and interest to South Dakota. The Center sponsored and completed nine different empirical research projects that provided a view of law not often explored in American legal education. These projects investigated how areas of law actually function and affect the people and interests they are designed to regulate. This is an important and emerging area in the legal academy, and the Hagemann Center was an early participant in the area. Not only were all of the Center’s studies published in legal journals, but those studies received national attention, including an award from Litigation World. The majority of the studies were given special recognition by the Social Science Research Network as frequently cited and downloaded articles. The studies were also discussed and cited in numerous legal blogs and websites, were reprinted in various journals, and were even cited and relied upon in reports by such government agencies as the Federal Communications Commission. At a time of severe financial challenges facing academic presses, the Hagemann Center Press was able to publish books of relevance to South Dakota academicians and legal practitioners that might otherwise not have been published. Finally, the Center also initiated and sponsored the only legal writing monetary-prize contest at the University of South Dakota School of Law. xxi

xxii  n   A c k n o w l e d g m e n t s

The Hagemann Center was named after John Hagemann, the longtime law librarian and professor at the University of South Dakota School of Law. John provided the early guidance of the Center, and will always be affectionately remembered by those who had the privilege of working with him and sharing his friendship.

■

PART one

The History of the South Dakota Constitution

■■ THE DRIVE TO S TATEHOOD

Territorial Status On March 2, 1861, President James Buchanan signed the bill that created the Dakota Territory.1 Within this territory were included the present states of North and South Dakota, Montana, and Wyoming. President Abraham Lincoln then appointed William Jayne of Illinois as the first governor of the territory. The  first territorial legislature convened on March 17, 1862 in Yankton, chosen as the first territorial capital over Sioux Falls, an older town, and Vermilion, the largest town in Dakota.2 The territorial bill had been preceded by a convention held in Sioux Falls on September 18, 1858, during which representatives called for an election of a provisional territorial legislature that would petition Congress to officially designate a Dakota territory. 3 1 This act provided for a temporary government for Dakota Territory. Among other things, it also required that sections 16 and 36 in each township be reserved for public education purposes. A later act passed by the territorial legislature on May 13, 1862 provided for free common schools, established the first school code, and created the common school district. 2 A History of Dakota, 1 South Dakota Historical Collections 50 (1902). This source also gives a detailed history of pre-territorial Dakota. 3 Id. at 48.

3

4 

n

  T h e S ou t h Da k o t a S t a t e C o n s t i t u t ion

After creating the Dakota Territory, the U.S. government gave it little attention, given its preoccupation with the Civil War.4 Congress subsequently created the Idaho Territory, made up of the present states of Montana and Wyoming, leaving the Dakota Territory with the present states of North and South Dakota. In 1864, the present state of Montana became its own separate territory, and Wyoming was moved back into the Dakota Territory. This division held until 1869, when Wyoming was again established as a distinct territory. 5 The last change made to the Dakota Territory occurred in 1882, when a small area was carved away from the territory along the Niobrara River and ceded to Nebraska. The first territorial legislature was called the “pony Congress.”6 Moses Armstrong, who was a member of this first legislature, described it as follows: This pioneer legislature was made up of a strange medley of men. There were among them gentlemen of scholarly attainments and graduates of the highest eastern colleges; also lawyers of brilliant abilities and large experience, educated ministers and doctors, and rough frontiersmen in buckskin suits, beaded moccasins and long hair.7

To provide for local government, the legislature divided the territory into counties and townships that would engage in such functions as building roads, establishing schools, and imposing local taxes.8 Railroads played an important role in Dakota’s territorial development. In addition to serving as a means of transportation, the railroads also became landholders and real estate speculators.9 Reflecting the public’s fear of railroad political influence, the Yankton Press and Dakotan, for instance, claimed that the railroads were drafting the railroad charter laws for the territorial legislature.10 Pressures for Territorial Division and Statehood When there was sufficient population in the territory, the settlers in the Dakota Territory began pursuing statehood.11 After 1868, efforts intensified toward the admission of Dakota, either as a single state or two different states.12 In 1871, Marie Louise Lotze, How South Dakota Became a State (unpublished M.A. thesis, University of South Dakota) (on file with I. D. Weeks Library, University of South Dakota) 1 (1912). 5 Id. 6 Herbert Samuel Schell, South Dakota: Its Beginnings and Growth 115 (1942). 7 Moses Armstrong, The Early Empire Builders of the Great West 52 (1901). 8 Schell, South Dakota,116. 9 Howard Roberts Lamar, Dakota Territory 1861–1869:  A  Study of Frontier Politics 192 (1956). 10 Press and Dakotan, Jan. 23, 1879; 53 S.D. L. Rev. 234–239. 11 Schell, South Dakota, 132. 12 Lotze, How South Dakota Became a State, 1. 4

T h e H i s t or y o f t h e S ou t h Da k o t a C on s t i t u t ion 

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the territorial legislature asked Congress for a division of the territory along the forty-sixth parallel. Additional requests were subsequently made, and during the 1881–1882 legislative session a delegation of one hundred citizens went to Washington, D.C. to petition Congress to divide the territory.13 In many respects, a north-south division of the territory seemed most logical. The much smaller population in northern Dakota lived a great distance from the population centers in the lower Missouri Valley, in what would be South Dakota. The first settlers in southern Dakota were mostly small farmers, whose trade primarily went through Chicago and Sioux City.14 The residents of northern Dakota, however, farmed on a larger scale and specialized in wheat, trading primarily through Minneapolis and St. Paul. No direct transportation link existed between northern and southern Dakota, and for years the residents of one area had to travel through Minneapolis to reach the other area.15 Several petitions for territorial division had been introduced in Congress by the early 1880s.16 An early attempt to achieve statehood occurred in the wake of the Black Hills gold rush, when sufficient numbers of immigrants had arrived in the territory to meet the 60,000 population requirement.17 In 1879, General W. H. H. Beadle, the territorial superintendent of public construction; Dr.  Joseph Ward, the founder of Yankton College; Hugh Campbell, United States Attorney; and Governor William Howard outlined a plan for statehood for southern Dakota.18 They created a nonpartisan organization dedicated to the division of the Dakota Territory and to statehood for the southern half.19 This organization helped call for a delegate statehood convention at Canton in June of 1882.

How South Dakota Became a State, 14 South Dakota Historical Collections 467–68 (1928). 14 Carol Gardner Green, The Struggle of South Dakota to Become a State, 12 South Dakota Historical Collections 505 (1924). 15 Id. 16 Schell, South Dakota, 132. 17 Dakota Herald, Apr. 21, 1877 and May 5, 1877. 18 Barrett Lowe, The Public Activities of General W. H. H. Beadle (unpublished thesis, University of South Dakota) 71–72 (1938). This Thanksgiving dinner was held at the home of Rev. Stewart Sheldon in Yankton and is often seen as the beginning of the statehood movement. Memoirs of Gen. William Henry Harrison Beadle, 3 South Dakota Historical Collections 198–99 (1906). These individuals linked the statehood movement with their plan to save the school lands. George Harrison Durand, Joseph Ward of Dakota 151–57 (1913). These individuals have been called the originators of the statehood movement for South Dakota. Green, Struggle, 507. In 1878, General William Henry Harrison Beadle, a decorated Civil War veteran, had been named territorial superintendent of education. Cleata B. Thorpe, Education in South Dakota: Its First Hundred Years, 36 South Dakota Historical Collections 232 (1972). 19 1 Doane Robinson, South Dakota: Stressing the Unique and Dramatic in South Dakota History 311 (1930). 13

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General Beadle was particularly committed to statehood because he believed that only a state constitution could adequately protect the lands set aside for public education. (Indeed, a central focus of the organization created in 1879 was the preservation of the school lands. 20) Under General Beadle’s leadership, the statehood movement created a citizen’s league with auxiliaries in every county. By 1882, the league added its voice to the demand for the Canton meeting, which in turn would consider the advisability of a constitutional convention. During the Great Dakota Boom of 1878–1887, the population in the entire Dakota territory increased substantially, which in turn further intensified the movement for statehood. At first, statehood seemed readily attainable, given the population of the territory, and it was generally assumed that two states would be formed.21 However, this process would end up taking more time than most statehood advocates anticipated. From 1880 to 1884, a quarter of a million people moved to the Dakota Territory.22 Many of these settled in the James River Valley area. Railroad construction also increased to the point where mapmakers had difficulty keeping up with all the map revisions.23 The railroad played an influential role in creating the State of South Dakota.24 From 1872 to 1880, seven hundred miles of railway were built, with new construction the following four years increasing even more.25 Moreover, all of this construction led to speculation over town sites and the location of county seats.26 Debate over the Territorial Capital As the population in the territory increased, and to respond to the growth of population in the northern and central sections of Dakota, demands arose to move the capital. For nearly twenty-five years, Yankton had greatly influenced the territory, but as the rest of the territory became settled, Yankton’s political position began to erode.27 With the Dakota Boom, the population growth moved northward into the James River Valley, which in turn increased the pressure to move the capital. By 1883, the towns of Mitchell, Huron, Pierre, Aberdeen, and Watertown all

20 Id. 21 Schell, South Dakota, 132–33. 22 Over a Century of Leadership: South Dakota Territorial and State Governors 35 (Lynwood E. Oyos ed., 1987). 23 Id. 24 A History of Dakota, 72. 25 Id. at 73. 26 Over a Century of Leadership, 35. 27 Schell, South Dakota, 126.

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sought to become the new capital. Therefore, when the territorial legislature met in January of 1883, a commission of nine persons was established to find a new capital location.28 This process involved much political infighting and scheming, and the commissioners could not agree on a location in the central or southern part of the territory.29 The eventual selection of Bismarck as the new capital outraged people in the southern counties. 30 When the legislature met for its first session in Bismarck on January 13, 1885, the relocation of the capital was a hotly debated topic. 31 A majority of lawmakers rejected the capital commission’s decision of Bismarck; these lawmakers then blocked any appropriations for the capitol building. The territorial legislature later passed a bill to relocate the capital to Pierre, which in turn was vetoed by Governor Pierce, who argued that the legislature should not be absorbed with continual schemes to move the capital. 32 The failure of the southern counties to agree on a location for the capital had contributed to the selection of Bismarck, but a lot of blame and criticism for the move was put on the ever-controversial Governor Ordway. 33 To secure the transfer of the capital to Bismarck, Governor Ordway had engaged in much political deal-making with potential opponents of the move—deal-making that included establishing a number of educational and other territorial institutions in the hometowns of various legislatures who in turn promised to vote for the transfer. 34 For instance, in connection with trying to obtain support for the capital move, the governor promised financial support for the University of South Dakota at Vermillion, an agricultural college at Brookings, and the School for the Deaf at Sioux Falls. Not only had Governor Ordway made numerous political deals so as to locate the capital at Bismarck, but he had also vetoed a bill calling for a constitutional convention for southern Dakota. But in the southern counties, Ordway was viewed as a corrupt politician. 35 This led the forces for statehood to intensify their activities as an opposition to Governor Ordway, who was perceived as an agent of the railroad interests, which preferred the more lenient territorial railroad laws to those that a state legislature might pass. 36 Indeed,

28 Id. at 127. 29 Id. at 128. 30 Id. 31 Over a Century of Leadership, 44. 32 Schell, South Dakota, 128. 33 Over a Century of Leadership, 38. It was “generally believed” that the transfer of the capital to Bismarck was “done through graft.” Green, Struggle, 514. 34 Over a Century of Leadership, 38. 35 Id. 36 Lois Malvina Drake, The Influence of the Newspapers of Dakota Territory Upon the Administration of Nehemiah Ordway at 45ff. (Master’s thesis, Dept. of Journalism, University of Missouri).

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outside interests often preferred a territorial system of government, since their influence in Washington gave them more power to control appointments to the territorial government. 37 After the move of the capital from Yankton to Bismarck, the anti-Ordway movement accelerated, as did the campaign for separate statehood. The southern counties intensified their efforts to divide the territory and obtain statehood. 38 At a meeting in Huron in June of 1883, the delegates, voted to hold a constitutional convention at Sioux Falls in September. The delegates also expressed their opposition to Ordway’s actions during the previous legislative session, criticizing Ordway for seeking to influence legislators through his various veto threats, political promises, or removal from political office. (These concerns were later incorporated in the constitution when South Dakota became a state in 1889.) Further complicating and intensifying the statehood campaign was the Ordway-Pettigrew feud over control of the Republican Party in Dakota and territorial patronage appointments.39 (Richard Pettigrew was a lawyer and territorial delegate.) The feud grew so intense that Pettigrew filed charges of nonfeasance against Ordway.40 Factors Pushing for Statehood By 1885, the southern part of the territory was pushing for admission into the union as a separate state.41 (After transfer of the territorial capital from Yankton to Bismarck in 1883, the settlers in the northern counties generally opposed division, favoring a single state instead.42) Contributing to the movement for territorial division and statehood was the fact that territorial institutions were being duplicated in the northern and southern areas, with each area having, for instance, a university, an agricultural college, a penitentiary, and an asylum for the insane. Another motivating force for statehood was the perceived inefficiency and corruption of territorial governments.43 There was the perception that, while territorial governments operated on the basis of rewarding partisan workers with political office, state government would operate in a fashion more accountable to the public. Territorial governments were particularly subject to federal patronage, since

37 Lamar, Dakota Territory, 209. 38 Over a Century of Leadership, 38. 39 R. Alton Lee, Principle over Party:  The Farmers’ Alliance and Populism in South Dakota 1880–1900, 44 (2011). 40 Id. at 45. 41 Over a Century of Leadership, 43. 42 Schell, South Dakota, 136. 43 John David Unruh, South Dakota in 1889, 182 (unpublished Ph.D.  thesis, University of Texas, 1939).

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the party in charge of the federal government had great influence over how the Dakota Territory would be governed and who would serve as territorial officials. Another important motive for statehood was the desire to protect the school lands from the kind of corruption seen in the territorial government.44 The school lands consisted of two sections in every township, set aside by the U.S. government for the creation of a public school system, to be permanently funded out of the proceeds of the sale of those lands.45 However, due to rapid settlement and the growing scarcity of good land, many school lands were being occupied illegally by squatters. Trespassers had even begun cutting down timber on those lands.46 Consequently, General Beadle worried that these lands would be lost unless a state constitution imposed a minimum monetary value on those lands, below which the lands could not be sold.47 Beadle had seen other states squander their school lands by selling them at such a low price that insufficient revenue was produced for the schools.48 However, a constitutional provision protecting school lands obviously required statehood as a necessary prerequisite. During the 1880s, land was generally valued at less than $10.00 an acre. Fearing that land speculators might buy the school lands at a nominal price and then resell them later for a higher price, once land values had risen, Beadle argued that the safety of the school lands depended on South Dakota becoming a state, with a state constitution banning the sale of school land for less than $10.00 an acre.49 In this way, Beadle fused the issues of statehood and preservation of school lands. (As a result of General Beadle’s efforts, the $10.00 an acre school lands provision was included in the 1885 constitution.) Also contributing to the push for division and statehood were the demographic differences between the southern and northern parts of Dakota. 50 The southern area was chiefly occupied by homesteaders, who were primarily small farmers. On the other hand, the northern counties were initially settled by large-scale wheat farmers, who purchased vast areas of farm land and who engaged in what was known as bonanza farming. 51 Further dividing the northern and southern halves of the territory was the fact that the main

44 Id. at 180. 45 Doane Robinson, A Brief History of South Dakota, 166 (1905).

Due to the long-established practice of Congress to grant each new state certain sections of each township for school purposes, these lands were unavailable until after statehood. As a result, they lay idle and were thus susceptible to trespass. In early 1884, a group of speculators had secretly tried to buy a large block of the school lands. 3 Memoirs of General William Henry Harrison Beadle, South Dakota historical Collections 245 (1906). 47 Schell, South Dakota, 134. 48 Id. at 135. 49 Robinson, A Brief History of South Dakota, 167; Schell, South Dakota, 135. 50 Robinson, A Brief History of South Dakota, 171–72. 51 Schell, South Dakota, 123. 46

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railroad lines generally ran east and west, thus making it difficult to travel in a north-south direction. 52 The lines of communication essentially ran east and west throughout the Dakota territory, and the Missouri River was the only major north-south line of transportation. 53 Pressures for statehood increased throughout 1885, as farmers took a more active role in Dakota politics. Angered by low commodity prices, high railroad freight rates, and questionable grading of their grain at local elevators, they organized a Farmers’ Alliance in February of 1885. 54 Their political activism increased in 1886 as a severe drought further affected their economic health. By 1887, the Farmers’ Alliance movement played an influential role in territorial politics. 55 Whereas in 1885 only seven members of the territorial legislature were farmers, two years later the number had increased to twenty-five. 56 And by 1889, the Alliance played an even more influential role in the territorial legislature. The Farmers’ Alliance was instrumental in putting the initiative and referendum provision in the South Dakota Constitution, which was the first state constitution to contain such a provision. Indeed, the history of this provision, discussed under Article III below, demonstrates the Dakotan desire for direct democracy and opposition to the corruption of the territorial system. Obstacles to Statehood An obstacle to South Dakota’s pursuit of statehood involved national politics. The national elections of 1882 had produced a Democratic House of Representatives, but by the early 1880s the southern half of Dakota had become strongly Republican. 57 Almost 80 percent of the population identified as Republican. 58 The opposition to South Dakota statehood in Washington, D.C. therefore stemmed largely from the reluctance of a Democratic Congress to admit a state that would send two more Republicans to the U.S. Senate, and consequently the congressional debate on South Dakota statehood was based almost entirely on a partisan basis. 59 However, the opposition to statehood was not usually framed in such blatantly partisan terms, as reflected by arguments by U.S. Senator Vest of 52 Id. at 133. 53 Lamar, Dakota Territory, 190. 54 Over a Century of Leadership, 43. 55 Lee, Principle over Party, 47. 56 Id. at 53. 57 Robinson, A Brief History of South Dakota, 170. 58 A New South Dakota History 115 (2009). 59 Green, Struggle, 519.

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Missouri that the Dakota Territory should not be divided into two different states since there were other existing states covering even larger land areas. Vest and his supporters also argued that the statehood movement itself was entirely political, since statehood would mean more jobs for local politicians.60 As Vest argued: There is not upon this continent a more homogenous tract of territory than the territory of Dakota. It is homogenous in climate, homogenous in soil, homogenous in population. There is no line of mountains, there is no river, there is nothing to divide them except political ambition and personal rivalry.61

In reply, a leading advocate for South Dakota statehood, U.S. Senator Benjamin Harrison of Indiana, argued, “It is a disgraceful thing to say upon the floor of the Senate to 300,000 American citizens living in the territory of Dakota that they should not be admitted to statehood because the prevailing opinion was Republican.”62 In addition to a Democratic Congress, the presidency went to Democrat Grover Cleveland in 1884. Cleveland then appointed Louis Church as the only Democratic governor in the history of the territory. Because Governor Church opposed the division of Dakota Territory into two separate states, favoring the admission of Dakota Territory as a single state, residents in the southern counties tried to impeach him.63 Aside from national politics, another hindrance to statehood involved a dispute over the Yankton County railroad bonds. Yankton County, which had sold bonds to eastern investors in the early 1870s, had failed to pay interest on those bonds.64 In litigation that went to the Supreme Court of the United States, Yankton County was ordered to pay its creditors. However, when the county commissioners refused to do so, with the assistance of the territorial legislature, eastern creditors lobbied Congress to withhold statehood for southern Dakota until after Yankton County had paid its railroad bonds. 65 Apparently the influence of these creditors was strong enough to help derail South Dakota’s statehood pursuit in the early 1880s.66 Senator Hale of Maine argued that “the people of Dakota have not yet shown themselves capable of self-government unrestrained by federal supervision.”67

60 Unruh, South Dakota in 1889, 186. 61 Congressional Record 48th Congress, Second Session XVI, Part I, 144. 62 Id. at 183. 63 A New South Dakota History, 114. 64 Green, Struggle, 511. 65 Id. at 512. 66 Id. at 511–12. 67 Id. at 512.

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Statehood Achieved The obstacles to statehood for South Dakota essentially disappeared when Benjamin Harrison won the presidential election of 1888, beating Grover Cleveland. President Harrison had consistently supported statehood for South Dakota during his time as senator from Indiana. Also, in the same elections of 1888, the Republican Party won control of Congress. The Republican National Convention of 1888 had made the division and admission of North and South Dakota a priority issue. Prior to the election of 1888, the U.S. Senate supported admission of South Dakota as a separate state, but the House had opposed it; however, in 1889, the bill for South Dakota statehood actually originated and passed in the House.68 The Enabling Act, or statehood bill, was signed by President Cleveland on February 22, 1889, shortly before Benjamin Harrison’s inauguration. Under the Enabling Act, the territory was divided into two states at the seventh standard parallel. (The restrictions on the sale of school lands were included in the Enabling Act, providing that no acre of school land in South Dakota or North Dakota could be sold for less than $10.00 an acre.) The Enabling Act also called for a state constitutional convention, which was to be the first constitutional convention in South Dakota authorized by Congress. This constitutional convention met at Sioux Falls on July 4, 1889. Its duty was to amend and resubmit for popular vote the constitution of 1885. The constitution produced by this convention was approved by a popular election held in October. And on November 2, 1889, President Harrison formally proclaimed South Dakota a state. According to historian Howard Lamar, the South Dakota statehood campaign can be seen in part as a reaction against territorial rule by the federal government, reflecting a kind of anti-colonial mentality among the people of South Dakota. For instance, in 1878 General Beadle urged the appointment of a territorial governor who “comes from the states of our origin.”69 The path to South Dakota statehood was remarkably long and arduous. As one historian summed up the process: The story of effort and failure to secure statehood for Dakota, single or twin, is one of long persistency, loyal patience and repeated delay. It follows a main purpose, from 1880 to 1889, through the legislature and through conventions that drew up memorials and drafted two constitutions; through the resolutions of the Republican and Democratic conventions of 1884, demanding in the strongest terms the division of the Territory and the admission of the southern

68 Lotze, How South Dakota Became a State, 4.

W. H. H. Beadle to Secretary of the Interior Schurz, January 26, 1878, Interior Appointment Papers, Dakota, file 135 (1878). 69

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half as a state of the union; through the ballots of more and more voters, and the annual messages of five governors—Howard, Ordway, Pierce, Church and Mellette; through the pleadings of five successive delegates to congress— Bennett, Pettigrew, Raymond, Gifford and Mathews; and through more than thirty congressional bills whose annual failure led Governor Pierce to say, in 1887: “We have seen people fighting to get out of the union amid the protests of the national government; it is a novel sight to see 500,000 people struggling to get into the union without being heeded or recognized.”70 ■■ CONSTITUTIONAL CONVENTIONS

The 1883 Huron Convention A pre-convention meeting was held at Canton on June 21, 1882, where an executive committee was appointed to pursue a division of the territory into two separate states.71 (This meeting was prompted by the statehood organization created in 1879 by, among others, Governor Howard, Joseph Ward, W. H. H. Beadle, and Hugh Campbell.72) Delegates at this Canton meeting, outraged by the excessive spending of the territorial assembly, demanded significant restraints on the taxing and appropriation powers of the future state legislature.73 The Canton executive committee then convinced the territorial legislature to pass a bill providing for a constitutional convention for the southern part of the territory. However, the bill was vetoed by Governor Ordway in 1883. Governor Ordway’s veto reflected the strong opposition in the northern part of the territory to separate statehood for the southern counties.74 The veto prompted an outcry in the south and further strengthened the Citizens League, which then pressed for the Huron convention, to be held on June 19, 1883 for the purpose of determining whether southern Dakota should draft a proposed constitution.75 By bringing together the anti-Ordway and statehood forces, the Ordway veto effectively intensified the statehood movement.76 After having moved the territorial capital to Bismarck and vetoing the constitutional convention bill, Ordway was seen as sabotaging the statehood 70 1 South Dakota Historical Collections, State Historical Society 77 (1902). 71 Robinson, A Brief History of South Dakota, 168. 72 1 Doane Robinson, South Dakota: Stressing the Unique and Dramatic in South Dakota History 311 (1930). 73 Dakota Herald, July 8, 1882; Green, Struggle, 516. 74 New South Dakota History, 115. 75 Robinson, South Dakota: Stressing the Unique and Dramatic, 311. The newspaper stories following this veto were filled with accusations. Green, Struggle, 515. 76 Grant K. Anderson, Politics and Prosperity in Dakota Territory 1883: Lake County as a Case Study, in 14 South Dakota History 2 (Summer 1984), 144.

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movement.77 But after the anti-Ordway forces joined it, the Citizens League would come to play a prominent role in Dakota politics.78 One of the reasons the Citizens League desired statehood was to combat the excesses of the territorial legislature:  “the enormous appropriations made by the last legislature . . . demonstrates the fact that in self-defense of their property and interests, the people must seek a more responsible form of government.” 79 The Huron convention ultimately passed a resolution calling for a constitutional convention in Sioux Falls on September 4, 1883. However, opponents of statehood argued that the proposed Sioux Falls convention could be construed as an assertion of statehood without congressional approval. 80 On the other hand, some statehood advocates like Attorney General Hugh Campbell argued that since southern Dakota met the traditional requirements for statehood, it had a right to establish itself as a state without waiting for Congress to pass an enabling act.81 But this approach was seen as an overly aggressive means of forcing Congress’s hand and throwing off the territorial system, which was increasingly perceived as controlled by Governor Ordway and the railroad lobbies.82 Therefore, to counter any rebellious interpretation of their call for a convention, the Huron delegates chose not to establish a state government without congressional approval. The delegates also chose to table the prohibition issue. They realized that “a Democratic Congress backed by an all-powerful whiskey ring” would probably refuse to admit a state with a “prohibitory constitution.”83 The Huron convention in June of 1883 was attended primarily by delegates from the southern part of the Territory. Although some delegates from the northern half attended the convention, the southerners dominated it. 84 The 1883 Sioux Falls Convention Historian Doane Robinson called 1883 “one of the periods of greatest activity in the history of Dakota.”85 During that year, population in the Dakota Territory 77 Id.

Id. The Citizens League, which had chapters in all of the southern counties, had been formed earlier by a group of prominent Yankton citizens and various statehood leaders and had called for the Canton meeting in June of 1882 to outline the plans for a constitutional convention. Id. at 152. 79 Green, Struggle, 516. 80 Jon Lauck, Prairie Republic: The Political Culture of Dakota Territory 1879– 1889, at 111 (2010). 81 Lamar, Dakota Territory, 222. 82 Id. at 224. 83 Lauck, Prairie Republic, 111. 84 Robert Reedy, The Administration of Nehemiah Ordway, Governor of Dakota Territory 68 (unpublished M.A. Thesis, University of South Dakota 1935). 85 Robinson, History of South Dakota, 313. 78

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increased by 58 percent, and the assessed valuation of property in the Territory grew by 45 percent.86 With the increasing diversification of agriculture, the economy of the Territory prospered, which in turn attracted more immigration.87 And it was amidst this growth and prosperity that the first constitutional convention took place, even though that convention was not called for by Congress. The Sioux Falls convention chose Arthur Mellette, Hugh Campbell, and Bartlett Tripp as delegates to present its proposed constitution to Congress. 88 According to Mellette, “the more there is in a constitution the better for the people,” because the legislative process was fickle. 89 Mellette’s statement reflected the “Dakota Plan,” which limited legislative power as a means of protection for popular prerogatives.90 The Sioux Falls convention also elected Democratic lawyer Bartlett Tripp as president. The selection of Tripp was an effort to convey a bipartisan image to the convention’s resulting constitution.91 The convention met for fifteen days. According to one historian, the “resulting document was traditional for the most part.”92 Nonetheless, both the resulting constitution and the Sioux Falls convention were condemned by Governor Ordway.93 The 1883 constitution did reflect certain political concerns of the times. For instance, the lavish spending of the 1883 territorial legislature had so troubled the delegates that they placed significant restrictions upon future state legislatures’ taxing and appropriations powers.94 Of particular interest to Dakota farmers were issues involving railroads and corporations. The delegates to the 1883 convention included thirty-one farmers, who were outnumbered only by the convention’s forty-two lawyers.95 There were concerns that corporations should pay the same rate of taxes as private individuals, should not be allowed to consolidate, and should receive no special benefits not given to other private parties.96 In its report, the Corporations Committee of the Sioux Falls convention recommended that corporation-owned property be taxed similarly to all other property, that the state be prohibited from owning corporate stock or 86 2 George Smith, South Dakota: Its History and Its People 1329–30 (1905). 87 Anderson, Politics and Prosperity in Dakota Territory, 147. 88 Green, Struggle, 518; Lauck, Prairie Republic, 112. 89 New South Dakota History, 115. 90 Id. 91 Organic Law for Dakota, St. Paul Pioneer Press, Sept. 6, 1883; Lauck, Prairie Republic, 112. 92 Anderson, Politics and Prosperity in Dakota Territory, 157. 93 Id. 94 See Dakota Herald, Sept. 8, 1883; Press and Dakotaian, Sept. 8, 1883. And a convention involving the northern part of Dakota was held to declare opposition to the acts of the Sioux Falls convention. How South Dakota Became a State, 468; Lauck, Prairie Republic, 86. 95 Lauck, Prairie Republic, 113. The Farmers’ Alliance organization in the 1880s had helped to raise the issue of railroads and ensure that farmers’ voices were heard. Id. 96 Dakota Deliberations, St. Paul Pioneer Press, Sept. 9, 1883; 53 SD Law Rev. 239.

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assuming corporate liabilities, and that the state be banned from giving subsidies to corporations.97 An amendment to the report required the legislature to pass laws regulating railroad rates and prohibiting unjust rate discrimination.98 The convention delegates shared the general fear that railroads or other large corporations might exercise undue influence over the legislature. With the goal of preventing corruption, the Committee on the Legislative Section of the Constitution sought to prohibit legislators from trading votes or state officials from “wielding official power in favor of or against any pending measures in the legislature.”99 Furthermore, because of the perceived wasteful spending by the territorial legislature, the delegates also limited public indebtedness, forbidding counties, cities, and towns from incurring debt exceeding 5 percent of assessed property valuations. Constitutional provisions permitting local governments to give special grants and loans were defeated, and spending on public works projects was capped at $500,000.100 The Pioneer Press reported that the 1883 constitution contained the “best safeguards against the undue power of corporations, bribery, executive usurpations and the power of creating debt and excessive taxation,” as well as having borrowed the best provisions of the Illinois, Pennsylvania, and Nebraska constitutions.101 With respect to the proposed bill of rights article, the delegates devoted much debate to an amendment guaranteeing to the people the right to “abolish” their form of government in any manner they thought proper.102 However, in the wake of the Civil War, many delegates considered this language too rebellious. Therefore, the final report issued by the Declaration of Rights Committee replaced the word “abolish” with the phrase “right to alter and reform.”103 Other controversial issues were women’s suffrage and prohibition.104 On the fifth day of the convention, the Committee on Elections recommended limiting women’s suffrage to school elections.105 But in the end, the delegates avoided the issue altogether, deciding to defer the matter to its own separate referendum election. The reasons given for this deferral varied, but many 97  South Dakota:  The Constitutional Convention, St. Paul Pioneer Press, Sept. 13,  1883; Lauck, Prairie Republic, 109. 98 Constitution Complete, St. Paul Pioneer Press, Sept. 19, 1883; Lauck, Prairie Republic, 114. 99 Devising Organic Law, St. Paul Pioneer Press, Sept. 12, 1883; 53 SD Law Rev. 245. 100 Devising A  Constitution, St. Paul Pioneer Press, Sept. 12, 1883; Lauck, Prairie Republic, 115. 101 Constitution Complete, St. Paul Pioneer Press, Sept. 19, 1883; Dakota’s Constitution, St. Paul Pioneer Press, Sept. 20, 1883; Lauck, Prairie Republic, 121. 102 Continuation of the Proceedings of the Constitutional Convention, Yankton Press and Dakotan, Sept. 15, 1883; Lauck, Prairie Republic, 116. 103 21 Journal of the Constitutional Convention, South Dakota Historical Collections 339 (1942); Lauck, Prairie Republic, 101, 116. 104 Id. 105 Lauck, Prairie Republic, 116.

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delegates believed that its inclusion would jeopardize the document’s ratification, as well as its acceptance by Congress.106 Likewise, with respect to prohibition, many delegates did not want to jeopardize the constitution’s ratification by attaching an alcohol ban, which would certainly alienate large blocks of voters, as well as a Democratic Congress.107 As Arthur Mellette stated, “Which is the paramount issue, prohibition or statehood?”108 Delegate John Gamble also argued that Governor Ordway in fact hoped the convention would pass measures, such as prohibition, that would be unpopular and undermining in both the convention and the statehood movement.109 Consequently, the convention defeated by a vote of 64 to 38 the attempt to include a prohibition provision. Convention delegates struggled with the question of whether the public should choose a slate of state government officials at the same time that they voted on ratifying the new constitution. Whereas some statehood advocates favored electing officers regardless of what Congress did, others chose a more cautious course to avoid alienating Congress.110 After days of debate, this latter desire prevailed, and the convention avoided a potential controversy.111 Overall, the 1883 convention was able to side-step the most divisive issues that could have threatened the statehood movement. The delegates elected a Democrat as their president, in a symbolic move to show unity; they postponed issues such as suffrage and prohibition; and they chose not to established a state government without congressional approval.112 The Dakota approach to school lands, promoted by General Beadle and included in the 1883 constitution, was eventually adopted not only by South Dakota but by other western states later admitted under the Omnibus Bill of 1889.113 The 1883 Ratification Campaign The constitution drafted by the 1883 convention was submitted to the voters for ratification in November. The vote was 12,366 in favor and 6,814 opposed. In the northern part of the Dakota Territory, a convention held in Fargo declared opposition to the Sioux Falls convention.114

106 Id. at 117. 107 Devising Organic Law, St. Paul Pioneer Press, Sept. 11, 1883. 108 Interesting Resume of the Work of the Constitution Makers, Yankton Press and Dakotan, Sept. 19, 1883; Lauck, Prairie Republic, 118. 109 Discussion on the Prohibition Subject, Yankton Press and Dakotan, Sept. 18,  1883; Lauck, Prairie Republic, 118. 110 Lauck, Prairie Republic,118. 111 Constitution Complete, St. Paul Pioneer Press, Sept. 19, 1883; Lauck, Prairie Republic, 119. 112 Lauck, Prairie Republic, 120. 113 John Hicks, The Constitution of the Northwest States 23 (1923) 76–80. 114 Lotze, How South Dakota Became a State, 2.

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The constitution of 1883 borrowed heavily from existing state constitutions of the more eastern states, as was the common practice among western states. The committee formed to promote ratification of the 1883 constitution declared that the document had “no claims to originality” and was “a compilation of the best sections of all constitutions of the several states.”115 The committee advertised that the constitutions of other states were available for consultation during the convention debates, that those other constitutions were debated by the delegates, and that the convention had refrained from adopting new and untried provisions.116 Delegate L.  W. Lansing stated that the drafting of the constitution was largely a matter of editing and selection.117 The Yankton Press and Dakotan called the resulting document from the 1883 constitutional convention a “combination of the best elements to be extracted from the constitutions of 37 states with enough in the way of new points to indicate that our people are abreast with the spirit of progressiveness.”118 During the fall ratification campaign, an objection raised by opponents of the constitution related to a provision on railroad taxation.119 The convention had empowered the legislature to tax a railroad’s “gross earnings” instead of its property holdings, which was at that time the common method of taxation. Opponents denounced this gross earnings tax as a sellout, arguing that large corporations could escape such taxes. The opponents also argued that, by not specifically taxing railroad property, the constitution had left taxation decisions to the legislature, which in turn could be influenced or corrupted by railroad lobbyists.120 In response, supporters of the constitution argued that the taxation provision, borrowed from Illinois and Nebraska, was even stronger than the Iowa constitutional provision that had been supported by railroad opponents. The supporters further argued that the taxation provision was harsher to railroads than corresponding provisions in the constitutions of Wisconsin and Minnesota, both of which had been modeled on the recently amended anti-railroad constitutions of Illinois and Pennsylvania. Supporters of the 1883 constitution circulated the railroad taxation provision of every other state constitution, in an attempt to show that the Dakota provision was An Address from the State Executive Committee, Yankton Press and Dakotan, Oct. 25, 1883; Lauck, Prairie Republic, 98. 116 Id.; Lauck, Prairie Republic, 98. 117 Lauck, Prairie Republic, 99. 118 Yankton Press and Dakotan, Sept. 24, 1883; Lauck, Prairie Republic, 99. 119 Lauck, Prairie Republic, 119. 120 The Sioux Falls Railroad Constitution, Dakota Herald, Oct. 6, 1883; Lauck, Prairie Republic, 119. Historian Howard Lamar articulates the position of the opposition: that the Sioux Falls constitution contained only mild regulations on banking, monopolies, and railroads, even though other states were implementing much stronger regulations. Lamar, Dakota Territory, 232. As convention opponents argued, the clause allowing railroads to be taxed upon their gross earnings had been written by an attorney for the Northwestern Railroad. Dakota Herald, Sept. 29, 1883. 115

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strong enough toward railroads. But ultimately, the opponents’ claims may have been designed more to derail the constitution itself than to argue for more specific and effective protections for farmers since opponents of the constitution understood that the best arguments against ratification were those that appealed to agrarian fears of corruption.121 These fears of corruption were intensified by attitudes toward Governor Ordway, who was often seen as using his office to build his own personal political machine through patronage.122 For instance, scandals had linked Ordway to the selling of county commissioner appointments.123 Richard Pettigrew, the congressional delegate for the Dakota Territory in 1880, accused Ordway as being “one of the most corrupt and unprincipled men that has ever disgraced and degraded the public service of this country.”124 The opposition to Ordway was so strong that an 1884 Yankton grand jury indicted Ordway for corruption during his time in office.125 During the ratification campaign, newspaper editors “liberally sprinkled their columns with pro-statehood remarks while at the same time assailing abuses of the Ordway administration.”126 Editor James Stahl urged his readers to vote for the constitution as “the first step toward freedom from the rule of Jumbo governors” and to “vote off the obnoxious yoke” of the territorial status.127 After the November ratification election, statehood advocates traveled to Washington, D.C.  to request Congress for admission of South Dakota as a state. At the same time, another delegation headed by Ordway lobbied against statehood for southern Dakota.128 In Washington, Ordway argued that the majority of Dakotans wanted the territory to be admitted as a single state.129 But at the same time that Ordway was opposing the 1883 constitution and the efforts of the statehood movement, he was also fighting removal petitions filed against him.130 The Republican-controlled U.S. Senate approved a statehood bill, but the Democratic House did not, thus ending any chance for statehood in 1883. An argument used by House Democrats against admitting South Dakota as a state involved the small turnout in the November election. In that ratification

121 Lauck, Prairie Republic, 120. 122 Over a Century of Leadership,36. 123 Anderson, Politics and Prosperity in Dakota Territory, 145. 124 Over a Century of Leadership, 37. 125 Lamar, Dakota Territory, 239. 126 Anderson, Politics and Prosperity in Dakota Territory, 158. 127 Lake County Leader, Oct. 25, 1883 and Nov. 1, 1883. 128 Over a Century of Leadership, 38. 129 Reedy, The Administration of Nehemiah Ordway, 70. 130 Id. at 72.

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vote on the 1883 constitution, more than 30,000 voters stayed home. The total votes cast in the ratification election amounted to only 59.6 percent of the total votes cast in the 1882 territorial delegate election.131 According to statehood opponents, “the constitution did not have sufficient popular appeal, and statehood should not be granted on the basis of so small a vote.”132 The failure to achieve statehood in 1883 intensified the opposition to Governor Ordway and fueled a growing spirit of sectionalism within the territory.133 But Ordway’s perceived obstructionism may have inspired the statehood forces to increase their efforts to convince Congress to grant statehood.134 The 1885 Convention The 1885 territorial legislature passed a law calling for a second constitutional convention in Sioux Falls.135 This convention convened on September 8, 1885. To the convention delegates, the advantages of statehood included giving the public the power to regulate railroads, prevent legislative corruption by corporations, lower taxation, improve the responsiveness of government, contain state and municipal indebtedness, and choose their own capital.136 The 1885 constitutional convention has been called the most important of all the conventions, since the constitution produced by that convention was by and large the one authorized by Congress in 1889.137 With relatively few changes, the 1885 constitution became the state constitution ratified in 1889. Delegates from the southeastern part of the territory, particularly Yankton and Sioux Falls, largely controlled the 1885 convention.138 After 16  days of deliberation and debate, the 112 delegates drafted and adopted a constitution. On November 3, 1885, the constitution was submitted to a popular vote, with 25,226 voting for it and 6,565 voting against it. In addition, a complete set of state officials was elected, including a legislature, even though those officials had no legal status.139 The elected officers all came from the Republican Party. The Democrats declined to nominate anyone, arguing that to do so would only establish a squatter state government with no legal authority from Congress.140

131 Anderson, Politics and Prosperity in Dakota Territory, 162. 132 Lamar, Dakota Territory, 234. 133 Over a Century of Leadership, 39. 134 Id. at 40. 135 Robinson, South Dakota, 312. 136 Green, Struggle, 522, 524. 137 Lotze, How South Dakota Became a State, 3. And the 1885 constitution, in turn, was a revision

and enlargement of the 1883 constitution. Green, Struggle, 524. 138 Over a Century of Leadership, 44. 139 Schell, South Dakota, 137. Huron was chosen the temporary seat of government. 140 Lotze, How South Dakota Became a State, 3.

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Thus, in 1885, South Dakota sought admission as a state without a previous authorizing act by Congress. But this was not a new approach, since other states had earlier gained admission in that manner.141 However, the convention did not take the more radical path of declaring southern Dakota to be a state and then assuming the attributes of a sovereign state within the Union.142 Moreover, as had been outlined at the convention, after the ratification vote, at which the constitution was approved and a state legislature elected, that legislature essentially adjourned, suspending all functions or governance until after admission had been granted by Congress.143 Numerous bills were subsequently introduced in the next session of Congress for the admission of South Dakota as a state. But none of the bills were adopted. Although the U.S. Senate again approved statehood for South Dakota, the Democratically-controlled House of Representatives rejected it, as the Democrats did not want to admit a state that would likely vote Republican.144 The constitution of 1885 was a revision of the 1883 document.145 The most widely referenced sources for the 1885 constitution were again the constitutions of other states.146 Other sources, however, are somewhat unknown, since much of the drafting work occurred in committees, which left little record of their proceedings.147 The convention of 1885 debated at length the question of whether or not a legislator should be disqualified from simultaneously holding any other office.148 The Illinois constitution was cited as authority for disqualification, and the convention finally decided to follow its example. Another issue was that of special legislation. Again, the Illinois constitution was cited and used as a model for this section, which specified the instances in which special laws could not be enacted, leaving to the legislature the discretion to enact special legislation in all other non-prohibited circumstances.149 The debate over the judicial system primarily involved the location of the Supreme Court.150 The standing committee wanted the location left to the discretion of the legislature, so as to allow for flexibility, and for some court sessions to be held at various locations within the state, but the objection was

141 Green, Struggle, 522, 525–26. 142 Lamar, Dakota Territory, 252. 143 Robinson, South Dakota, 313. 144 Over a Century of Leadership, 44. 145 Unruh, South Dakota in 1889, 190. 146 Lotze, How South Dakota Became a State, 9. 147 Id. 148 How South Dakota Became a State, 475. 149 Lotze, How South Dakota Became a State, 10. 150 How South Dakota Became a State, 477.

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that such an arrangement would be costly and inefficient. The final version, however, maintained the legislature’s discretion in this manner.151 The issue of popular sovereignty was debated at the 1885 convention, just as it had been during the 1883 convention. However, still harboring memories of the Civil War, many Union veterans found this debate troubling.152 That is because the debate over the nature of popular sovereignty focused on the same clause in the proposed bill of rights article that had prompted so much debate in 1883. In response to the report of the Committee on the Bill of Rights, Hugh Campbell introduced an amendment, taken from the Pennsylvania Constitution, stating that the people should “have the right at all times to alter, reform or abolish their forms of government.”153 (Hugh Campbell has been called the leader of the most radical of the delegates.154) In opposition to the Campbell amendment, Judge Edgerton argued against confronting Congress in such a rebellious manner: We should appeal to congress for our rights, and not come before it as rebels, with the statement that we have the absolute right to abolish our territorial form of government.155

In further opposition to Campbell’s proposal, it was noted that the clause in the Pennsylvania Constitution had been adopted in 1776, at the peak of the American Revolutionary movement.156 But now, invoking the lessons of the Civil War, opponents to Campbell’s amendment advised against embracing disunion or revolutionary strife.157 These delegates did not want to be seen as coming into the Union as potential rebels. Another argument against the “abolish” language was that no other state had adopted such language since the Civil War, other than keeping that language from a previous constitution.158 Subsequently, the matter went back to committee, where the more subdued language of the “right, by lawful and constitutional methods, to alter or reform their forms of government” was chosen. In the debates over school funding, the Minnesota constitution was consulted, in addition to the Iowa and Indiana constitutions.159 On the subject

151 Lotze, How South Dakota Became a State, 12. 152 Lauck, Prairie Republic, 99. 153 Crisis at Sioux Falls:  A  Disturbing Declaration, St. Paul Pioneer Press, Sept. 19, 1883; Lauck, Prairie Republic, 100. 154 Robinson, South Dakota, 312. 155 Id. 156 Judge Edgerton Argues Against Revolution in the South Dakota Constitutional Convention, St. Paul Pioneer Press, Sept. 20, 1885; Lauck, Prairie Republic, 100. 157 Id. 158 Lotze, How South Dakota Became a State, 13. 159 Id. at 14.

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of taxation, the constitution exempted federal and state property, along with property used for religious purposes or cemeteries.160 The issue of the rate of taxation—the two mill levy—was debated at length during the 1885 convention.161 Some delegates cited the Wisconsin and Tennessee Constitutions in  favor of a levy of one mill, but other delegates used the constitutions of Nevada, Oregon, and California in arguing for larger levies.162 A clause borrowed from the Illinois constitution gave counties, cities, and incorporated towns the power of taxation for their own uses.163 Another debate occurring during the convention of 1885 involved the issue of tax assessment of corporations.164 Whereas in Illinois, Iowa, and Pennsylvania, railroad corporations were assessed on their gross earnings rather than the value of their property, the 1885 convention decided to leave the matter to the legislature to handle, which was how Minnesota had dealt with the issue.165 Perhaps the most potentially divisive issues arising during the 1885 convention were prohibition and women’s suffrage. But as in the 1883 convention, statehood advocates refrained from including a prohibition clause in the constitution, insisting that statehood must come first and calling on temperance advocates to press their cause with the legislature after statehood had been achieved.166 The same approach was taken on the question of women’s suffrage.167 Additional Areas of Convention Debate The Committee on Military Affairs submitted a report to the convention that sparked significant debate.168 Section 2 of the report stated, “[T]‌he said militia organization shall be required to assemble in camp of instruction and drill not less than two or more than four days annually.”169 The convention questioned whether this provision should be included in the constitution, or if such details regarding the militia should be left to the discretion of the legislature.170 Delegates Lowthian, Kellam, and Neill argued that since the legislature handled the enrollment, uniforming, and discipline of the militia, matters 160 Id. 161 How South Dakota Became a State, 479. 162 Lotze, How South Dakota Became a State, 15. 163 Id. 164 Id. at 16. 165 Id. at 16. 166 Lauck, Prairie Republic, 101. 167 Id. 168 1 South Dakota Constitutional Convention, 187 (State Librarian ed. 1885). 169 Id. at 192. 170 Id. at 187.

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regarding how often the militia organizes for drills should also be a legislative matter and not included in the constitution.171 Delegate Taylor raised an additional concern: “There might be an emergency when it would be desirable for the militia to drill more than four days a year, hence I am in favor of leaving it to the discretion of the Legislature.”172 Delegates More and Huntley, on the other hand, argued in support of the committee’s report. They stated that the committee had looked to other states’ constitutions, such as Pennsylvania, finding that the trend in those states was to regulate militias more through the constitution.173 Ultimately, the convention voted down the Committee on Military Affair’s report, and the clause requiring the militia to drill two to four days annually was omitted from the 1885 constitution.174 During the 1885 convention, the Committee on the Bill of Rights proposed an amendment that read, “Private property shall not be taken for public use or damaged, without just compensation, as determined by a jury.”175 With delegates concerned about the railroads’ power to take private property, debate focused on whether condemnation proceedings required a trial by jury and when a landowner should be paid for that taking.176 Delegate Stone worried that a trial by jury could take too long, especially in cases of an epidemic where it is “necessary to take private property for public use immediately” or in “cases of flood or fire where it is necessary to take private property for public use immediately.”177 Delegate Ward, likewise opposing trial by jury, argued that the amendment “stands directly opposed to the interests of the farmer and to the interests of every individual who desires to have public improvements, railroads, highways, and other improvements when they are necessary.”178 Delegate Brookings, on the other hand, argued that the amendment should include not only trial by jury, but also require payment to the landowner even before the government takes possession.179 This argument prevailed, and the delegates expanded the original amendment.180 Thus, at the conclusion of debate, the amendment read, “Private property shall not be taken for public use or damaged without just compensation, before possession is taken, provided the money demanded by the owner of the property shall be deposited as soon

171 Id. at 187–88. 172 Id. at 188. 173 Id. at 191. 174 Id. at 194. 175 Id. at 292. 176 Id. at 294. 177 Id. 178 Id. at 299. 179 Id. at 332–33. 180 Id. at 333.

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as the jury is drawn.”181 The convention subsequently adopted this language, and the expanded amendment passed on a vote of thirty-nine to thirty-two.182 Although women were not present as delegates at the convention of 1885, the issue of women’s suffrage involved considerable convention debate. Some delegates believed that the convention should ignore the issue, leaving it up to the legislature to later act upon women’s right to vote.183 Others expressed concern that giving women the right to vote could handicap the statehood movement because the U.S. Congress would be resistant to it.184 Other delegates argued that the people should be given the opportunity to vote upon the question of women’s suffrage.185 As Delegate Gault argued: Let the people vote upon this question and say whether they think it is best or not; and if it is the voice of the people that she shall be denied the privilege then we will abide by that; but I hope that this Convention will not say that the people shall not have the privilege of expressing themselves upon this question.186

Delegate Dow argued forcefully in favor of women’s right to vote:187 If there is any question that should come before this Convention, it is that of the question of suffrage. The rights of the people is something that we have the right to fight for . . . I would like to have sufficient of this Convention state about what they believe to be right, sufficient to incorporate in the Constitution the distinction between male and female upon the question of suffrage. I  know, Mr.  Chairman, that this question is calculated to create a good deal of feeling and desire not to act upon, on the ground of expediency, but we have seen the result acting upon expediency years ago, and, and now, I  believe in this Convention this morning, that here is not a single member present, who does not believe that it is right, that it is just, and that all the principles of righteousness and justice demand it; that we ought to extend to women the same rights of suffrage that we enjoy ourselves.188

Delegate Dow believed giving women the right to vote would be advantageous to the new state by giving it an increased strength in numbers of voters. Delegate Dow argued that “the greater the aggregate the safer we are; and today we are safer it we can advance the number of our votes.”189 Delegate McCallum 181 Id. 182 Id. 183 Id. 184 Id. at 406. 185 Id. at 399. 186 Id. 187 Id. at 398. 188 Id. at 398. 189 Id. at 404.

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also argued in favor of women’s suffrage, receiving applause for pronouncing, “I had rather meet this and fight it on the floor of this Convention and fight it this fall than to fold my hands and quietly submit until ‘Uncle Sam’ admits us, and then fight for it.”190 Ultimately, concerns for the success of the statehood cause in Congress prevailed, and the 1885 convention declined to include a women’s suffrage provision.191 On the matter of school lands, the Committee on Education and School Lands submitted a report that set a minimum price of school lands at $10.00 an acre.192 Delegate Ward argued that a lot of land was worth far more than $10.00 an acre: “There are already enough lands that are worth nearer twenty-five dollars per acre to keep busy all the machinery that can be put into operation for selling the land.”193 In response to this argument, Delegate Owen moved to set the minimum price of school lands at $15.00 an acre.194 But in rebuttal, Delegate Campbell argued in support of the $10.00 price: This is the minimum; it is not a price below which you can go. Now, you don’t want to put that price so high that half of these lands, away out on the western half, and away on the reservation, will be kept out of the market. You will never see those, in your life, when they will sell at fifteen dollars. You want to put the minimum price at such figure as you think the lowest and poorest lands can be sold for.195

Speaking from personal experience, Delegate Gehon described his attempts to sell a portion of land that was adjacent to school land.196 He had tried unsuccessfully for two years to sell it for $16.00 an acre.197 For this reason, he argued $10.00 an acre was a high enough minimum price.198 The majority of delegates agreed, and the Convention set the minimum price at $10.00 an acre.199 The 1889 Convention In the national elections of 1888, the Republican Party achieved a clean sweep of the political branches. Benjamin Harrison won the White House, and the Republicans took control of both houses of Congress. In addition, the national

190 Id. at 407. 191 Id. at 423. 192 Id. at 499–502. 193 Id. at 502. 194 Id. at 502. 195 Id. at 503–04. 196 Id. 197 Id. 198 Id. 199 Id. at 506.

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Republican Party platform of 1888 had demanded that South Dakota be immediately admitted as a new state.200 The Omnibus Bill providing for statehood was passed by Congress and signed by President Grover Cleveland on February 22, 1889. This bill called for a third constitutional convention so as to conform the 1885 constitution to federal law. (Therefore, the 1889 convention was the first constitutional convention legally recognized by Congress.) The option Congress gave to the proposed state was to either ratify the constitution of 1885 with certain required amendments or adopt an entirely new constitution. 201 The former option was selected and seventy-five delegates were chosen to attend a convention in Sioux Falls and prepare a constitution called for by the Omnibus Bill.202 When delegates once again assembled in Germania Hall in Sioux Falls in 1889, they were charged with updating the constitution of 1885 so as to make it comply with the Enabling Act, dividing the assets and debts of the territory, and making arrangements for the ratification of the constitution.203 They also avoided any changes in the 1885 constitution that might conflict with the requirements of the Omnibus Bill.204 According to the Daily Argus-Leader, “the delegates to the convention were elected not to make, but to patch a constitution.”205 Among the seventy-five delegates to the convention, twenty-four were farmers, and twenty were lawyers.206 The reference sources and materials used in the drafting of South Dakota’s constitution are difficult to identify, since the 1889 constitution was the result of three different conventions.207 Nonetheless, the state constitutions most often cited or used as examples were those of Illinois, Pennsylvania, New York, Wisconsin, Minnesota, and California.208 The clause in the South Dakota Constitution dealing with special laws, for instance, was taken from the Minnesota Constitution; the article concerning a legislator proposing a bill in which he has a private interest came from the Pennsylvania Constitution; and the article addressing condemnation of property was modeled after the Iowa Constitution.209 As in previous constitutions, the 1889 constitution’s limits

200 Over a Century of Leadership, 48. 201 Robinson, South Dakota, 315. 202 How South Dakota Became a State, 471. 203 Robinson, South Dakota, 315. 204 Lauck, Prairie Republic, 127. 205 Daily Argus-Leader, July 11, 1889, p. 1. 206 Lauck, Prairie Republic, 131.

How South Dakota Became a State, 474. Moreover, much of the work of the conventions was done in committees, which left no record of their proceedings. 208 Id. 209 Id. at 474–75. 207

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on the legislature’s spending powers were the result of the territorial assembly having spent so uncontrollably.210 By the 1889 convention, the Farmers’ Alliance of Dakota Territory was playing an increasingly important political role. 211 With declining crop prices, and having fallen deep in debt, farmers turned to the Dakota Alliance. In January of 1889, for instance, the Alliance controlled the lower house of the territorial legislature. In that legislative session, the Alliance focused on corporate tax laws and railroad regulation. The purpose of the 1889 convention was to reconcile the constitution of 1885 to the conditions set forth in the Enabling Act. Such conditions included the disclaiming of any title to Indian land and guarantees that land owned by nonresidents not be taxed at a higher rate than lands owned by residents and that no taxes would be imposed on property of the United States government.212 Additional conditions included guarantees that territorial debts would be assumed by the state, that all contracts and rights would continue under the new state government, that all territorial judicial processes would remain valid, and that the new state would establish a public school system open to all children and free from sectarian control.213 Under the Enabling Act, Sections 16 and 36 in every township were to be set aside for the support of public schools, and five thousand acres were to be reserved for state institutions.214 No school or public land was to be sold for less than $10.00 an acre.215 The 1889 constitution also barred state funding for sectarian schools. Some commentators have interpreted this ban as reflecting an anti-Catholic bias. Senator Henry Blair of New Hampshire, for instance, saw the ban on public aid to sectarian schools as completing the unfinished work of the failed Blaine Amendment and as reflecting the “very essence” of the Blaine Amendment.216 Blair had previously sought federal legislation similar to the Blaine Amendment, and when his efforts failed he blamed Jesuit priests, deeming them a “Black Legion” and an “enemy of this country” whose goal was “destroying the public school system.”217

210 Hicks, The Constitution of the Northwest States, 121. 211 Over a Century of Leadership, 48.

Few changes were made to the 1885 constitution, other than those needed to conform the document to the provisions of the Enabling Act. South Dakota Became a State, 473. 213 Lotze, How South Dakota Became a State, 6. 214 This grant of lands under the Enabling Act was extensive. The school lands amounted to approximately 3  million acres, or 4  percent of all land within the state. 3 George Kingsbury, History of Dakota Territory 812, 814 (1915). 215 Lotze, How South Dakota Became a State, 7. 216 Tenth Days’ Proceedings of the Constitutional Convention, Yankton Press and Dakotan, Sept. 17, 1883; Lauck, Prairie Republic, 78. 217 38 South Dakota History, at 32. 212

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In the mid-1870s, a political campaign arose opposing public funds from going to sectarian schools. Speaker of the House James Blaine took a leadership role in this campaign by promoting an amendment to the U.S. Constitution banning public aid to religious schools. 218 This became a hotly debated political issue, since it ignited anti-Catholic attitudes.219 Blaine exploited this anti-Catholic feeling, but when Congress failed to adopt the Blaine Amendment by a slim margin in 1875, its supporters turned to the individual states, many of which eventually enacted similar legislation or constitutional provisions.220 (Such anti-sectarian school funding provisions likewise found their way into the South Dakota Constitution.) Support for Blaine, who hoped his anti-Catholic campaign would get him elected to the presidency was somewhat strong in Dakota Territory. George W. Kingsbury, an early political leader and territorial newspaperman, believed Blaine to be “a great leader and an able statesman,” and the 1884 Dakota convention of the territory’s dominant Republican Party endorsed Blaine with “no dissension.”221 Furthermore, the two territorial delegates chosen to attend the national Republican convention were directed to vote for Blaine.222 At the conclusion of the 1889 convention, the constitution was put to a ratification vote in a general election on October 1, 1889. At that general election, voters approved the constitution, and the state of South Dakota became eligible for admission into the Union. On November 2, 1889, President Benjamin Harrison signed a proclamation making South Dakota the 40th state in the Union. In his proclamation of statehood, South Dakota’s first governor, Arthur Mellette, urged that “the people assemble at their respective places of worship and instruction, and devote an evening to holy praise and prayer and patriotic song and story.”223 This proclamation, Mellette’s first official act as governor, was a Thanksgiving Day proclamation made on November 11, 1889. As Governor Mellette later said of the founding principles of South Dakota statehood: While civil government was instituted to protect the weak against the strong, the shiftless and simple-minded from the avaricious and cunning, it was not intended to defeat God’s first law, that man should live to labor. The province of legislation is not to foster idleness, but to stimulate effort; not to destroy ambition, but to elevate and direct it; to preserve with jealousy the social institutions

218 Jon Lauck, Anti-Catholicism in Early Dakota, 38 South Dakota History 22 (2008). 219 Id. 220 Id. 221 Id.; 2 Kingsbury, History of Dakota Territory 1354. 222 38 South Dakota History, No. 1 (Spring 2008): 22–23. 223 Over a Century of Leadership, 57.

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which ennoble human nature; to foster religion, which furnishes divine ideals, and to promote a common education, which is the preserve of all.224

And as the historian Doane Robinson described the state’s constitution: It was predicated upon the theory that the functions of a State are strictly limited to four activities: The preservation of the peace; the administration of justice; the promotion of education; and the care of the afflicted. So strictly was it limited that the State, as such, could not build a mile of highway or make an internal improvement of any sort. The limitations upon legislation were exacting. Laws of merely local application were prohibited. No aid could be granted to any person or corporation; no obligation to the state might be compromised. It was the first American Constitution to largely legislate within itself. Rigorous economy was enjoyed by it. Salaries were fixed at the minimum. The limitations upon taxation for State purposes made it exceeding difficult to finance the necessary operations of the young state. This constitution, with its remarkable limitations, commended itself to the conservative statesmanship of the nation and we were admitted under it thirty-three years ago today, (November 2, 1889).225

The convention of 1889 had also adopted two proposed amendments to the constitution, which were to be submitted to the people by a separate vote. 226 The first amendment concerned prohibition; it stated that no person or corporation should manufacture or sell any intoxicating liquor.227 The other amendment involved minority representation. This amendment provided that the House of Representatives should consist of three times the number of members in the Senate, with three representatives to be elected in each senatorial district.228 Each voter could cast all three votes for one candidate, or could distribute his votes among the different candidates. These amendments were submitted separately for an independent vote during the same election in which the people voted on ratification of the constitution. In this election, the constitution was approved by a vote of 70,131 to 3,267, the amendment on prohibition was accepted, and the amendment on minority representation was defeated.

224 A History of Dakota, 79–80. 225 The End of a Generation appearing in South Dakota Historical Collection at 116 (an address delivered by Doane Robinson on November 2, 1922, at a celebration of the 33rd anniversary of South Dakota’s admission as a state). 226 How South Dakota Became a State, 482. 227 Lotze, How South Dakota Became a State, 18. 228 How South Dakota Became a State, 482.

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Topics of Significant Debate at the 1889 Convention With respect to the protection of school lands, the Committee on Education and School Lands submitted a report to the convention stating that some of the school lands were being improperly appropriated under the claim that they were mineral or coal lands. 229 The committee proposed a request to the President of the United States to direct that all proceedings relating to the entry of or issuance of patent to alleged mineral or coal lands situated within the agricultural districts of South Dakota be postponed and stayed until the State is by proclamation of the President declared admitted into the Union of States and until the Legislature of said State shall have the opportunity to appoint the requisite agents therefore and provide by law for contesting the right to make such entries and obtain from the government patents to such lands.230

After debating whether it should send this request to the President, the convention adopted it and sent it on to the President. 231 On the matter of judicial circuits, the Judiciary Committee’s report, proposing the apportionment of the judicial circuits of the state, sparked more debate than any other single issue, with the debate including accusations about corruption in the Judiciary Committee.232 Delegate Couchman noted the geographic expanse of some counties, requiring travel of over one hundred miles down a wagon road,233 arguing that counties should be grouped together into circuits.234 Delegate Dickinson echoed Delegate Couchman’s concerns regarding inconvenience and travel time, and he accused the committee members of favoring the interests of their own constituencies.235 He also remarked that many counties were dissatisfied with the proposed circuits.236 Delegate Van Buskirk, a member of the Judiciary Committee, noted that as of 1883 the circuit judges hardly traveled and seemed to be serving only the larger towns.237 Additionally, Delegate Hole stated that the committee, in drawing up the proposed districts, had studied railroad facilities and tried to give people convenient locations in which to conduct legal business. 238 And

229 2 South Dakota Constitutional Convention 88 (Doane Robinson ed. 1889). 230 Id. 231 Id. at 98. 232 Id. at 194. 233 Id. at 195–96. 234 Id. at 196–97. 235 Id. at 199–201. 236 Id. at 199–200. 237 Id. at 202–03. 238 Id. at 214–15.

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although debate continued about small towns having to travel to large cities, and about the larger cities monopolizing the time of the court, 239 the convention finally adopted the Judiciary Committee’s recommended apportionment of judicial circuits by a vote of 42 to 19.240 Recognizing that one of the most important issues in American politics involved the sanctity of the ballot box, the Committee on Schedule and Ordinance recommended the creation of a uniform ballot known as the “Australian Ballot.”241 The committee’s report provided that a person would not be permitted to vote on any ballot except those tendered by the election judges.242 The report also allowed a voter to “go apart by yourself in an apartment in the polling place and there vote as you choose.”243 The convention delegates extensively debated the rules governing ballot provisions, the depositing of ballots, and whether the convention had the power to reform the voting system that the territory was already using.244 Opponents to the report argued that the convention had no power to change the general election laws.245 Proponents argued that the objective of the ballot provisions was to remedy identifiable instances of past election fraud, such as voter intimidation and tampering with ballots. 246 Delegates also argued that if Congress did not intend to give the convention full power to govern elections, it would have expressly stated so.247 Ultimately, the convention adopted the report of the Committee on Schedule and Ordinance, thus creating a uniform ballot and voting system.248 On the issue of a debt limit for the state, the convention recognized that: We cannot as a State go on in the lavish way in which the affairs of the Territory have been conducted . . . It seems to me, in entering upon statehood, that if there is any virtue in the Constitution it is in its power to limit the Legislature.249

Regarding the state’s debt limit, the Committee on State, County and Municipal Indebtedness recommended a debt limit of $500,000.250 The convention debate then focused on whether the constitution should provide for such a high debt limit. Delegate Edgerton of Davis proposed to decrease the 239 Id. at 202, 204, 205–06. 240 Id. at 242. 241 Id. at 305. 242 Id. at 319, 327–30. 243 Id. at 357. 244 Id. at 307, 314. 245 Id. at 316, 321. 246 Id. at 325–26, 331–32. 247 Id. at 334–35. 248 Id. at 371. 249 Id. at 508 (quoting Mr. Williamson). 250 Id. at 496.

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debt limit from $500,000 to $100,000.251 He argued that a $100,000 limit would be sufficient to meet all pressing needs, and that the new state could not continue in the lavish spending habits of the territorial government. 252 Supporters of Mr. Edgerton’s amendment argued that the powers of the legislature had to be limited, and that a lower debt limit was one way to limit that power.253 Ultimately, Delegate Edgerton’s amendment prevailed and debt limit was set at $100,000.254 Statehood Achieved Even though South Dakota was considered a western territory, its constitution was strongly influenced by the eastern states, since a large majority of the constitutional convention delegates had previously resided in and been educated in eastern states.255 And despite all the political conflicts throughout the statehood movement, there was much consensus within the new state on most of the major economic issues of the time, particularly railroad regulation.256 On this issue, the South Dakota constitution mirrored the Granger constitutions of other Midwestern states and particularly those of Illinois and Pennsylvania, which had already adopted rigorous railroad regulations.257 The South Dakota constitution also reflected the influence of the Farmers’ Alliance, which described the 1889 constitution as a “farmer’s document,” insofar as it sought to achieve a decentralized agrarian economy and limits on the corrupting influences on government.258 Historians disagree over the nature and populist orientation of the South Dakota Constitution. Alton Lee, for instance, argues that the constitution of 1883, which with some changes would end up as the state’s constitution, was largely the work of bankers, lawyers and land speculators, resulting in little regulations on banks, monopolies, and railroads.259 To Lee, farmers had been virtually shut out of the 1883 constitutional process.260 251 Id. at 497. 252 Id. at 498, 508. 253 Id. at 508. 254 Id. at 527.

Lotze, How South Dakota Became a State, 8. And about a third of the white population was foreign-born. History of Dakota, 78. 256 Lauck, Prairie Republic, 129. Moreover, six members of the 1889 Convention had been members of the 1883 Convention, and eleven had been members of the 1885 Convention. How South Dakota Became a State, 473. 257 Lauck, Prairie Republic, 130. 258 Id. at 131, 133. 259 R. Alton Lee, Principle Over Party: The Farmers’ Alliance and Populism in South Dakota 1880– 1900, at 46 (2011). 260 Id. at 47. 255

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Contrary to the historical interpretations of Alton Lee and Howard Lamar, who in his 1956 book Dakota Territory argues that the statehood movement was controlled by railroad and big corporate interests, historian Jon Lauck writes that the South Dakota statehood movement and constitutional process resulted from a popular democratic movement, not an attempt by oligarchical forces to oppress the small farmer.261 According to Lauck, the constitutional convention was not a reflection of the railroad interests, particularly since the constitution placed a number of strict regulatory provisions on railroads. Contrary to the history of conflict and division as proposed by Lee and Lamar, Lauck argues that the history leading up to the South Dakota Constitution was one of wide consensus and unity, characterized by the participatory and democratic nature of the constitutional process.262 Lauck also argues that farmers were not only not excluded from the constitutional convention, but in fact exerted a significant influence on the outcome of the 1889 convention. 263 After South Dakota was admitted into the Union, the political complexion of the state continued to tilt strongly Republican. Of the 169 members in the first legislature, only 17 were affiliated with the Democratic Party, while 11 claimed to be independent. The rest were Republicans. (The Senate had 87 Republicans, 4 Democrats, and 4 Independents, while the House had 104 Republicans, 13 Democrats, and 7 Independents.264) ■■ THE 1972 CONSTITUTIONAL REVISION

In 1969, the South Dakota legislature created the Constitutional Revision Commission, whose stated purpose was to “enter into a comprehensive study of the constitution of the State of South Dakota to determine ways and means to improve and simplify the constitution.” The commission had thirteen members, and after a lengthy examination of the South Dakota Constitution, it submitted its proposals to the 1972 legislature. In submitting its proposed amendments to the South Dakota Constitution, the commission had decided that rather than calling a constitutional convention and attempting to revise the constitution in one attempt, as had been unsuccessfully attempted in North Dakota, the commission would propose specific amendments to be adopted in a step-by-step manner.265 Several concerns inspired the formation and work of the Commission, including the concern that the South Dakota Constitution contained excessive detail, 261 Lauck, Prairie Republic,123. 262 Id. at 130. 263 Id. at 131. 264 Rapid City Daily Journal, Oct. 13, 1889. 265 Constitutional Revision in South Dakota: Ballot Issues in 1972, Public Affairs (W. O. Farber ed., 1972). The nature of amendments to the South Dakota Constitution was aptly described by William Cape in Constitutional Revision in South Dakota:

The amendments to the South Dakota Constitution are incorporated directly into the respective articles of the document. Thereby the section or article specifically amended, as the case

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confusing terminology, inconsistent and contradictory provisions, and obsolete subject matter.266 Moreover, as of 1970, the South Dakota Constitution was the thirteenth longest of the state constitutions.267 As one scholar and commentator observed about the shortcomings of the South Dakota Constitution: Without endeavoring to particularize each of the following, any brief compilation of some of the major criticisms of this state’s constitution would probably have to include the following: 1. Various constitutional provisions are excessively detailed, obscure, dispersed, or obsolete. 2. The state’s executive branch is diffused among a relatively large number of elective officials, boards, and commissions. The terms of office in many instances are too short, and the governor’s power to name appointments is inadequate. 3. Regular legislative sessions are constitutionally restricted to 45 days in odd-numbered years and to 30 days in even-numbered years—a questionable limitation on legislative power. 4. The judiciary is administratively over-decentralized, and the elective judicial terms are quite short. 5. State and local government is weakened by long ballots for non-policy making positions, by constitutionally imposed fiscal restrictions, by unrealistically low debt limitations, and by insufficient provisions for the consolidation of governmental functions performed by counties, municipalities, and special districts. 6. Constitutional provisions are lacking for a legislative post audit, for the joint election of the governor and lieutenant governor, for systematic executive reorganization, for the periodic submission to the electorate of the may be, is deleted. The insertion of the amendments in this manner differs significantly from the arrangement followed with the Federal Constitution. In the latter case, the amendments are numbered and added at the end of the Constitution. Footnotes, for convenience purposes, are included on the pages to cross reference the amendments to the pertinent sections. On the other hand, when amendments are inserted, reference must be made to earlier copies of the document to determine the wording of the sections amended. In some instances a section may have been amended two or more times. Although it may be relatively clear to add twenty-two amendments to the Federal Constitution, it would be most confusing to add sixty-four or more rather long amendments at the end of the South Dakota document. See 2 William H. Cape, Constitutional Revision in South Dakota (1957). 266 David Fellman, What Is a Good State Constitution, in Contemporary Approaches to State Constitutional Revision:  Lectures 4 (Alan Clem ed., Vermillion Government Research Bureau, University of South Dakota, 1970). An example of obsolete subject matter appeared in Article XXVI, dealing with the separation of South Dakota from North Dakota at the time of statehood. These criticisms had been made nearly two decades earlier. See Cape, Constitutional Revision in South Dakota, 6–11. 267 Fellman, What Is a Good State Constitution, 4.

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question whether a constitutional convention should be called or for a formal vote by the electorate on a newly framed constitution, for more explicit safeguards of an accused in criminal trials or before legislative or administrative tribunals, for the prevention of racial discrimination, and for the greater protection and management of natural resources. No one acquainted with contemporary realities of American state and local government will see anything very surprising in this summary indictment of South Dakota’s Constitution. Whether or not misery loves company, it is a widely acknowledged fact that these types of constitutional infirmities are found in the overwhelming majority of the states and that they represent major factors that helped to impede the forward movement of American federalism. What is often forgotten is that nearly eighty percent of our state constitutions were written in the eighteenth and nineteenth centuries, that they addressed  themselves to predominantly rural and thinly populated communities, and that they reflected a political philosophy deeply suspicious and fearful of government in general, and of executive power in particular. “Unlike the ten commandments in brevity, directness, or authorship,” American state constitutions “were framed with the explicit purpose of further restricting the power of the elected officials—elected particularly, after the Jacksonian era, for short terms and for clearly limited duties.” Hemmed in by highly detailed and restrictive constitutions written for a very different America, our state and local governments found themselves totally unprepared for the demands of the twentieth century. Industrialization and urbanization, world war conditions and economic crises, population explosion and revolutionary changes in transportation and communication—these as well as other more recent developments combined to constitute challenges that greatly exceeded the fiscal and governmental resources available at the state level. Frustrated and newly activated electorates increasingly turned to Washington for services and programs that governments nearer to them were either unable or unwilling to provide. Were this trend to continue unabatedly, little, indeed, would be left of the federal model. Fortunately for those who still attribute significant value to a revitalized state and local political system—and this includes diverse forces and spokesmen across the ideological spectrum—powerful voices and influential power groups throughout the nation have begun to battle for constitutional and governmental reforms which might yet bring the states into a more effective partnership with the federal government. Hopefully it may not prove too late to assist in the self-renewal of our fifty laboratories in self-government.268

G.  Theodore Mitau, Partial Constitutional Revision Through Piecemeal and Comprehensive Amendments, in Contemporary Approaches to State Constitutional Revision: L ectures 50–51 (Alan Clem ed., Vermillion Government Research Bureau, University of South Dakota, 1970). 268

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Further motivating the work of the commission was also the conclusion that the original constitution was an overly restrictive document that prevented an efficient and responsive state government.269 The bi-partisan commission recommended that four amendments be made to the constitution, completely replacing the existing executive, judicial, local government, and amendments and revisions articles of the existing state constitution. These amendments were approved by an overwhelming majority of the state legislature in 1972 and subsequently placed on the ballot for the November election. The work of the South Dakota Constitutional Revision Commission occurred during a time in which significant constitutional revisions were occurring in many states.270 For instance, all but two states had experienced some constitutional revision activity in the ten years preceding 1972. 271 However, while some states had attempted to revise their entire constitutions at a single state convention and then have the public ratify those revisions during a single election, the South Dakota commission chose to revise a few specific articles and then to put only those revisions to a general election. The first of the four replacement articles proposed by the commission was a new article on the executive branch. This article, which was subsequently approved by the voters at the November election, along with the other three amendments offered, limited to twenty-five the number of departments in the executive branch of state government. At the time, there were 165 departments, boards, and agencies in the executive branch.272 The goal and purpose of this change was to improve the administrative efficiency of the executive branch. According to the commission, the executive branch had become too complex for the public to understand.273 Similar reforms had been enacted by other states; for instance, the commission found that eleven states had limited the number of their departments, with the limits ranging from fourteen to twenty-five.274 The revised article on the executive branch also provided that the governor and lieutenant governor be elected as a team. This would allow the governor to delegate more functions to the lieutenant governor. 275 Other changes made Constitutional Revision in South Dakota. Also motivating the Commission was the increasing occurrences of attempts to revise or amend the Constitution. By 1970, over 150 constitutional amendments had been proposed by the South Dakota legislature. Contemporary Approaches to State Constitutional Revision (Alan Clem ed., Govt. Research Bureau, Report #58, 1970). The passage rate of those proposed amendments since 1948 has been 51 percent. Id. at 56. 270 Contemporary Approaches, 52–54 271 Claudia Lewis, J.  P. Hendrickson & Gordon Rose, Constitutional Change: Questions and Answers, Document FS 566 (1972). 272 51 Public Affairs 3. 273 Id. 274 Id. 275 Id. 269

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in the proposed article included a four-year term of office for the governor and lieutenant governor, and the granting of authority to the governor to reorganize the executive branch by executive order. The second proposed article offered by the commission was a replacement of the existing article on the judiciary. The primary reason for revising the judicial article was to streamline South Dakota’s court system and provide for a more efficient judiciary. The new article would create a unified court system, over which the chief justice would be the administrative head.276 This unified system would consist of a supreme court, the circuit courts of general jurisdiction, and any courts of limited jurisdiction established by the legislature. Within this unified system, the chief justice could temporarily assign circuit judges wherever they were needed around the state. The proposed article would also allow the supreme court to adjust the boundaries of the circuits. With judicial boundaries more flexible, shifts in populations and workloads could be more effectively accommodated by the supreme court. 277 Thus, together with the ability to temporarily reassign judges to circuits with especially heavy workloads, the supreme court could make the South Dakota judicial system more efficient.278 This was the goal of the proposed amendment to the judicial article. The proposed judicial article also created a method for removing incompetent and/or disqualified judges, whereas under the existing system a judge could be removed only by impeachment or electoral defeat. The proposed article provided for a qualifications commission to investigate complaints against any judge. This provision reflected the commission’s recognition that impeachment was an ineffective method to remove judges. 279 The third replacement article presented by the commission involved the article on local government. This proposed article sought to replace two articles in the existing constitution—the one dealing with county and township organization, and the one dealing with municipal corporations. It also sought to fulfill two goals regarding the functioning of state and local government: first, that local government exists largely for the administration of state law by local officials; and second, that the units of local government are instruments of self-government which not only implement state law, but which also determine local policies to solve local problems.280 According to the commission, the new constitutional article would increase the efficiency and responsiveness of local units of government, as well as empowering and encouraging new approaches to local government. The amendment gave the right to adopt 276 Constitutional Change, Document No. FS 566 at 2. 277 51 Public Affairs 4. 278 Ronald D. Olinger, Constitutional Fact Sheet (1972). 279 Id. at 3. 280 Constitutional Change, Document No. FS 566 at 2.

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home rule to counties as well as to cities, and allowed each county to adopt the form of government that would best fit its needs. It also granted local governments the ability to develop cooperative approaches to providing various government services. The fourth and final proposed amendment to the constitution involved the article governing changes to the constitution. The commission’s proposed amendments and revisions article allowed the people to initiate the calling of a constitutional convention or the submission of a constitutional amendment to a popular vote. Previously, only the legislature could call for a convention or submit an amendment to a popular vote. Essentially, the proposed Article XXIII extended the right of initiative and referendum to constitutional amendments. Although the 1889 constitution had allowed the public to initiate a law, this power had not been given regarding constitutional amendments. The original constitution specified that the calling of a constitutional convention or the submission of constitutional amendments must pass the legislature before being submitted to the people. All four of these replacement articles were passed during the November election. Subsequently, the commission would propose further amendments to future legislatures. For instance, the commission’s proposed amendment to Article VII, dealing with elections and suffrage, which was adopted by both the legislature and the voters in 1974. Other proposed amendments included a second amendment to Article VII, Elections and Suffrage, which was passed by the legislature and by a significant margin in the 1974 general election. However, a proposed amendment involving Article III was defeated. Subsequent proposals were made in 1975. For instance, the 1975 legislative session passed the commission’s proposals to amend Article VIII, Article VI, a redraft of the Legislative Article III that was defeated by the people in 1974, and revisions to the Preamble. However, all these amendments were rejected in the 1976 general election.

■

PART t wo

The South Dakota Constitution and Commentary

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.

In 1976, the voters of South Dakota rejected an amendment to the Preamble. This amendment read: We, the people of South Dakota, grateful to almighty God for our civil, political and religious liberties, and recognizing the rights and duties of the state as a part of our federal system of government, reaffirm our adherence to the Constitution of the United States of America. In order to provide for the health, safety and welfare of the people, maintain a representative and orderly government, eliminate poverty and inequality, assure legal, social and economic injustice, afford opportunity for the fullest development of the individual, insure domestic tranquility, secure the common defense, and preserve to ourselves and our posterity the blessings of liberty, we do ordain and establish this Constitution for the state of South Dakota.

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This proposed amendment was voted down by 71 percent of the voters voting on it, by a margin of 183,548 against to 75,174 in favor. Because the vote occurred in a general election, there is no official record of why exactly such an amendment was rejected. But given all the different statements within this proposed amendment, reasons for rejection could be varied and numerous.

Article I Name and Boundary

Section 1 Name of State The name of the state shall be South Dakota.

Section 2 Boundaries of State The boundaries of the state of South Dakota shall be as follows:  Beginning at the point of intersection of the western 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 seventh standard parallel; thence west on the line of the seventh standard parallel produced due west to its intersection with the twenty-seventh meridian of longitude west from Washington; thence south on the twenty-seventh 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.

Since South Dakota was admitted as a state, there have been two adjustments in the southern boundary of the state caused by changes in the channel 45

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of the Missouri River. These changes entailed agreements between the states of South Dakota and Nebraska, as well as congressional enactments. These acts of Congress took place in 1896 and 1905. In 1962, the South Dakota Supreme Court held that the portion of the South Dakota-Nebraska boundary, fixed by a compact between the states as the middle of the main channel of the Missouri River as it existed in 1905, does not change in consequence of a change in the course of the river (Sioux City Boat Club v. Mulhall, 1962). But where the erosion of the Missouri River cut off and destroyed a tract of land which was originally granted to the state of Nebraska, that state lost its title to that land (Dailey v. Ryan, 1945).

Article II Division of the Powers of Government

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.

The doctrine of separation of powers is fundamental to the American scheme of government, and is incorporated in the federal constitution.1 This fundamental and longstanding doctrine of American and western legal jurisprudence is contained in Article II of the South Dakota Constitution. As the South Dakota Supreme Court has stated, this separation of powers article encompasses three prohibitions:  first, that no branch may encroach on the powers of another; second, that no branch may delegate to another branch its essential constitutionally-assigned functions; and third, that quasi-legislative powers may only be delegated to another branch if that delegation is accompanied by sufficiently guiding standards (State v.  Moschell, 2004). Under the separation of powers doctrine as contained in Article II, the courts have no legislative authority and thus should avoid judicial entry into the legislative field (Petition of Famous Brands Inc., 1984) There is a twofold purpose for the doctrine of separation of powers. The first purpose is to prevent an unnecessary and dangerous concentration of power in Patrick Garry, An Entrenched Legacy:  How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court (2007). 1

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one branch of government. The second purpose is to organize the administration of state government according to the assignment of different functions to different governmental entities (Wegleitner v. Sattler, 1998). Under the doctrine of separation of powers, the legislature cannot delegate its essential legislative powers to any other department of government. However, once the legislature has created a broad policy or articulated broad standards through its legislative enactments, it may delegate the execution of that policy or standards to executive or administrative agencies, provided that its adopted standards guide those agencies in the exercise of their delegated powers (State v.  Moschell, 2004). What is crucial is that the delegation to an executive officer or administrative agency be guided by sufficient legislative guidelines; if it is, then the legislature is empowered to delegate quasi-legislative power or functions to those officers or agencies (Livestock State Bank v. State Banking Commission, 1964). But the legislature cannot abdicate its essential power to enact basic principles or policies into law or delegate such power to any other department or governmental body (Boe v. Foss, 1956). The South Dakota Supreme Court’s interpretation of the legislative powers of delegation is similar to the U.S. Supreme Court’s interpretation, as discussed under Article III, Section 1 below. For instance, the creation, enlargement, consolidation, or dissolution of school districts is a legislative function, and judicial interference in that function is a violation of the separation of powers provision of Article II (Dunker v. Brown Co. Board of Education, 1963). Similarly, the power of each house of the legislature to pass upon the qualifications of its own members is exclusive (Gray v. Gienapp, 2007). Thus, in violation of the separation of powers doctrine, a court encroaches on the power of the legislature when it prohibits the state senate from proceeding with a disciplinary hearing of a member. The South Dakota Supreme Court in Application of Nelson (1968) described the separation of powers doctrine as it pertained to the judiciary: All the judicial power is expressly conferred upon the courts. The legislature can create no other court; and can confer judicial power, strictly such, that which deprives of life, liberty or property upon no other tribunal. Quasi-judicial powers involving judgment and discretion are often, and must necessarily be, exercised by administrative and executive bodies and officers. A judicial power, as such, can be exercised only by the courts. The three great departments of the government are intended to be, and must be, separate and distinct. The legislature has no power to confer a strictly executive or administrative or legislative power upon the judiciary, and whenever it has sought to do so, the courts have declared it void. The courts hold, and must continue to hold, that they cannot and will not exercise other than judicial power.

In Application of Nelson, the court ruled that a statute providing for the designation or appointment of a state judge to act as one of seven members of a

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board of mediation charged with resolving disputes as to which corporation will provide future electrical service to consumers violated the separation of powers doctrine, since the statute was an attempt to impose on the judge non-judicial duties to be shared with administrative members appointed by the executive department.

Article III Legislative Department

■■ INTRODUCTION AND HISTORY

When adopted in 1889, Article III reflected both an opposition to the previous territorial system and a desire to eliminate legislative corruption in the future. Opposed to perceived corruption of territorial officials by the railroad lobby, South Dakotans incorporated within their constitution various measures aimed at limiting outside influences on the legislature.2 Securing local and state self-government from outside influence or manipulation promised to give South Dakotans greater control over their economic destiny. 3 One way to achieve this goal was to include in the state constitution various anti-corruption measures.4 Reflecting a distrust of the territorial legislature and a desire to control the per diem compensation of legislators, the constitution imposed strict limitations regarding the frequency and length of legislative sessions. 5 2 Jon Lauck, Prairie Republic: The Political Culture of Dakota Territory, 1879– 1889, 90, 114 (2010); Jon Lauck, “The Organic Law of a Great Commonwealth”: The Framing of the South Dakota Constitution, 53 S.D. L. Rev. 245 (2008). 3 Lauck, Prairie Republic, 90. 4 Lauck, “The Organic Law of a Great Commonwealth,” 233–34; Lauck, Prairie Republic, 103–04. 5 William H.  Cape, Constitutional Revision in South Dakota 22 (Govt. Research Bureau, USD, Report #39, 1957).

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The drafters of the South Dakota constitution often looked to the Illinois, Pennsylvania, and Minnesota state constitutions as models in this regard.6 For example, the section prohibiting a legislator from voting on a bill in which he or she has a private interest was taken from the Pennsylvania constitution, and the provision regulating special laws came from the Minnesota and Illinois constitutions.7 The most noteworthy and, at the time, reformist feature in Article III was the initiative and referendum provisions in Section 1. This direct democracy provision could be viewed as the supreme anti-corruption measure, since it enabled a public unhappy with the actions of its legislature to take matters into its own hands. Whereas the initiative allows the public to bypass the legislature entirely and pass its own laws in a general election, the referendum allows the public to repeal a law previously enacted by the legislature. South Dakota was the first state in the nation to adopt initiative and referendum.8 This measure was one of the hallmark causes of the populist movement of the late nineteenth century.9 The origins of the populist movement reached back to the 1870s with the Granger organization, which led to the Farmers’ Alliance Movement in the 1880s throughout the western and southern states, which then led to the populist movement.10 These movements arose in part out of farmers’ beliefs that the railroads and eastern bankers were exploiting them.11 In just the two years between 1886 and 1888, the number of local Alliance groups in South Dakota increased from 256 to 744.12 The initiative and referendum first took root in Switzerland, which had employed direct legislation for decades.13 The initiative and referendum movement in America was not based on a desire to do away with the legislative system; instead, the goal was to give the people the power to act when their legislatures failed to act in the public interest.14 The drive for initiative and referendum first came to the Dakota Territory in the mid-1880s from the Knights of Labor.15 The cause was soon adopted 6 Lauck, Prairie Republic, 99; Marie Louise Lotze, How South Dakota Became A State, in 14 South Dakota Historical Collections 474–75 (1928). 7 Lotze, How South Dakota Became A State, 474–75. 8 Richard Braunstein, Initiative and Referendum Voting: Governing Through Direct Democracy in the United States 37 (2004). 9 Id. at 38. 10 Burton Ellsworth Tiffany, The Initiative and Referendum in South Dakota, in 12 South Dakota Historical Collections 335 (1924). 11 Tiffany, The Initiative and Referendum in South Dakota, 334; Lauck, “The Organic Law of a Great Commonwealth,” 236–38. 12 Lauck, “The Organic Law of a Great Commonwealth,” 257. 13 Richard J.  Ellis, Democratic Delusion:  The Initiative Process in America 28 (2002). 14 Tiffany, The Initiative and Referendum in South Dakota, 345. 15 Doane Robinson, South Dakota, Sui Generis:  Stressing the Unique and Dramatic in South Dakota History 351 (1930).

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by Henry Loucks, the president of the South Dakota Farmers’ Alliance and future president of the National Farmers’ Alliance. Loucks was also editor of the agrarian reform newspaper The Ruralist, and in this role he promoted the initiative and referendum as a vital way of pursuing the reforms sought by the Farmers’ Alliance Movement, focusing on controlling the political power of railroads and eastern monopolies.16 The quest for initiative and referendum was fueled by the economic events of the time, with Dakota farmers blaming falling commodity prices on the railroads and eastern bankers, and believing that rural communities could better control outside forces that were hurting farm incomes through the initiative and referendum process.17 Loucks used the populist movement to press the campaign for initiative and referendum in South Dakota. In 1890, the Farmers’ Alliance combined with the Knights of Labor to form the Populist Party, making South Dakota the first state to possess an active Populist Party.18 In 1892, this new South Dakota Populist Party adopted the initiative and referendum as an important feature of its platform.19 The Populist Party gained further political notoriety in 1896 with the election of Governor Andrew Lee.20 Moreover, with the growing populist influence in the state legislature, proponents of the initiative and referendum were able to put the issue on the general election ballot. Fearing the political repercussions of a continued opposition to a popular cause, the Democratic and Republican parties both supported it.21 The initiative and referendum amendment appeared on the ballot in November of 1898 and was passed by a significant margin. As the first state in America to adopt the initiative and referendum, South Dakota served as a model for other states considering these procedures.22 As of 2012, there were twenty-four state constitutions that had referendum procedures.23 Following its incorporation into the South Dakota constitution, the initiative and referendum was infrequently used at first. Moreover, when it was used, it was often unsuccessful.24 From 1908 to 1970, only sixteen measures appeared on the general election ballot, and of those sixteen measures only two were adopted.25 16 Ellis, Democratic Delusion, 27. 17 Braunstein, Initiative and Referendum Voting, 38. 18 Id. 19 Ellis, Democratic Delusion, 27. 20 Tiffany, The Initiative and Referendum in South Dakota, 350. 21 Id. at 353–54. 22 Chip J. Lowe, Restrictions on Initiative and Referendum Powers in South Dakota, 28 S.D. L. Rev. 53, 54 (1982). 23 Dale A. Oesterle, The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right, 116 Yale L. J. Pocket Part 123 (2006). 24 Braunstein, Initiative and Referendum Voting, 41. 25 Id.

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The 1970s, however, witnessed a significant change. Initiative and referendum was extended to counties, and in 1972, Article XXIII of the state constitution was amended to allow constitutional amendments by initiative.26 Furthermore, in 1988, voters amended Article III, Section 1 to allow an initiative to be placed on the ballot without first being submitted for legislative approval. With these changes, the use of the initiative and referendum greatly increased. In the ten-year period from 1978 to 1988, as many initiatives appeared on the ballot as had appeared during the previous 55 years. 27 Moreover, a significantly higher proportion of initiated measures were approved after the 1970s.28 Between 1924 and 1977, there were five initiatives, with none passing; between 1978 and 1988 there were eleven proposed initiatives, with five being approved; and between 1989 and 2012 there were twenty-one initiatives on the ballot (seven in 2006 and 2008), with six approved. (For a more expansive discussion of the history surrounding the adoption of these direct democracy provision, see Article III, Section 1 below.) Section 1 Legislative Power—Initiative and Referendum The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted 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. Not more than five percent 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.

The Legislature and Legislative Power The first sentence of Section 1 creates a bicameral legislature and places all legislative powers in that legislature. This legislative power is basically unlimited, 26 Candice Spurlin, Researching Initiatives and Referendums: A Guide for South Dakota, 26 Legal

Reference Services Quarterly 288–89 (2007). 27 M. Dane Waters, Initiative and Referendum Almanac, 391 (2003). 28 Braunstein, Initiative and Referendum Voting, 42.

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except for the constraints on it by other provisions in the state constitution or by federal law (In re Certification of a Question of Law, 2000). It is different from the kind of legislative power conferred in the federal constitution. The U.S. Constitution is one of limited and enumerated powers, with Congress possessing only the power granted to it by the Constitution. To the contrary, the South Dakota constitution is not a grant of legislative power, but acts as an array of specified limitations on the otherwise unlimited powers of the legislature (Breck v. Janklow, 2001). In applying and enforcing Section 1, the South Dakota Supreme Court has on various occasions described the nature of legislative power. For instance, the court has ruled that ratemaking for a public utility is a legislative process (Northwestern Public Service Co. v. Cities of Chamberlain, et al., 1978). The creation, enlargement, consolidation and alteration of school districts constitute a legislative function (Sunnywood Common School Dist. No. 46 v. County Board of Education, 1964), as well as the granting of a license to motor carriers to conduct intrastate business (Application of Dakota Transportation of Sioux Falls, 1940). By confining legislative power to the state legislature, Section 1 incorporates the doctrine of separation of powers (Dunker v.  Brown Co. Board of Education, 1963). Similar to how the U.S. Supreme Court has interpreted the separation of powers doctrine within the U.S. Constitution, the South Dakota Supreme Court has ruled that the state legislature is prohibited from giving away its legislative power to any other branch or department of government. However, quasi-legislative power may be delegated to administrative agencies to implement existing legislation. This quasi-legislative power can be delegated only if the legislature provides minimum standards and guidelines to that delegation, but purely legislative power can never be delegated (Schryver v. Schirmer, 1969). As with the nondelegation doctrine used by the U.S. Supreme Court in its separation of powers decisions, the South Dakota Supreme Court has ruled that any delegations to the executive branch must be accompanied by sufficient guidelines or intelligible principles (Boever v.  South Dakota Board of Accountancy, 1997). The test as to whether an unconstitutional delegation of legislative power has occurred is whether there is a sufficient standard or intelligible principle to guide the entity to which the delegation has been made (Oahe Conservancy Subdistrict v. Janklow, 1981). However, as with the federal nondelegation doctrine, the South Dakota Constitution has not been interpreted to place significant burdens on delegation. As an example of an unconstitutional delegation that did not establish adequate standards, the legislature granted to the State Board of Transportation the discretion to negotiate with the federal government such things “as it shall deem appropriate” and to attempt to establish unzoned areas “as large as is permissible” (Hogen v. South Dakota State Board of Transportation, 1976). Also

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found unconstitutional was legislation requiring that salaries of firefighters and police be computed on the basis of future wage scales of specific skilled workers. The court held this to be an unlawful delegation of legislative power to trade unions and employers of union members (Schryver v. Schirmer, 1969). Initiative and Referendum The initiative and referendum provisions in Section 1 of the South Dakota Constitution give the right of direct democracy to the public. Subsequent to ratification of this amendment to the state constitution, the legislature extended the initiative and referendum to county electors (Hofer v. Board of County Commissioners, 1983). As provided in Section 1, however, the right to initiate and refer legislation is not self-executing; therefore, the legislature has enacted laws providing for the initiative and referendum process. 29 In Byre v. City of Chamberlain (1985), the South Dakota Supreme Court differentiated between an initiative and a referendum: Initiative is the constitutional reservation of power in the people to propose bills and laws and to enact or reject them at the polls independent of the legislative assembly. Referendum, on the other hand, is a right constitutionally reserved to the people of the state or local subdivisions thereof to have submitted for their approval or rejection any act, or part of any act, passed by the legislature, which in most cases would, without action on the part of the electorate, become law.

As further explained by the court, the purpose of the initiative is not to curtail legislative power to enact laws, but rather to empower the people in the event the legislature fails to act in accordance with the desires of the people. The purpose of referendum, on the other hand, is to nullify undesirable laws that have already been passed by the legislature. The procedural requirements relating to the initiative and referendum process are set out not only in Section 1, but also within the statutes governing the initiative and referendum process. These statutes fix the time deadlines for filing petitions, as well as the form those petitions need to take. According to Section 1, the legislature cannot require that more than five percent of the qualified electors be required to sign a petition. A referendum petition must be filed in the office of the Secretary of State within ninety days after the adjournment of the legislative session in which the law was passed (Wyatt v. Kundert, 1985). Once a proper petition is filed, the subject legislation cannot take effect prior to the referendum election. However, an initiative election may be avoided if the appropriate governing body enacts the proposed measure prior to the election date (State v. Hahn, 1943).

29 See S. D. Codified Laws § 9-20-1 et seq.

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The issue of whether a particular legislative enactment is subject to a referendum is a question of law for the courts (Kirschenman v.  Hutchinson Co. Board of Commissioners, 2003). Moreover, the right to a referendum cannot be defeated by legislative action. For instance, if the law in question contains an exclusive statutory remedy for challenging that law, such a remedy cannot trump the constitutional right to a referendum. The right to a referendum exists regardless of any exclusive remedy statute pertaining to the measure (Vitek v. Bon Homme Co. Board of Commissioners, 2002). Section 1 exempts from the referendum process two classes of laws. The first class involves those “necessary for the immediate preservation of the public peace, health or safety.” The second type of laws involves those necessary for the “support of the state government and its existing public institutions.” These two exceptions apply only to the referendum process, not to the initiative process (Christensen v. Carson, 1995). Whether an act falls within one of the two classes of exceptions is a question of law, subject to judicial review (Breck v. Janklow, 2001). For a law to qualify for the first exception—that it is necessary for the immediate preservation of public peace, health, or safety—it must be accompanied by a legislative declaration of such a necessity (Baker v. Jackson, 1985). Absent this declaration, the law will not be exempt from a referendum election. However, the courts will liberally apply this requirement, and in cases of doubt will defer to the legislature. In Culhane v.  Equitable Life Assurance Society of the United States (1937), the legislature had passed a law providing for a moratorium on mortgage foreclosures. The legislature declared that the act was needed for the immediate support of the state, and further declared the existence of an emergency—the emergency being the economic crisis of the Great Depression. However, the legislature did not include specific language about the law being necessary for the immediate preservation of the public peace, health, or safety. Nonetheless, the court sifted through the statutory language, and after taking judicial notice of the existing economic conditions determined that indeed the law was necessary for the preservation of the public peace, health, and safety. 30 Thus, the issue of whether an act falls within the class of laws dealing with the immediate preservation of the public peace, health, or safety depends not only on the language of the act itself, but on the court’s interpretation of the legislature’s intent and on certain judicially noticed facts. On the other hand, the court has invalidated legislative declarations of necessity for public peace, health, and safety where the declarations were seen as a sham, lacking any basis in fact (Lindstrom v. Goetz, 1951).

30 Lowe, Restrictions on Initiative and Referendum Powers, 59.

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No legislative declaration is needed for a law to qualify for the second exception from the referendum process—those laws necessary for the support of the state government and its existing public institutions. Rather, the act in question is automatically exempt from the referendum process if the substance of the act falls within the defined exception (State v. Larson, 1965). In Breck v. Janklow (2001), the South Dakota Supreme Court articulated a test for determining whether a law was necessary for the support of state government: This court in determining whether a law is necessary for the support of the state government and its existing institutions will consider the effect upon such support of delay incident to referral and the consequences if the law is defeated. If the efficient operation of the state government would be unaffected by the delay or possible defeat, the law in such instance cannot be said to be necessary so as to prevent a referral.

Courts give “every favorable presumption” to the legislature in determining whether the statute is necessary for the support of state government. The term “necessity” refers to a law that not only secures additional revenue for the state, but which may also maintain existing revenues to the state or prevent a decrease in the present sources of revenue. 31 In State v. Larson (1965), the imposition of an excise tax upon certain services and professions was found to be necessary for the support of state government, since as a tax it would produce additional revenue for the general fund of the state. In Breck v.  Janklow (2001), a legislative decision to sell a state-owned cement plant was also found to fall within this exception, since the legislature had decided that a sale at this particular time was necessary to maximize revenue. Generally, unless the legislature’s decision is plainly erroneous, the court will not reverse a determination that a particular measure is necessary for the support of state government and its existing institutions (Breck v. Janklow, 2001). However, the South Dakota Supreme Court has indicated that the class of laws entitled to the support exception is limited to measures that can be characterized as appropriation bills or revenue-raising measures. 32 In an early case, the court stated that the support exception does not extend beyond the furnishing of funds or revenues to meet the needs of the state (Engelcke v. Farmers State Bank of Canistota, 1932). With respect to the term “existing institutions,” the court has stated that it will not literally interpret that term but will view it as including appropriations “for such new buildings and conveniences as may be necessary to meet the needs . . . of the state” (State v. Taylor, 1920). On the other hand, a bonding measure related to a proposed municipal auditorium was not viewed as a

31 Id. at 61. 32 Id.

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measure necessary for the support of an existing institution, since the auditorium was at that time only “the wistful thinking of a progressive citizenry” (State v. Walt, 1938). In Gravning v. Zellmer (1980), the South Dakota Supreme Court indicated that it would be flexible in its interpretation of the phrase “existing public institutions.” Gravning involved an attempt to invoke referendum rights regarding a law that increased taxes to generate revenue earmarked for the Railroad Authority, a new agency created in the same statute as that petitioned for referral. With the state arguing that the measure fell within the support exception and could not be referred, the issue became whether the measure was for an “existing public institution.” Since the Railroad Authority had not existed prior to the statute, the petitioners argued that the measure could not qualify for the exception. However, the court took a more liberal view of the term “existing.” It found that, given the state’s longstanding commitment to an adequate railroad system, the statute at issue did not create a brand new state institution or set the state upon a previously uncharted course. 33 According to the court, the notion of existing public institution should not be defined narrowly from the perspective of a single government agency, but more broadly from the overall history of the state’s connection with the subject matter of the statute. Thus, the historical legislative interest in the general subject matter of railroads had transformed the overall area of railroad regulation into an existing institution. For this reason, regulatory history may be even more important in determining “existing public institution” than any specific boundaries of any single public entity. 34 The term “necessary”—in terms of “necessary” for the support of state government—is a fluid term and has been the subject of much litigation. 35 Initially, the court seemed to take a rather narrow view of the term. In State v. Pyle (1929), the legislature attempted, through a transfer tax on the sale of automobiles, to impose more of the property tax burden on the buyers of automobiles. After the secretary of state refused to accept a petition for referendum of the measure, the issue became whether the measure was necessary for the support of the government. The measure produced no additional revenues; it simply transferred the burden of taxation from one type of payer to another type. The court held that the support exception did not apply, ruling that a statute was necessary for the support of state government only if the government would be affected adversely should the measure not go into effect. In this case, according to the court, the state government would not be affected, since it would still receive the same amount of revenue. Thus, the court interpreted the term “necessary” in a way that gave as much freedom as possible to the right of referendum. 33 Id. at 63. 34 Id. 35 Id. at 64.

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However, this restrictive interpretation of the “necessity” exception has not prevailed over the years. In a long line of cases following Pyle, the court has drifted to a more deferential stance regarding legislative determinations of necessity. 36 In State ex rel. Botkin v. Morrison (1933), the court dealt with a measure attempting to replace and reduce property taxes with an income tax of a like amount. Similar to Pyle, the measure did not have any immediate effect on state revenues. But instead of following Pyle, the court upheld the necessity exception and stated that “every reasonable presumption must be indulged in favor of the determination of the necessity of the legislation” (State ex rel. Botkin v. Morrison, 1933). Now, for a court to decide that a measure is not necessary for the support of the state government, it must find that the conclusion is not reasonably disputable (Breck v. Janklow, 2001). The court will not engage in its own fact-finding process to determine necessity of a statute for the support of the state government; rather, the scope of the review is limited to what appears upon the face of the act and the facts within the court’s judicial knowledge. As a result, the general rule is that most legislative acts dealing with fiscal matters will be immune from referendum. In Gravning v. Zellmer (1980), the court stated: We must give every favorable presumption to the legislative determination that the law in question is necessary. This is not to say that there are no cases in which this court should declare an emergency clause to be of no force and effect. Indeed, this Court has not hesitated to declare an emergency clause a nullity where from the substance of the act in question there clearly could not have been an emergency.

Overall, courts will take a broad view of the whole statutory scheme and the historical regulation of the area so as to uphold the legislative determination and not substitute its judgment for that of the legislature. The two exceptions to referendum rights seek to balance the right of direct democracy with the government’s ability to act expeditiously and free from interference. 37 Litigation involving these exceptions usually arises when those seeking a referendum have gone to court seeking a writ of mandamus to force a public official such as the secretary of state to accept the referendum petition and establish a date for the election; because when officials deny the petition, they usually do so on the ground that the measure in question falls within one of the exceptions. 38 There has also been much litigation relating to the relationship between the exceptions outlined in Article III, Section 1 and the emergency 36 Id. at 66. 37 Id. at 56. 38 Id.

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legislation provisions in Article III, Section 22. That section provides that upon a two-thirds vote the legislature may declare a particular law to be necessitated by an emergency, with the result that the law becomes effective immediately upon passage. If the law is effective upon passage, however, there will be no time to hold a referendum election on that law, even if a valid petition for referendum is timely filed. Consequently, the issue has arisen as to whether Section 22 further restricts the rights of initiative and referendum beyond the exceptions outlined in Section 1. Early on, in State ex rel. Lavin v. Bacon (1901), the South Dakota Supreme Court held that the emergency declaration provision of Section 22 must be read as a third exception to the referendum process. Thus, a legislative emergency determination is conclusive and will effectively deny any right of referendum on that measure. However, this holding did not prevail. Eventually, the Court reconsidered Bacon and ruled that the Section 1 exceptions act as limitations on the legislature’s right to declare an emergency under Section 22. Therefore, the people’s right to referendum takes precedent over the legislature’s ability to avoid a referendum through an emergency declaration: Section 1 narrows or qualifies Section 22; Section 22 does not narrow or qualify the Section 1 exemptions. The confusion regarding the relationship between Section 1 and Section 22 stemmed from the question of whether courts had to defer to legislative declarations of emergency under Section 22, thereby precluding any referendum from taking place, regardless of whether the measure in question qualified for one of the exceptions in Section 1. As the court articulated this dilemma in State v. Goetz (1951): The confusion, which is understandable, arises from the failure to always distinguish between laws not subject to the referendum as defined in Article III, Section 1, and those classified as emergency laws in Article III, Section 22 of the Constitution. The fact that the former have sometimes been referred to as “emergency measures” has caused the difficulty.

In unraveling this confusion, the court has provided a roadmap for understanding the interplay between Sections 1 and 22. First, courts have to determine whether the measure at issue qualifies for one of the two exceptions in Section 1. Only after an affirmative decision is made on this point does the court then look to see whether Section 22 comes into play. Only those laws not subject to the referendum, because they fit into one of the two exceptions in Section 1, are subject to the emergency clause authorized by Section 22. As the court in State v. Goetz ruled: Whether a law or ordinance is subject to the referendum is a judicial question. If it is found that the law is not subject to the referendum, the legislative declaration of an emergency is conclusive. If it be found that the law is subject to

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the referendum, the declaration of an emergency is void, for then no emergency could exist.

The issue of whether an emergency exists within the meaning of Section 22 is a matter solely for the legislature to decide, as long as the law to which the emergency clause is attached falls within one of the two exceptions in Section  1. This approach preserves the rights of referendum outlined in Section 1. Otherwise, the legislature could frustrate those rights simply by declaring an emergency. The remaining provisions of Section 1, especially those dealing with the procedural requirements of referendum petitions, are rather straightforward. Although the Section applies only to state and municipalities, the legislature subsequently applied the referendum and initiative to county governments as well. With respect to the number of electors who must sign a petition, the South Dakota Supreme Court has defined qualified electors to mean registered voters. The court in Bjornson v. City of Aberdeen (1980) held that a qualified elector, as referred to in Section 1, is a person who is not only eligible to vote but who has also registered to vote in the appropriate jurisdiction. In so deciding, the court followed the more restrictive view, favoring registered voters over eligible voters. According to the court, “Five percent of the responsible electors who have exercised the right of registration to vote is not an undue burden on those who wish to petition.” Upon the filing of a referendum petition, the law in question is suspended until the outcome of the election. In Brendtro v. Nelson, the court overruled a previous decision and held that the people’s right to initiate measures includes the power to propose the repeal of existing laws. According to the court, the people’s power to initiate laws is concurrent with the legislature’s authority to propose measures. Thus, the initiative can be used to initiate laws on any subject, even those excepted from the scope of referendums. Whereas exceptions to referendum are to be strictly construed by the courts, the reserved powers of initiative and referendum are to be broadly construed. Section 2 Number of Legislators—Regular Sessions After the Legislature elected for the years 1937 and 1938 the number of members of the house of representatives shall not be less than fifty nor more than seventy-five and the number of members of the senate shall not be less than twenty-five nor more than thirty-five. The sessions of the Legislature shall be biennial except as otherwise provided in this Constitution.

An amendment to this section in 1936 reduced the minimum number of representatives from 75 to 50, the maximum number of representatives from

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135 to 75, and the maximum number of senators from 45 to 35. Subsequent amendments designed to increase these numbers were rejected. Section 3 Qualifications for Legislative Office—Officers Ineligible No person is eligible for the office of senator who is not a qualified elector in the district from which such person is chosen, a citizen of the United States, and who has not attained the age of twenty-one years, and who has not been a resident of the state for two years next preceding election. No person is eligible for the office of representative who is not a qualified lector in the district from which such person is chosen, and a citizen of the United States, and who has not been a resident of the state for two years next preceding election, and who has not attained the age of twenty-one years. No judge or clerk of any court, secretary of state, attorney general, state’s attorney, recorder, sheriff or collector of public moneys, member of either house of Congress, or person holding any lucrative office under the United States, or this state, or any foreign government, shall be a member of the Legislature:  provided, that appointments in the militia, the offices of notary public and justice of the peace shall not be considered lucrative; nor shall any person holding any office of honor or profit under any foreign government or under the government of the United States, except postmasters whose annual compensation does not exceed the sum of three hundred dollars, hold any office in either branch of the Legislature or become a member thereof.

This section governs the age and residency qualifications of persons eligible for the offices of representative and senator. It also lists those other government employees or officers who, by virtue of their government position, are ineligible to be a member of the state legislature. The provisions in Section 3 are fairly straightforward and have not produced any significant litigation. However, this section should also be read in connection with Section 9, which deals with the legislature’s power to determine the electoral qualifications of its members—e.g., whether a particular member has prevailed in a general election. As will be further reiterated by the case law interpreting Section 9 below, the power of each house of the legislature to pass upon the qualifications of its own members is exclusive or plenary (Gray v. Gienapp, 2007). Section 4 Disqualification for Conviction of Crime—Defaults on Public Money No person who has been, or hereafter shall be, convicted of bribery, perjury, or other infamous crime, nor any person who has been, or may be collector or holder of public moneys, who shall not have accounted for and paid over, according to law, all such moneys due from him, shall be eligible to the Legislature or to any office in either branch thereof.

This section has not been the subject of any significant commentary or judicial opinions.

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Section 5 Legislative Reapportionment The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.

An amendment to Section 5 approved in 1936 deleted the requirement for apportionment after a federal census, as well as a provision excluding Indians not taxed from the state enumeration. The amendment also added the provision requiring the named state officers to make an apportionment if the legislature failed to do so. A 1948 amendment deleted the provision for a state census and changed the time of reapportionment to 1951 and every tenth year after. It adopted the federal census as the basis of reapportionment and deleted a provision excluding soldiers and officers of the United States military from the population calculations determining reapportionment. A 1982 proposal repealed and reenacted the section which read: The legislature shall apportion its membership in accordance with the last federal census prior to the legislative session at which such apportionment shall be made. Such apportionment shall be made by the regular session of the legislature in 1951 and every ten years thereafter and at no other time. If any legislature whose duty it is to make the same as herein provided that it shall be the duty of the governor, superintendent of public construction, providing judge of the Supreme Court, attorney general and secretary of state within 30 days after the adjournment of the legislature to make such apportionment and when so made a proclamation is issued by the governor announcing such apportionment the same shall have the same force and effect as though made by the legislature.

The South Dakota Supreme Court has interpreted this section to mean that the legislature cannot apportion at any time other than after a decennial census (In re Certification of a Question of Law, 2000). The general rule is that once a valid apportionment law is enacted, no future apportionment may be made until after the next regular apportionment period prescribed by the state constitution, which is following the next decennial census. In 2000, the South Dakota Supreme Court was presented with the question of whether the legislature could amend an apportionment statute in

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1996, after having already conducted an apportionment in 1991, following the 1990 decennial census. The court held that the 1996 apportionment was invalid and that the legislature could not apportion again until after the 2000 census. Under Section 5 of Article III, once the legislature performed its mandated apportionment in 1991 following the 1990 federal census, it lacked any constitutional authority to make another apportionment until after the next federal census (In re Certification of a Question of Law, 2000). Citing the rule previously laid down in Kane v.  Kundert (1985), the court stated that: “When there is an affirmative constitutional mandate for legislative action at a certain specified time, there is an implied prohibition of action at any other time.” If a legislature fails to exercise its apportionment duty at the appointed time, it may do so in the next legislative session, since the duty to apportion continues until it has been performed. However, such a scenario, sanctioned by the court in 1933, was basically eliminated by a 1992 amendment, which requires the South Dakota Supreme Court to conduct an apportionment should the legislature fail to perform its duty. Thus, the supreme court now has the duty to perform an apportionment within ninety days after the legislature’s deadline for performance has expired. The issue of legislative apportionment, although addressed by Article III, Section 5, has many connections with federal statutory and constitutional law. For instance, not only does the federal constitutional rule of one-person/ one-vote affect apportionment decisions, but so does the federal Voting Rights Act. The interplay of this Act with Article III, Section 5 of the South Dakota constitution arose in Bone Shirt v. Hazeltine (2005), an Eighth Circuit Court of Appeals decision in 2005. In Bone Shirt, the South Dakota Supreme Court addressed the issue of whether the legislature had the power to reapportion districts in response to a federal district court’s finding that the previous apportionment in 2001 had violated the Voting Rights Act of 1965. The federal court was requiring the legislature to undergo a reapportionment subsequent to the 2001 apportionment and prior to the 2011 apportionment. Thus, the legislature was being asked to do what had previously been found unconstitutional. In Bone Shirt, the court reconciled this dilemma by ruling that the constitutional prohibition on reapportionments at any time other than following each decennial census was conditioned upon the prior performance of the duty to apportion and does not come into being until that duty has been properly exercised. If the legislature fails to properly perform the duty, the obligation to apportion is not fulfilled; the duty remains outstanding until the apportionment is made in a legal and valid manner. Consequently, if the legislative apportionment is deemed invalid by a court, then the legislature has not fulfilled its constitutional mandate and has a continuing duty to enact a valid apportionment plan.

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Section 6 Compensation—Regular Sessions The terms of office of the members of the Legislature shall be two years; they shall receive for their services the salary fixed by law under the provisions of § 2 of article XXI of this Constitution, and five cents for every mile of necessary travel in going to and returning from the place of meeting of the Legislature on the most usual route. No person may serve more than four consecutive terms or a total of eight consecutive years in the senate and more than four consecutive terms or a total of eight consecutive years in the house of representatives. However, this restriction does not apply to partial terms to which a legislator may be appointed. A regular session of the Legislature shall be held each year and shall not exceed forty legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisites except salary and mileage.

A 1962 amendment to this section provided for shorter annual sessions and inserted a provision permitting statutory changes in the salaries of legislators. A 1992 initiated amendment added what is now the second paragraph of this section, and a 2008 amendment changed the regular sessions of the legislature from every odd-numbered year to every year. In addition, the amendment deleted what was then the entire fourth paragraph of the section, which read: A regular session of the legislature shall be held in each even-numbered year beginning with the year 1964 and shall not exceed thirty-five legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the legislature shall receive no other pay or perquisites except salary and mileage.

A proposed amendment to repeal certain reimbursement restrictions for travel was defeated in the general election of November 6, 2012. In disputes over whether legislation was enacted and enrolled within the specified time limit for the legislative session, courts make every presumption that timely passage occurred, irrespective of what unofficial sources of information may report (In re Rounds, 2003). Essentially, unless the evidence is conclusive to the contrary, courts should not find that the legislation was enacted after the legislative session ended. In Christopherson v. Reeves (1921), the court held that Section 6 did not forbid a legislative expense allowance of $200 for each member of the legislature, in addition to per diem and mileage. This allowance reflected expenses incidental to travel to the state capitol, as well as the increased expense of living at a place other than the legal residence of the legislator while the legislature was in session. According to the court, the expense allowance constituted repayment of expenditures estimated in advance and allowable by law. The court further held that the constitutional allowance for mileage in Section 6 does not preclude the legislature from making other allowances for expenses.

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This section should also be read in connection with Article XII, Section 3 of the constitution, which provides that the legislature shall never grant any extra compensation to any public officer after services have been rendered (Opinion of the Judges, 1969). Section 7 Convening of Annual Sessions The Legislature shall meet at the seat of government on the second Tuesday of January at 12 o’clock m.  and at no other time except as provided by this Constitution.

A 1980 amendment eliminated provisions in this section which differentiated between even-numbered and odd-numbered years. Section 8 Oath Required of Legislators and Officer—Forfeiture of Office for False Swearing Members of the Legislature and officers thereof, before they enter upon their official duties, shall take and subscribe the following oath or affirmation: I do solemnly swear (or affirm) that I  will support the Constitution of the United States and the Constitution of the state of South Dakota, and will faithfully discharge the duties of (senator, representative or officer) according to the best of my abilities, and that I have not knowingly or intentionally paid or contributed anything, or made any promise in the nature of a bribe, to directly or indirectly influence any vote at the election at which I was chosen to fill said office, and have not accepted, nor will I accept or receive directly or indirectly, any money, pass, or any other valuable thing, from any corporation, company or person, for any vote or influence I may give or withhold on any bill or resolution, or appropriation, or for any other official act. This oath shall be administered by a judge of the Supreme or circuit Court, or the presiding officer of either house, in the hall of the house to which the member or officer is elected, and the secretary of state shall record and file the oath subscribed by each member and officer. Any member or officer of the Legislature who shall refuse to take the oath herein prescribed shall forfeit his office. Any member or officer of the Legislature who shall be convicted of having sworn falsely to, or violated his said oath, shall forfeit his office and be disqualified thereafter from holding the office of senator or member of the house of representatives or any office within the gift of the Legislature.

This section is straightforward, and there has been no significant case law interpreting or applying it. Section 9 Each House as Judge of Qualifications—Quorum—Rules of Proceedings—Officers and Employees Each house shall be the judge of the election returns and qualifications of its own members.

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A majority of the members of each house shall constitute a quorum, but a smaller number may adjourn from day-to-day, and may compel the attendance of absent members in such a manner and under such penalty as each house may provide. Each house shall determine the rules of its proceedings, shall choose its own officers and employees and fix the pay thereof, except as otherwise provided in this Constitution.

This section reflects separation of powers concerns and allows the legislature to have the final say as to its membership. As the South Dakota Supreme Court has ruled, the legislature has the exclusive constitutional power to judge the qualifications of its members (State ex rel. Walter v. Gutzler, 1977). This section relates to Section 3, and some of the case law under that section reflects similar concerns to that under Section 9. Once a general election has been held, the power to judge the qualifications of legislative candidates is vested exclusively in the legislature; consequently, it was outside the jurisdiction of the judicial branch to determine whether a candidate was disqualified by a particular residency requirement. Because the power of each house of the legislature to pass upon the qualifications of its own members is exclusive or plenary, by issuing a writ prohibiting the state senate from proceeding with a disciplinary hearing of a member and from publicly disclosing the contents of any investigation preceding that disciplinary hearing, the judiciary encroached on the powers of the legislature in violation of the separation of powers doctrine (Gray v. Gienapp, 2007). Article III, Section 9 of the South Dakota constitution has a counterpart in Article I, Section 5 of the United States Constitution. Both these constitutional provisions reflect a fundamental principle of separation of powers. The legislature must have autonomy in its own affairs and over its own members. Not only must the legislature be free from interference from the other branches, but each house of the legislature should have its own independence; neither house, for instance, can interfere with the other’s membership. Furthermore, because Section 9 deals only with seating of each house’s “own members,” it applies only to general elections, since only general elections actually determine the members of the legislature. Primary elections, on the other hand, do not determine legislative members, but only designate the nominees of a particular political party. 39 Section 9 contains two different elements. First, there is the constitutional duty and right of each legislative body to judge the electoral eligibility of its own members—e.g., whether a member has won an election to a legislative seat. Second, there is the constitutional duty and right of each legislative body Ronald A. Parsons, Jr., Pierre Pressure:  Legislative Elections, The State Constitution, and the Supreme Court of South Dakota, 50 S.D. L. Rev. 220–21 (2005). 39

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to judge the qualifications of its own members.40 According to the court in South Dakota ex rel. Ingles v. Circuit Court of Spink County (1934), the judiciary cannot interfere in determining an election result following a disputed general election. The rule was reaffirmed in State ex rel. Walter v. Gutzler (1977), which held that after a general election, the power to judge the qualifications of a candidate for the state legislature rests exclusively in the legislature. The court made special note of the fact that the people of South Dakota had in two previous elections rejected proposed constitutional amendments that would have authorized the courts to become involved in resolving general elections for legislative offices. This rule of judicial non-intrusion was somewhat watered down in the subsequent case of McIntyre v. Wick (1996). In McIntyre, the court seemed to draw a distinction between a candidate’s electoral eligibility for a legislative seat and a candidate’s more general qualifications for that seat. Although recognizing that the legislature possessed the ultimate power to make a final determination of a legislative election, the court suggested that Section 9 does not prevent the judiciary from overseeing the process of election contests, stating that it was statutorily empowered to review the vote-counting in any recount proceeding and issue a nonbinding judicial opinion regarding the results of that proceeding.41 In McIntyre v. Wick, the court appeared to authorize judicial involvement in the normally legislative function of determining electoral eligibility for legislative office. However, the court did recognize that the legislature could ignore any judicial opinion on an election contest, and that the legislature could instead conduct its own recount. Yet even though the legislature has exclusive authority to determine who will prevail in any election contest, the Supreme Court has jurisdiction to review irregularities in the tabulation of votes in any recount proceeding. Although the court cannot decide who can be seated as a result of an election, there is obviously a strong likelihood that a court’s nonbinding opinion could influence the legislature’s final decision.42 This possible judicial involvement in legislative affairs, according to the court, stems from the statutory power of the Supreme Court to judge state legislative elections. This statutory power in turn is based on the general grant of appellate jurisdiction contained in Article V, Section 5 of the South Dakota State Constitution. Therefore, in McIntyre, the court had to balance the constitutional provisions of Article III, Section 9, and Article V, Section 5.

40 Id. at 221. 41 Id. at 231. 42 Id. at 219.

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Section 10 Filling Legislative Vacancies The Governor shall make appointments to fill such vacancies as may occur in either house of the Legislature.

A 1948 amendment to Section 10 gave the governor the power of appointment, in place of directing him to issue writs of election to fill vacancies. Section 11 Legislators’ Privilege from Arrest—Freedom of Debate Senators and representatives shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same; and for words used in any speech or debate in either house, they shall not be questioned in any other place.

This section has not been the subject of any significant judicial opinion or commentary. Section 12 Legislators Ineligible for Other Office—Contracts with State or County No member of the Legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased during the term for which he was elected, nor shall any member receive any civil appointment from the Governor, the Governor and senate, or from the Legislature during the term for which he shall have been elected, and all such appointments and all votes given for any such members for any such office or appointment shall be void; nor shall any member of the Legislature during the term for which he shall have been elected, or within one year thereafter, be interested, directly or indirectly, in any contract with the state or any county thereof, authorized by any law passed during the term for which he shall have been elected.

This section exemplifies the anti-corruption concerns of the constitutional framers and reflects an important reform achieved by the framers (Asphalt Surfacing v.  South Dakota Dept. of Transportation, 1986). According to the South Dakota Supreme Court in Pitts v. Larson, the purpose of this section is: To preclude the possibility of any member deriving, directly or indirectly, any pecuniary benefit from legislation enacted by the legislature of which he is a member . . . it is intended to remove any suspicion which might otherwise attach to the motives of the members who advocate the creation of new offices or the expenditure of public funds.

Three elements are needed for a violation of this section. First, there must be a contract with the state or county; second, the contract must be one in which a legislator is directly or indirectly interested; and third, the contract must be authorized by a law passed during the term for which the legislator has been

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elected. The contract prohibition is limited to the legislator’s term and one year thereafter. The prohibition broadly extends to any direct or indirect interest in any contract entered into with the state, including contracts authorized by general appropriation bills. When Section 12 is violated, the contract is wholly void and cannot be enforced (Norbeck and Nicholson Co. v. State, 1913). The court has applied this section to void a contract between the State Board of Regents and a corporation, where a member of the legislature that authorized the contract was also a stockholder in the corporation (Norbeck and Nicholson Co. v. State (II), 1913). This section also prohibits the state from employing state legislators (Palmer v. State, 1898). According to attorney general opinions, a school board member elected to the legislature must resign one of the offices, and no member of the legislature can be appointed to any state office.43 For instance, if a state legislator’s employment with a state university was authorized by a law passed during the legislator’s term, that employment contract is void. However, Section 12 did not void an insurance contract with an insurance agency to insure members of the legislature, even though a partner of the agency had been recently elected to the legislature. This was because the insurance contract was authorized just prior to the time when the partner was to begin serving in the legislature. Because the partner of the agency was not a legislator at the time of the legislative enactment that resulted in the contract, the contract was permissible.44 In Asphalt Surfacing Company v.  South Dakota Dept. of Transportation (1986), the court explained the relationship between Article III, Section 12 and the statutory scheme governing the awarding of contracts to state officers or employees. The court held that the scheme does not violate Section 12 as long as a legislator does not have any interest in a state contract authorized by any law during the legislator’s term. However, under the statute, a present legislator can benefit from a contract with the state if the contract was not authorized during his or her term and the legislator is the lowest responsible bidder. A legislator cannot be insulated from the provisions of Section 12 simply by being the lowest bidder—even if the contract was awarded to the lowest bidder, Section 12 still applies. If a legislator has been out of office more than one year, nothing prohibits his or her contracting with the state. Section 13 Legislative Journals—Recording of Yeas and Nays Each house shall keep a journal of its proceedings and publish the same from time to time, except such parts as require secrecy, and the yeas and nays of

43 Opinion, Attorney General Opinion No. 84-24, 1984 WL 248730; Attorney General Opinion

No. 88-51, 1988 WL 483610. 44 Attorney General Opinion No. 90-45, 1990 WL 596811.

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members on any question shall be taken at the desire of one-sixth of those present and entered upon the journal.

This section, along with Section 14, addresses the procedures regarding enactment of legislation. These sections have been the subject of litigation challenging whether a particular piece of legislation was properly enacted. In challenges to the enactment of a statute, an issue often arises regarding the type of evidence that may be consulted. The sources of official information are the enrolled bills themselves and the legislative journals. A question can be whether the validity of an enrolled bill duly authenticated and approved by the governor, and filed with the proper officer, can be challenged by resorting to legislative journals. This question was addressed in Barnsdall Refining Corp. v.  Welsh (1936), where the court recognized three possible approaches for determining whether the enrolled bill is exclusive evidence of its proper enactment, or whether other sources of evidence can be consulted. The first approach is the enrolled bill rule, which considers the enrolled bill to be exclusive evidence of its proper enactment. Under this rule, courts will not look beyond the enrolled bill to the legislative journals to determine proper enactment. The second approach is the journal entry rule, which incorporates a presumption that the enrolled bill was legally enacted. However, the presumption is not conclusive, and the court may look beyond the enacted bill to determine whether the legislature observed constitutional requirements in the passage of the bill. The third approach is the modified enrolled bill rule, which considers the enrolled bill as conclusive of its proper enactment, except when the constitution expressly prescribes a specific journal entry and an act is being attacked for failure to observe that journal entry requirement. In Barnsdall, the Supreme Court chose to follow the third approach. Thus, whenever any bill is claimed to have been improperly enacted, the court under the modified enrolled bill rule will only look at the journals when there is an allegation that a specific constitutional requirement has been violated. For instance, the court cited six different provisions in the South Dakota constitution that specifically required certain information to be entered in the legislative journals; so when a bill is challenged on the grounds that any one of those six provisions has been violated, the court will look beyond the enrolled bill to the legislative journals. But when there is no allegation that any specific constitutional requirement regarding journal entry has been violated, the enrolled bill duly authenticated and filed in the office of the Secretary of State is conclusive evidence of its proper passage and the correctness of its content. Section 14 Elections Viva Voce In all elections to be made by the Legislature the members thereof shall vote viva voce and their votes shall be entered in the journal.

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The discussion of Section 13 above in part reflects the application of this section. Section 15 Open Legislative Sessions—Exception The sessions of each house and of the committee of the whole shall be open, unless when the business is such as ought to be kept secret.

The discussion of Section 13 above in part reflects the application of this section. Section 16 Adjournment of Legislative Houses Neither house shall without the consent of the other adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.

This section has never been amended and has not been the subject of any significant case law or commentary. Section 17 Reading of Bills Every bill shall be read twice, by number and title once when introduced, and once upon final passage, but one reading at length may be demanded at any time before final passage.

A 1946 amendment reduced the number of readings from three to two and eliminated an absolute requirement that the first and third readings be at length. In addressing claims regarding the legislature’s alleged failure to comply with the requirements of Section 17, the South Dakota Supreme Court applies the modified enrolled bill approach, which holds that an enrolled bill is conclusive evidence of its proper enactment, except as to constitutionally mandated journal entries which are then specifically examined. According to the court in Independent Community Bankers Association v.  State (1984), the modified enrolled bill rule precludes plaintiffs from introducing evidence of the legislature’s alleged failure to comply with the requirements of Section 17, because a journal entry noting compliance with this section is not expressly required by the constitution. Therefore, because the plaintiffs in that case did not allege that any required journal entries were in fact not made, the court did not go beyond the enacted bill and look to the legislative journals, since the enrolled bill was considered conclusive of its contents and proper enactment. This constitutional provision seeks to ensure that lawmakers know the contents of any bill they are considering (Phenix Ins. Co. of Brooklyn, N.Y., v. Perkins, 1905). For instance, if a bill is to make reference to or incorporate

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some other document or source, legislative intent must be clear and expressed. Consequently, if an outside document is to be incorporated into the bill, its language should be expressly contained within that bill and not simply referenced. Section 18 Enacting Clause—Assent by Majority—Recording of Votes The enacting clause of a law shall be:  “Be it enacted by the Legislature of the State of South Dakota” and no law shall be passed unless by assent of a majority of all the members elected to each house of the Legislature. And the question upon the final passage shall be taken upon its last reading, and the yeas and nays shall be entered upon the journal.

This section, as with the previous Sections 13, 14 and 17, deals with the procedures required for legislative enactment. Again, when a party challenges legislation as not being adopted in accordance with the South Dakota constitution, the court follows the modified journal entry rule articulated in Barnsdall Refining Corporation v. Welch (1936). This rule governs the type of evidence that may be consulted to determine a proper enactment issue. In Minnehaha Co. v. South Dakota State Board of Equalization (1970), the court applied the modified journal entry rule to determine whether a particular legislative enactment had complied with Section 18. This modified journal entry rule permits an enrolled bill to be impeached by legislative journals on the ground that it did not receive the necessary majority on final passage, given that Section 18 requires the yeas and nays to be entered on the journal. Final passage of a bill occurs in either house when it receives the required vote taken by the yeas and nays on roll call following last reading of a bill. Moreover, when one house of the legislature approves a bill as it was passed in the other house by the required vote and record, there is not only final passage in that particular branch but final passage of the bill into law. Section 19 Signing of Bills and Resolutions The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the Legislature, after their titles have been publicly read immediately before signing, and the fact of signing shall be entered upon the journal.

The requirement that a bill be signed by the presiding officer of each house is a mandatory requirement and must be complied with before the bill is deemed to be passed by the legislature (Opinion of the Judges, 1969). Consequently, the failure of a bill to have the signature of the presiding officers of both houses is fatal to that bill. Although the constitution does not require a joint resolution to have a title, if a title has been adopted it may be used by the courts to ascertain the

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intention of the two houses in adopting that resolution, in cases where there is doubt as to what that intention was (Lovett v. Ferguson, 1897). The subject of titles of bills, however, is addressed in more detail in Section 21 below. Section 20 Origin of Bills—Amendment in Other House Any bill may originate in either house of the Legislature, and a bill passed by one house may be amended in the other.

This section has never been amended and has not been the subject of any significant commentary or judicial opinion. Section 21 One Subject Expressed in Title No law shall embrace more than one subject, which shall be expressed in its title.

This brief one-sentence section has been the subject of much litigation. Of course, as legislation grows more frequent and complex, it becomes a greater challenge to confine all the elements or provisions of an act to one subject and to properly express that subject in a title. The courts have liberally construed this section so as not to unduly interfere with legislative enactments (Independent Community Bankers Association of South Dakota, Inc. v. State, 1984). As the South Dakota Supreme Court has stated, “Every legislative act is accorded a presumption in favor of its constitutionality and this presumption is overcome only by proof beyond a reasonable doubt that it violates fundamental constitutional principles” (Simpson v. Tobin, 1985). Consequently, South Dakota courts will not apply this provision with a hypercritical interpretation. There is no restriction on the scope of the subject of a legislative enactment, provided that the subject is singular and encompassed by the title. As long as the provisions of an act fairly relate to the one subject, that act will meet the constitutional requirement of a single subject. Section 21 seeks to protect the legislature as much as the public. It protects the legislature by prohibiting bills with titles that give no indication of the provisions contained within them, thereby preventing the legislature from carelessly or unintentionally adopting provisions they do not intend to adopt. It also serves to prevent the combining into one bill of several diverse measures which have no common basis except perhaps their separate inability to achieve passage on their own merits (Accounts Management Inc. v. Williams, 1992). This section protects the public by ensuring that it receives adequate notice of the legislation being considered, thereby preventing the public from being surprised or deceived by legislative activity (Nader 2000 Primary Committee Inc. v. Hazeltine, 2000). Only with adequate notice does

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the public have an effective opportunity to provide input on the legislation being considered. This section contains two requirements:  first, that no law shall embrace more than one subject; and second, that the subject shall be expressed in the title. The single subject requirement of Section 21 is fulfilled if all the provisions of the act relate to a single subject. This includes not only all provisions which are naturally and reasonably connected with the subject, but all measures which will or may facilitate the accomplishment of the purpose of the act. Even though the subject of the act must be single, the provisions to accomplish the objective of the act may be multifarious. Furthermore, there is no requirement that the title serve as an index of the contents of an act. The test of the title’s adequacy is whether the title gives fair and effective notice of the contents of the act. As the court stated in McMacken v.  State (1982), the test is whether the title puts a person on notice of a germane subject in the body of a statute. The more general and comprehensive the title is, the more likely it is to meet the requirements of Section 21 and give proper notice of the contents of the act. General titles tend to put all interested persons on notice as to anything in the body of the act that is germane to the subject expressed (Simpson v. Tobin, 1985). Not only should the title not be misleading or deceptive, but it also must not be so restrictive as to not give notice of all the provisions in the law. When the title is restrictive and confined to certain special features of a particular subject, the natural inference is that other features of the same general subject are excluded (Garrey v. Schnider, 1960). As the court in Garrey v. Schnider recognized, “Our research has brought to light no case which condemns a comprehensive title solely because of its generality.” Section 21 prohibits including in an act any subject matter that is not embraced in the title, but this section does not prohibit making the title broader than the matter actually contained in the body of the act (State ex rel. Smith v.  Jameson, 1945). Furthermore, if a title is sufficiently comprehensive to call attention to the matter contained within the act, courts may not hold the title defective simply because it is not the most appropriate title that could have been selected (Morrow v. Wipf, 1908). Even though courts give great deference when reviewing Section 21 issues, a number of violations have been found. In State v. Matteson (1973), the court held that the title—“An act establishing the office of the Commissioner of Drugs and Substances Control within the Office of the Attorney General of the State of South Dakota to meet the problems of narcotics, drugs and substance abuse”—was not comprehensive enough to fairly apprise the public of provisions in the act creating a comprehensive drug control program, since the title merely advised that a commissioner of drugs and substances control was being created. A violation of Section 21 occurred when an act titled “An Act to Classify the Crimes and Petty Offenses in Titles 33 through 42 of the South

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Dakota Codified Laws” actually declassified the crimes in the Unfair Cigarette Sales Act and repealed prior legislative determinations that the sale of cigarettes at less than wholesale price is unlawful, that contracts made in violation of such law are void, that licensing penalties may be imposed for violations of such law, and that other equitable and monetary remedies may be sought. According to the court, the repeal of all these provisions was not noticed in the bill’s title (South Dakota Association of Tobacco and Candy Distributors v. State, 1979). Another violation of Section 21 occurred when provisions dealing with election contests were included in a law titled “An Act to Provide for Holding of Primary Elections,” since election contests were not part of the holding of an election (Hohn v. Circuit Court of Davison County, 1936). A statute attempting to change, amend, or repeal collective bargaining rights was also found to violate Section 21, since it did not relate to the general subject matter of the bill, which was appropriations (South Dakota Educational Association by and through Roberts v. Barnett, 1998). Reenactment of a law will cure any title defect that appeared in the original act. After a statute has been reenacted as part of the code, it is no longer subject to assault because of a claimed defect in the title of the original act when it was first enacted by the legislature (State v. Matteson, 1973). Section 22 Effective Date of Acts—Emergency Clause No act shall take effect until ninety days after the adjournment of the session at which it passed, unless in case of emergency, (to be expressed in the preamble or body of the act) the Legislature shall by a vote of two-thirds of all the members elected of each house, otherwise direct.

The purpose of this emergency clause is to make an act effective immediately, as of the date of its enactment. The courts have defined emergency as an unforeseen combination of circumstances that call for immediate action (Culhane v. Equitable Life Assurance Society of the United States, 1937). When reviewing a legislative declaration of emergency, courts defer to the judgment of the legislature (City of Pierre v. Siewert, 1935). As long as there is any reasonable basis for the legislature’s declaration of emergency, courts will not set aside that declaration (Gravning v. Zellmer, 1980). This section must be read in conjunction with the initiative and referendum provisions of Section 1. As outlined in the previous discussion of that section, Section 22 cannot operate so as to eliminate the people’s right to initiative and referendum. The legislature cannot avoid subjecting a law to referendum simply by declaring an emergency. The only legislative measures that qualify for a Section 22 declaration of emergency are those that also qualify as an exception to those measures subject to referendum. Since the purpose of the constitutional delay provisions regarding the effective date of legislation is to allow citizens

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time to obtain sufficient signatures to begin the referendum process, only those laws not subject to the referendum are capable of taking effect immediately upon enactment of the law, provided the legislature makes a declaration of emergency (SDDS Inc. v. State, 2002). The question of whether an emergency exists within the meaning of Section 22 is a matter solely for the legislature to decide, so long as the law to which the emergency clause is attached falls within one of the two classes of laws exempted from referendum. However, this latter question of whether the law falls within one of the two referendum exemptions is a matter for the judiciary to decide. For more information, see the discussion concerning initiative and referendum under Article III, Section 1. Section 23 Private and Special Laws Prohibited The Legislature is prohibited from enacting any private or special laws in the following cases: 1. Granting divorces. 2. Changing the names of persons or places, or constituting one person the heir at law of another. 3. Locating or changing county seats. 4. Regulating county and township affairs. 5. Incorporating cities, towns and villages or changing or amending the charter of any town, city or village, or laying out, opening, vacating or altering town plats, streets, wards, alleys and public ground. 6. Providing for sale or mortgage of real estate belonging to minors or others under disability. 7. Authorizing persons to keep ferries across streams wholly within the state. 8. Remitting fines, penalties or forfeitures. 9. Granting to an individual, association or corporation any special or exclusive privilege, immunity or franchise whatever. 10. Providing for the management of common schools. 11. Creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which said officers are elected or appointed. But the Legislature may repeal any existing special law relating to the foregoing subdivisions. In all other cases where a general law can be applicable no special law shall be enacted.

This section is another provision limiting the power of the state legislature. It outlines a list of specific laws the legislature is prohibited from enacting. However, the prohibitions in Section 23 do not apply to special laws enacted under the authority of other constitutional provisions.

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Under Section 23, a law must apply equally to all members of the class subject to the law; it must operate equally on all members of the class when they come within the scope and purpose of the law (Behrns v.  Burke, 1975). For instance, if a law grants a sales tax immunity to some retailers, it must grant that immunity to a broad class of retailers (State ex rel. Van Emmerik v. Janklow, 1981). The legislature may generally define any class it wishes, and so long as all members of that class are treated alike, the prohibition against private or special laws is not violated. Not only can the legislature create any class it wishes, but it can also give special benefits to particular classes. Although the grant of a strictly private benefit is generally prohibited by Section 23, not all special or exclusive privileges are prohibited. Even the granting of special privileges that are monopolistic in character is permissible if the primary purpose of the grant is not for the private benefit of the grantees but for the promotion of the public interest. This presumes, of course, that the statute operates uniformly on all persons or subjects within the designated class (State v. Smith, 1998). Thus, if an act serves a proper public purpose, the fact that it might confer a direct, private benefit on some individual or individuals does not make it invalid. The most frequently litigated provision of Section 23 appears to be Paragraph 9, which states that the legislature is prohibited from enacting any private or special laws “granting to an individual, association or corporation any special or exclusive privilege, immunity or franchise whatever.” In interpreting this provision, the court has held that a statute appropriating $50,000 to a council promoting technical and marketing assistance to producers of certain crops did not grant a special or exclusive privilege in violation of Section 23. Even though there was a definite benefit to certain groups, the appropriation had a public purpose (Associated General Contractors of South Dakota, Inc. v. Schreiner, 1992). Similarly, an act authorizing the creation of tax incremental districts was not a constitutionally prohibited special law, since the act applied to all incorporated cities and towns within the state and uniformly affected all cities falling within respective population categories (Meierhenry v. City of Huron, 1984). A determination of whether a statutory provision serves a public purpose is for the legislature to make, and the courts will not override that determination if it can be supported on any reasonable ground. In Knowles v. U.S. (1993), the court ruled that a damages statute did not grant a special or exclusive privilege to medical practitioners, since it applied equally to all members of the appropriate class—e.g., all medical malpractice victims and all practitioners of the medical and healing arts. In Matter of Certain Territorial Electric Boundaries v. Northwestern Public Service Company (1979), the court found that a statute setting territorial boundaries for electric utilities was not a private law granting a special or exclusive benefit to electric utilities in violation of Section 23. The court held that the law applied equally to all members of the designated

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class—all electric utilities within the state of South Dakota. In First National Bank of Halstead (1930), the court upheld a statute exempting money or other benefits paid by fraternal benefit societies from liability for debts of a member or beneficiary of that society. The court held that the law was not a special law, since it applied equally to all fraternal benefit societies. Similarly, legislation relating to ethanol production payments to ethanol producers was permissible under Section 23, since all ethanol producers within the created class were treated uniformly (Associated General Contractors of South Dakota, Inc. v. Schreiner, 1992). The provision within Section 23 forbidding the legislature from enacting any private law “creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which said officers are elected or appointed” does not prevent a reduction of salaries of county officers elected after a statute reducing salaries went into effect (State ex rel. Lamm v. Spartz, 1934). Section 23 only forbids the salaries of constitutional officers to be changed by a statute enacted during the term for which that officer was elected. The last sentence of Section 23 states, “In all other cases where a general law can be applicable no special law shall be enacted.” As the South Dakota Supreme Court has interpreted this provision, it is the legislature’s privilege to determine when a general law might be applicable (Viland v. Board of Education, 1916). Section 24 Release of Debt to State or Municipality The Legislature shall have no power to release or extinguish, in whole or in part, the indebtedness, liability or obligation of any corporation or individual to this state, or to any municipal corporation therein.

The South Dakota Supreme Court has had relatively little opportunity to interpret and apply this section. The court found a violation of Section 24 when a statute released all rights that the state possessed in certain lands (State v. Mellette, 1902). However, the court has ruled that a modification of child support arrearages owed to the state by a divorced father did not violate Section 24, since those child support arrearages had never been absolute debts immune from judicial alteration (State ex rel. Larsgaard v. Larsgaard, 1980). As the court reasoned, child support payments were never final and unchangeable, since past due installments were always subject retroactively to modification or recall by the trial court. Furthermore, the judiciary is not an arm or agent of the legislature, and hence not bound by Section 24. A statute providing for reconveyance of land acquired by a county in tax proceedings back to the former owners of that land, without payment of interest or penalties, did not violate Section 24 (Read v. Jerauld County, 1945). The court held that interest and penalties were not included in the category of

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“indebtedness, liability, or obligation.” According to the court, the penalties and interest charged for the failure to pay taxes did not qualify as debts to the state, but in reality were simply penalties and hence not covered by Section 24. Section 25 Games of Chance Prohibited—Exceptions The Legislature shall not authorize any game of chance, lottery, or gift enterprise, under any pretense, or for any purpose whatever provided, however, it shall be lawful for the Legislature to authorize by law, bona fide veterans, charitable, educational, religious or fraternal organizations, civic and service clubs, volunteer fire departments, or such other public spirited organizations as it may recognize, to conduct games of chance when the entire net proceeds of such games of chance are to be devoted to educational, charitable, patriotic, religious, or other public spirited uses. However, it shall be lawful for the Legislature to authorize by law a state lottery or video games of chance, or both, which are regulated by the state of South Dakota, either separately by the state or jointly with one or more states, and which are owned and operated by the state of South Dakota, either separately by the state or jointly with one or more states or persons, provided any such video games of chance shall not directly dispense coins or tokens. However, the Legislature shall not expand the statutory authority existing as of June 1, 1994, regarding any private ownership of state lottery games or video games of chance, or both. The Legislature shall establish the portion of proceeds due the state from such lottery or video games of chance, or both, and the purposes for which those proceeds are to be used. SDCL 42-7A, and its amendments, regulations, and related laws, and all acts and contracts relying for authority upon such laws and regulations, beginning July 1, 1987, to the effective date of this amendment, are ratified and approved. Further, it shall be lawful for the Legislature to authorize by law, limited card games and slot machines within the city limits of Deadwood, provided that 60% of the voters of the City of Deadwood approve legislatively authorized card games and slot machines at an election called for such purpose. The entire net Municipal proceeds of such card games and slot machines shall be devoted to the Historic Restoration and Preservation of Deadwood.

This section has been the subject of several amendments. A 1970 amendment authorized games of chance conducted by public spirited organizations. A 1986 amendment added the second and third sentences to this section. And a 1994 amendment rewrote this section and authorized video lottery. Gaming in South Dakota has had an interesting history. During the Black Hills Gold Rush in the late nineteenth century, gambling was pervasive in Deadwood.45 And even though gaming was unconstitutional under Section 25, it continued to exist in Deadwood until 1947. To combat this illegal Brooke DeLores Swier, Gaming Goldmines Grow Green:  Limited Gaming, Good Faith Negotiations, and the Economic Impact of the Indian Gaming Regulatory Act in South Dakota, 54 S.D. L. Rev. 493 (2009). 45

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gambling, government law enforcement officers in 1947 raided Deadwood nightclubs, confiscating their gambling equipment. This temporarily stopped the gambling in Deadwood.46 However, gaming was revived and continued in Deadwood until the 1960s, when private gambling clubs were once again shut down and their machines seized.47 The campaign to legalize gambling took shape during the 1980s, when supporters argued that legalized gaming would invigorate the economy and help restore many of Deadwood’s historic buildings.48 This campaign advocated a constitutional amendment legalizing limited casino-style gaming within the city of Deadwood. Voters approved the amendment in 1988, and the legislature later passed a law allowing limited card games and slot machines and creating a detailed regulatory system over Deadwood’s gambling activities.49 Around the same time, Congress passed the Indian Gaming Regulatory Act. Under this Act, if a type of gaming was permitted by state law, a federally recognized Indian tribe could conduct the same type of gaming on tribal land. Since 1990, the State of South Dakota has executed separate but similar gaming agreements with each of the state’s federally recognized Indian tribes. Thus, as a result of both the 1988 amendment to the South Dakota constitution and the Indian Gaming Regulatory Act, all of South Dakota’s Indian tribes have conducted varied types of gambling activities since the early 1990s. 50 However, legalized gaming in South Dakota had actually begun two years earlier than the 1988 Deadwood Amendment. After a statewide referendum was passed in 1986 authorizing a state lottery, the legislature set up the South Dakota Lottery. In 1989, the legislature approved the nation’s first state video lottery system. 51 Despite opposition to this video lottery, voters in 1992 rejected an initiated measure to repeal it. In Poppen v.  Walker (1994), the South Dakota Supreme Court held that video lottery was unconstitutional, ruling that video lottery was not a lottery but rather a game of chance prohibited by Section 25. After a thorough review of the history of state lotteries and the 1986 constitutional amendment authorizing a state lottery, the court ruled that video lottery was not included within the definition of lottery as set forth in Section 25. The court ruled that the term lottery appearing in Section 25 had a narrow definition, due to the public awareness of the history of graft, corruption, and crime associated with lotteries across the country. The lottery permitted by Section 25 contemplated the sale of tokens or tickets to large numbers of people for the chance to share in 46 Id. at 494. 47 Id. 48 Id. at 507. 49 Id. at 506–08. 50 Id. at 509–11. 51 Id. at 505.

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the distribution of prizes for the purpose of raising public revenue. Because video lottery did not meet this definition, the court ruled it unconstitutional (Poppen v. Walker). After the court in Poppen shut down video lottery in South Dakota, a constitutional amendment authorizing video lottery was approved by the voters in 1994. On two subsequent occasions in 2000 and 2006, voters rejected efforts to repeal video lottery. In a 2008 opinion, the attorney general stated that municipalities could not regulate video lottery beyond the limits specifically authorized by the legislature. Because of the limited gaming allowed by Section 25, there are many forms of gambling that are illegal in South Dakota. The court has ruled that these illegal gaming activities—e.g., bookmaking—cannot be licensed or taxed, since in doing so the legislature would effectively authorize that type of gaming and treat it as a legitimate source of revenue (Bayer v. Johnson, 1984). Section 26 Municipal Powers Denied to Private Organizations The Legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property, effects, whether held in trust or otherwise, or levy taxes, or to select a capital site, or to perform any municipal functions whatever.

This section generally relates to the separation of powers doctrine laid out in Article III, Section 1, which states that the legislature cannot delegate its legislative powers and authority to any other governmental entity or branch. As a further way of restricting the legislature’s ability to delegate certain powers or functions, Section 26 lists more specific limitations on that ability. Although the legislature cannot delegate its legislative powers, it can delegate quasi-legislative powers to executive officers and agencies if the legislature adopts standards or guidelines for that officer or agency to use in the exercise of the delegated power. However, Section 26 outlines certain powers that the legislature cannot delegate, no matter how many guidelines it may attach to that delegation. Section 26 was copied from a similar Pennsylvania constitutional provision (City of Sioux Falls v. Sioux Falls Regional Emergency Medical Services Authority, 1975). The purpose of this section was to “cure the evil of interference with municipal functions by the legislature” (Id.). There are two elements to an unconstitutional delegation under Section 26. First, the delegation has to be to a special commission, private corporation, or association; if the entity receiving the delegation of power is a governmental agency or body, there is no violation of Section 26 (In the Matter of Oahe Conservancy Subdistrict, 1971). Second, the delegation must be one of a municipal function. Thus, an issue often arises as to whether the entity to which the

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power is being delegated is in fact performing a municipal function. In determining whether a municipal function exists, the South Dakota Supreme Court has adopted a balancing test, which strives to serve both the rights of local self-government and the interests of effective and efficient government. This balancing approach used to determine whether a function is a municipal one considers a number of factors pertinent to the specific legislation at issue (Specht v.  City of Sioux Falls, 1995). The primary factor is whether the legislation will interfere with the ability of the people within the municipality to control the substantive policies being enacted by the entity exercising the delegated powers. Essentially, Section 26 serves to prevent interference with local self-government. This section is called a “ripper clause,” the purpose of which is to protect the rights of local self-government with respect to municipal functions and to prohibit delegation of municipal functions to special public or private commissions. There have been a number of ways in which legislative enactments have violated Section 26. In Specht v. City of Sioux Falls (1995), the court found that a legislative enactment authorizing the creation of regional emergency medical services authority violated Section 26 because it involved an improper delegation of municipal functions to a special commission, the Sioux Falls Regional Emergency Medical Services Authority. According to the court, the oversight and regulation of emergency medical services was a municipal function. Particularly problematic of this delegation was that it interfered with the ability of municipal citizens to control the substantive policies that uniquely affected them, since neither city officials nor voters had any power to remove the commissioners or control the taxing authority of those commissioners. Basically, once the commission was created, it was unaccountable to municipal voters. A statute mandating that the arbitration provisions of the American Institute of Architects standard form automatically become part of a municipal contract for services was found to violate Section 26. In City of Chamberlain v. R. E. Lien, Inc. (1994), the court recognized that municipalities have the freedom to enter into contracts for binding arbitration, but ruled that a state statute imposing binding arbitration upon a municipality was unconstitutional. Such a binding arbitration clause amounted to a delegation of a municipality’s authority to contract to a special commission, private corporation or association. In City of Chamberlain, the standardized form of the American Institute of Architects (a private association), through its incorporation into municipal contracts, essentially dictated to the city a host of contractual provisions. Similarly, in Schryver v. Schirmer (1969), the court overturned an ordinance tying the future salaries of city firefighters and police to a yearly wage scale formulated by trade unions and private contractors. This ordinance was an unconstitutional delegation of legislative power, because it delegated to private persons and agencies the power to fix the salaries of municipal officers and employees.

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With respect to the first factor in Section 26 cases—e.g., whether the entity to which the power is being delegated is a special commission, private corporation, or association—the court in Oahe Conservancy Subdistrict v. Janklow (1981) found that a water and natural resources board created by state statute was not a special commission within the meaning of Section 26. Although the subdistrict was not a true municipal corporation, it was vested with some of the powers and attributes of a municipality and hence could be categorized as “quasi-municipal.” The court thus declared the conservancy subdistrict to be a governmental agency, which was not precluded by Section 26 from being delegated the powers it was delegated. Section 27 Suits against the State The Legislature shall direct by law in what manner and in what courts suits may be brought against the state.

The sovereign immunity of the state of South Dakota is recognized in Article III, Section 27. 52 This doctrine holds that the state cannot be sued unless it has given its consent or has otherwise waived its immunity from suit (City of Rapid City v. Boland, 1978). Sovereign immunity can only be abrogated by the legislature, not the courts. Without an express statutory waiver of sovereign immunity, the courts must strictly adhere to this constitutionally mandated doctrine (Kringen v. Shea, 1983). Under the doctrine of sovereign immunity, which has roots in English common law, the state legislature has power to determine when and under what circumstances the state and its governmental subdivisions and agencies may be sued. The sovereign immunity contained in Article III, Section 27 differs from the state immunity provided for in the Eleventh Amendment of the United States Constitution, which relates to the immunity of states from being sued in federal court. 53 Although sovereign immunity can only be waived by explicit action of the state legislature, the doctrine must be viewed in conjunction with other constitutional provisions allowing certain suits against the state. For instance, one notable exception to the sovereign immunity of the state is found in Article VI, Section 13 of the South Dakota constitution, which provides for just compensation for any public taking of private property. Another constitutional provision with which sovereign immunity must be considered is Article VI, Section 20, which is the “open courts” provision. This provision states that where a cause of action is implied or exists at common law without statutory 52 See generally Celia Miner, An Analysis of South Dakota’s Sovereign Immunity Law: Governmental

v. Official Immunity, 28 S.D. L. Rev. 317 (1983). 53 Garry, An Entrenched Legacy, 84–86.

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abrogation, a plaintiff has a right to litigate that course of action in the courts (Simons v. Kidd, 1949). The open courts provision guarantees that state courts shall be open and shall afford a remedy to those citizens who have been wronged or injured. Thus, operating alongside the constitutional recognition of sovereign immunity is another constitutional provision providing injured citizens access to the courts. The duty of the courts is to reconcile and balance these two constitutional provisions. Although the state cannot be sued unless it has expressly waived its sovereign immunity, the open courts provision of the constitution must also operate to ensure access of injured individuals to the courts for certain causes of action. One way the courts have attempted to draw a balance between the common law tradition of open courts and the doctrine of sovereign immunity is to distinguish between ministerial or discretionary acts by government employees, with only the latter being immune from liability. By subjecting state employees to liability for their ministerial functions, courts have tried to uphold the open courts provision while not infringing on the sovereign immunity of the state. In Kyllo v. Panzer (1995), for instance, the court held that extending sovereign immunity to state employees performing ministerial functions would violate the open courts provision by wholly abrogating certain common law actions guaranteed by the constitution. On the other hand, since suits for discretionary actions never did exist at common law, such suits can be immune from liability, as the open courts provision is only violated if the cause of action would have existed at common law (Gasper v. Freidel, 1990). Therefore, because of the open courts provision, the sovereign immunity provided for in Section 27 does not extend to a state employee unless: (1) the action is really one against the state, and the employee is sued in his representative capacity only, or (2) the employee is engaged in the performance of a discretionary function (Bego v. Gordon, 1987). Since sovereign immunity is a privilege that resides within the sovereign entity itself—namely, the state—counties and municipalities, as creations of the state, receive a derivative immunity as agents of the state (Conway v. Humbert, 1966). Sovereign immunity, which belongs to the state, does not extend to every collective or public enterprise. However, the legislature does have the power to regulate the immunity of municipalities and school districts. A municipality enjoys sovereign immunity only when it is engaged in a governmental function imposed upon it as representative of the state, not when it exercises proprietary functions aimed at benefitting itself. Municipalities have no sovereignty of their own (Oien v. City of Sioux Falls, 1986). Notwithstanding the doctrine of sovereign immunity, personal liability of government employees was nonetheless allowed in the tradition of American common law. Sovereign immunity applied only to the state, not to individuals. For instance, public employees could be personally liable for their negligent actions, even when sovereign immunity was available to their employers. The

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state’s sovereign immunity cannot be circumvented simply by suing an individual agent of the state and thereby subjecting the state to liability. 54 A state’s sovereign immunity only extends to a state employee when the lawsuit is in reality against the state, with the employee being sued in his representative capacity only, or when the employee is engaged in the performance of a discretionary function. An action is against the state where the state is the real party against which relief is sought, and where a judgment for the plaintiff, although nominally against the individual, would subject the state to liability. But if an adverse decision would not subject the state to liability, then the suit is not barred by sovereign immunity. Whether immunity is available to a government employee depends upon the nature of the function exercised by the employee. Immunity only extends to an employee who, while acting within the scope of his or her employment, exercises a discretionary function (National Bank of South Dakota v.  Leir, 1982). Consequently, to determine whether a state’s sovereign immunity will also apply to an individual, the court must determine whether the lawsuit is really an action against a state and whether the employee was performing a discretionary function. The rule that a public employee is liable for negligently performing ministerial acts was first recognized by the South Dakota Supreme Court in 1896 (State v. Ruth, 1896). In 1983, the South Dakota legislature passed a statute expanding the scope of sovereign immunity to all officers, employees or agents of the state, regardless of whether or not they performed ministerial or discretionary functions. This expansion of immunity to state employees performing ministerial functions, however, was held to violate the open courts provision of the South Dakota constitution, since the legislature does not have authority to wholly abrogate such common law actions guaranteed by that provision. Government employees exercising discretionary functions are given immunity because such functions are integral to the state’s sovereign policymaking power. The court has laid out seven factors to be considered when determining whether a certain function is discretionary. Those factors are: 1. The nature and importance of the function the officer is performing; 2. The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of a coordinate branch of government; 3. The extent to which the imposition of liability would impair the free exercise of his discretion by the officer;

Paul H. Linde, Kyllo v.  Panzer:  The South Dakota Supreme Court Declares Statutes Unconstitutional Which Limited State Employee Liability, 42 S.D. L. Rev. 336 (1997). 54

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4. The extent to which the ultimate financial responsibility will fall on the officer; 5. The likelihood that harm will result to members of the public if the action is taken; 6. The nature and seriousness of the type of harm that may be produced; 7. The availability to the insured party of other remedies and other forms of relief (Kyllo v. Panzer, 1995). A ministerial act, on the other hand, is the simple carrying out of a policy that has already been established (Wulf v. Senst, 1991). Permitting state employees to be held liable for the negligent performance of such acts does not compromise the sovereignty of the state. However, determining whether an act is discretionary or ministerial requires an individualized inquiry and depends on the facts of each particular case. In High-Grade Oil Company Inc. v. Sommer (1980), sovereign immunity was accorded to the function of designing a highway; whereas in Bryant v. Butte County (1990), a county’s duty to adequately maintain county roads was deemed to be ministerial and not discretionary. Although highway repair is generally considered to be ministerial in nature, the court has held that the state is immune from a suit arising from the construction and maintenance policies of highways. In National Bank of South Dakota v. Leir (1982), two social workers were held personally liable for their negligent placement and supervision of children in foster care, since these functions were ministerial and not discretionary. The court found that the criteria for placement and the standards for follow-up supervision of foster children had been previously established, and that social workers were merely required to carry out those standards—they did not make policy decisions involving foster care placement. A detailed definition of ministerial functions was provided by the court in Wulf v. Senst (1991): Ministerial act is defined as absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed designated facts or the execution of a set task imposed by a law prescribing and defining the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion, being a simple, definite duty arising under and because of stated conditions and imposed by law. A  ministerial act envisions direct adherence to a governing rule or standard with a compulsory result. It is performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action. In short, once it is determined that the act should be performed, subsequent duties may be considered ministerial. If there is a readily ascertainable standard by which the action of the government servant may be measured, whether that standard is written or the product of experience, it is not within the discretionary function exception.

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In distinguishing ministerial from discretionary acts, the court puts great emphasis on whether the imposition of liability will have an adverse effect on the functioning of the governmental entity. For instance, in Gasper v. Freidel (1990), the court found that the imposition of liability on athletic coaches for injuries incurred by student athletes would make it nearly impossible for school districts to hire coaches, since those individuals would not be immune from lawsuits. The South Dakota Supreme Court has held that the extension of sovereign immunity beyond the traditional boundaries of discretionary/ministerial and governmental/proprietary are unconstitutional under the “open courts” provision of the South Dakota constitution (Bego v. Gordon, 1987). Consequently, this governmental/proprietary distinction is another distinction that must be considered when determining the application of sovereign immunity doctrine. Many states, including South Dakota, recognize that the doctrine of sovereign immunity applies only to the governing acts of the state, and not to any commercial or proprietary acts (Aune v. B-Y Water District, 1990). In distinguishing between governmental and commercial or proprietary activity, the test is not whether the activity is intended to or does produce a profit; the test is whether the activity is something only the state can accomplish or whether it could be effectively accomplished by a private enterprise. For instance, the operations of a water district and the delivery of water services are not an inherently governmental activity that only the state can effectively accomplish, and are therefore outside the scope of sovereign immunity. According to the court in Aune v. B-Y Water District, a water district functions more like a cooperative than a state agency, since it is controlled by the land owners and subscribers in the district. Moreover, subjecting a water district to liability would not interfere with the state’s ability to govern, primarily because the state treasury could not be used to pay any liability. Further buttressing the conclusion that a water district was engaged in a proprietary function was the presence of “independent proprietary functions,” such as the ability to acquire and dispose of real or personal property, the ability to disperse funds upon the approval of the district’s board of directors, and the ability to borrow money and incur indebtedness for any corporate purpose. These extensive independent powers made the water user district more like a private commercial enterprise, compelling the conclusion that it should be treated the same as any other commercial enterprise. According to the court, “Where the state elects to operate a business enterprise solely for commercial purposes, it ought not be permitted to avoid its legal responsibility by invoking the doctrine of governmental immunity.” The distinction between governmental functions and proprietary functions is to be determined on a case-by-case basis, after an analysis of the particular facts of each case (Conway v. Humbert, 1966). What is important is the nature of the duty or function performed, rather than the character or title of

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the agent executing the particular function. The state’s sovereign immunity cannot shield the functions of an enterprise engaged in a commercial or proprietary function. In Oien v. City of Sioux Falls (1986), the court ruled that the construction, maintenance, and operation of parks, playgrounds, and pools have traditionally been viewed as a proprietary function, and hence cannot be cloaked with sovereign immunity. The sovereign immunity of the state can be waived. Section 27 gives the legislature power to regulate sovereign immunity. However, a waiver of sovereign immunity can occur only with a clear and express statutory waiver (Arcon Construction Company v.  South Dakota Cement Plant, 1984). Acting under the authority of Section 27, the legislature can impose conditions on any waiver of sovereign immunity. One such condition may relate to the purchase of liability insurance and the extent of coverage of that insurance (In re Request for Opinion of Supreme Court, 1985). But simply defending a suit does not constitute a waiver of sovereign immunity; nor does the establishment of a self-insurance system or the state’s participation in a risk-sharing pool necessarily waive sovereign immunity. 55 With respect to lawsuits arising out of the state’s ownership and management of a cement plant, the court ruled that when the legislature enacted the Uniform Commercial Code it expressly waived sovereign immunity whenever the cement plant entered into contracts for sale of goods. These contracts were governed by the UCC, which grants specific rights and remedies to a buyer against a breaching seller; therefore, when such contracts formed the basis of a lawsuit, they were not covered by sovereign immunity (Arcon Construction Company v. South Dakota Cement Plant, 1984). Generally, sovereign immunity can be waived when a public entity enters into contracts giving the other party a right of action against it, or when the legislature enacts conditions under which lawsuits would be permitted (Wilson v. Hogan, 1991). Section 28 Bribery and Corrupt Solicitation of Officers—Compelling Testimony— Immunity from Prosecution Any person who shall give, demand, offer, directly or indirectly, any money, testimonial, privilege or personal advantage, thing of value to any executive or judicial officer or member of the Legislature, to influence him in the performance of any of his official or public duties, shall be guilty of bribery and shall be punished in such manner as shall be provided by law. The offense of corrupt solicitation of members of the Legislature, or of public officers of the state, or any municipal division thereof, and any effort towards solicitation of said members of the Legislature, or officers to influence their official actions shall be defined by law, and shall be punishable by fine and imprisonment. 55 Id. at 338–39.

A r t ic l e I I I   n   91 Any person may be compelled to testify in investigation or judicial proceedings against any person charged with having committed any offense of bribery or corrupt solicitation, and shall not be permitted to withhold his testimony upon the ground that it may criminate himself, but said testimony shall not afterwards be used against him in any judicial proceeding except for bribery in giving such testimony, and any person convicted of either of the offenses aforesaid shall be disqualified from holding any office or position or office of trust or profit in this state.

This section has never been amended and has not been the subject of any significant case law or commentary. Section 29 Legislative Powers in Emergency from Enemy Attack Notwithstanding any general or special provisions of the Constitution, in order to insure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, the Legislature shall have the power and the immediate duty (1)  to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, and (2) to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations. In the exercise of the powers hereby conferred the Legislature shall in all respects conform to the requirements of this Constitution except to the extent that in the judgment of the Legislature so to do would be impracticable or would admit of undue delay.

This section was added to the constitution in 1960. There has been no significant commentary or case law interpreting or applying this section. Section 30 Power of Committee of Legislature to Suspend Administrative Rules and Regulations The Legislature may by law empower a committee comprised of members of both houses of the Legislature, acting during recesses or between sessions, to suspend rules and regulations promulgated by any administrative department or agency from going into effect until July 1 after the Legislature reconvenes.

This section was added to the constitution in 1980. There has been no significant commentary or case law interpreting or applying this section. This section does not confer a general legislative veto. Other than suspending an administrative rule, the legislature does not have a more general veto power. Section 31 Convening of Special Sessions upon Petition In addition to the provisions of Article IV, Section 3, the Legislature may be convened in special session by the presiding officers of both houses upon

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the written request of two-thirds of the members of each house. The petition of request shall state the purposes of the session, and only business encompassed by those purposes may be transacted.

This section was added to the constitution in 1990. There has been no significant commentary or case law interpreting or applying this section. Section 32 Term Limitations for United States Congressmen Commencing with the 1992 election, no person may be elected to more than two consecutive terms in the United States senate or more than six consecutive terms in the United States house of representatives.

This section was the result of an initiated amendment adopted in 1992. It was adopted at a time when term limitations were becoming popular in a number of states across the country. There has been no significant case law interpreting or applying this section.

Article IV Executive Department

Section 1 Executive Power The executive power of the state is vested in the Governor.

The entire Article IV was revised in 1972 and approved by the voters by a nearly two-to-one margin. The 1972 revision reorganized this Article and made numerous changes throughout it. The revision also deleted a number of previous sections, including the former Section 2, relating to improper influence by the governor on legislative actions. The purpose of the 1972 amendments and revisions was to make the executive branch more efficient and responsible (Barnhart v. Herseth, 1974). Although the 1972 revision rewrote most of Article IV, it made only minor changes in Section 1.  Interpreting the 1972 revisions, the South Dakota Supreme Court ruled that the governor’s constitutional power to make changes in the organization of offices, boards, commissions, and agencies was not limited by constitutional requirements that all state executive and administrative offices, boards, agencies, and commissions, as well as their respective functions, be allocated by law among and within not more than twenty-five principal departments (Opinion of the Justices, 1973).

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Section 2 Qualification, Election and Term The Governor and lieutenant governor must be citizens of the United States, have attained the age of twenty-one years, and be residents of the State of South Dakota for two years preceding their election. They shall be jointly elected for a term of four years at a general election held in a nonpresidential election year. The candidates having the highest number of votes cast jointly for them shall be elected. Commencing with the 1974 general election, no person shall be elected to more than two consecutive terms as Governor or as lieutenant governor. The election procedure shall be as prescribed by law.

The 1972 amendment combined within this new Section 2 provisions included in the former Sections 1, 2, and 3. The 1972 amendments also deleted requirements that the governor and lieutenant governor be qualified electors and at least thirty years of age, increased the term of office from two to four years with elections in non-presidential years, provided for joint election of the two officers and limiting them to two consecutive terms of office, eliminated a prohibition against holding other office during the term for which elected, and deleted provisions for joint election by the legislature in the event of a tie vote. A 1998 amendment lowered the governor’s and lieutenant governor’s age requirement to twenty-five years. Section 3 Powers and Duties of the Governor The Governor shall be responsible for the faithful execution of the law. He may, by appropriate action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty or right by any officer, department or agency of the state or any of its civil divisions. This authority shall not authorize any action or proceedings against the Legislature. He shall be commander-in-chief of the armed forces of the state, except when they shall be called into the service of the United States, and may call them out to execute the laws, to preserve order, to suppress insurrection or to repel invasion. The Governor shall commission all officers of the state. He may at any time require information, in writing or otherwise, from the officers of any administrative department, office or agency upon any subject relating to the respective offices. The Governor shall at the beginning of each session, and may at other times, give the Legislature information concerning the affairs of the state and recommend the measures he considers necessary. The Governor may convene the Legislature or either house thereof alone in special session by a proclamation stating the purposes of the session, and only business encompassed by such purposes shall be transacted. Whenever a vacancy occurs in any office and no provision is made by the Constitution or laws for filling such vacancy, the Governor shall have the power to fill such vacancy by appointment.

A r t ic l e I V   n   9 5 The Governor may, except as to convictions on impeachment, grant pardons, commutations, and reprieves, and may suspend and remit fines and forfeitures.

The 1972 amendments combined provisions of the former Sections 4, 5, and 8 into this new Section 3. The 1972 changes also included: an entirely new third paragraph; an insertion into the fifth paragraph of the authority to convene either house of the legislature alone in special session; and a deletion from the final paragraph of provisions formerly contained in Section 5 for a board of pardons and parole, for legislative clemency in cases of treason and for reports to the legislature on cases of executive clemency. Although relatively few supreme court interpretations or applications of this section have occurred, a great majority of the opinions that have been issued relate to the governor’s power to pardon and parole and the executive power to maintain, regulate, and control a state militia. The current constitutional text on the pardon power underwent significant revision in the 1972 amendments (Doe v. Nelson, 2004). In Doe v. Nelson, the South Dakota Supreme Court held that the constitutional power of the governor to grant pardons, while admittedly broad, is not unlimited. The issue presented in Doe was whether the governor had the authority to seal or keep confidential pardon orders. To resolve this issue, the court examined the history and text of Section 3, which on its face appeared to provide the governor with an unrestrained clemency power. However, after examining the drafting history, the court narrowly construed Section 3 and ruled that the governor lacked the authority to independently seal pardons. The court also held that legal restrictions on the authority to seal pardons did not unconstitutionally limit executive pardoning powers. The court in Doe recognized that the governor’s pardoning power did not include the ability to determine how the pardon records were to be filed. Because this power had not been granted through Section 3, the court ruled that the legislature had not infringed upon executive powers by enacting laws regarding the public’s access to pardon records thereby restricting the governor’s ability to seal those records. Despite the history of distrust of territorial governors and a desire to limit the executive branch, South Dakota followed the trend of other states being admitted in the late nineteenth century and placed the clemency power in the executive branch. Indeed, such an executive pardoning power had existed from the beginning of the Dakota Territory. 56 In 1862, the first session of the Dakota Territorial Legislature had given the territorial governor a broad grant of clemency power. 57 However, whereas the executive had traditionally See 1 Constitutional Debates 144 (1907); Eric Johnson, Doe v. Nelson: The Wrongful Assumption of Gubernatorial Plenary Authority Over the Pardoning Process, 50 S.D. L. Rev. 156, 171 (2005). 57 Law of May 14, 1962, Chapter 64, Section 1, 1862 Dakota Territorial Laws, Chapter 64, 404; 50 S.D. L. Rev. 171. 56

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enjoyed broad clemency powers, the court in Doe recognized another tradition of making gubernatorial pardons a matter of public record. 58 According to the court, the South Dakota constitution granted a more restrictive executive pardoning power than had been possessed by the territorial governor. 59 Finding that the constitutional text did not confer power to seal such records, the court ruled that Section 3 likewise did not empower the governor to dictate the procedures necessary to seal a pardon order. Moreover, historically, governors had never possessed the ability to grant secret pardons. Thus, since the state constitution did not give an unrestrained power to the governor to grant secret pardons, the ability of the governor to seal those pardons could be regulated by the state legislature. In a much earlier decision, the South Dakota Supreme Court held that the pardon power was, and always had been, an executive function (State ex rel. Payne v. Anderson, 1921). As such, according to the court, a power given to the judiciary to indefinitely suspend the execution of a sentence violates the pardon power clause by interfering with the executive’s power under that clause. Section 4 Veto Power Whenever the Legislature is in session, any bill presented to the Governor for signature shall become law when the Governor signs the bill or fails to veto the bill within five days, not including Saturdays, Sundays, or holidays, of presentation. A vetoed bill shall be returned by the Governor to the Legislature together with the Governor’s objections within five days, not including Saturdays, Sundays, or holidays, of presentation if the Legislature is in session or upon the reconvening of the Legislature from a recess. Any vetoed bill shall be reconsidered by the Legislature and, if two-thirds of all members of each house shall pass the bill, it shall become law. Whenever a bill has been presented to the Governor and the Legislature has adjourned sine die or recessed for more than five days within five days from presentation, the bill shall become law when the Governor signs the bill or fails to veto it within fifteen days after such adjournment or start of the recess. The Governor may strike any items of any bill passed by the Legislature making appropriations. The procedure for reconsidering items struck by the Governor shall be the same as is prescribed for the passage of bills over the executive veto. All items not struck shall become law as provided herein. Bills with errors in style or form may be returned to the Legislature by the Governor with specific recommendations for change. Bills returned shall be treated in the same manner as vetoed bills except that specific recommendations for change as to style or form may be approved by a majority vote of all the members of each house. If the Governor certifies that the bill conforms with the Governor’s specific recommendations, the bill shall become law. If the Governor fails to certify the bill, it shall be returned to the Legislature as a vetoed bill. 58 50 S.D. L. Rev., 171. 59 Id.

A r t ic l e I V   n   9 7

The 1972 amendments combined in this section provisions previously contained in former Sections 9 and 10. The 1972 amendments deleted a requirement that vetoed bills be returned to the house of origin and be first reconsidered there. (It should be noted that initiated and referred measures are not subject to veto powers, pursuant to Article III of the South Dakota State Constitution.) The amendments also deleted a requirement for recording of the votes on reconsideration of veto bills, and added an entirely new fourth paragraph concerning bills with errors in style or form. According to the South Dakota Supreme Court, under the modified enrolled bill rule, enrolled bills were considered conclusive evidence that the legislature acted in conformity with constitutional time restrictions on the legislative session (In re Rounds, 2003). Under Section 4, the governor has five calendar days from the date of presentation of the bill to veto it (In re Request of Governor Janklow, 2000). For an effective veto, the governor must return it to the legislature within five calendar days, if the legislature is in session, but if the legislature recesses during those five days and thereby prevents the governor from making a timely return of the vetoed bill, the governor may still return the bill upon the reconvening of the legislature from that recess. The governor is not required to deliver veto messages and bills during recesses, adjournments, weekends, national holidays, nor during the fifteen day break before the final legislative day. Section 5 Powers and Duties of Lieutenant Governor The lieutenant governor shall be president of the senate but shall have no vote unless the senators be equally divided. The lieutenant governor shall perform the duties and exercise the powers that may be delegated to him by the Governor.

The 1972 amendment rewrote the section and added an entirely new second sentence to this section. Section 6 Succession of Executive Power When the office of Governor shall become vacant through death, resignation, failure to qualify, conviction after impeachment or permanent disability of the Governor, the lieutenant governor shall succeed to the office and powers of the Governor. When the Governor is unable to serve by reason of continuous absence from the state, or other temporary disability, the executive power shall devolve upon the lieutenant governor for the residue of the term or until the disability is removed. Whenever there is a permanent vacancy in the office of the lieutenant governor, the Governor shall nominate a lieutenant governor who shall take office upon confirmation by a majority vote of all the members of each house of the Legislature. Whenever there is a concurrent vacancy in the office of Governor

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and lieutenant governor, the order of succession for the office of Governor shall be as provided by law. The Supreme Court shall have original and exclusive jurisdiction to determine when a continuous absence from the state or disability has occurred in the office of the Governor or a permanent vacancy exists in the office of lieutenant governor.

The 1972 amendments combined into this section provisions of former Sections 6 and 7; the amendments also added provisions covering vacancies in the office of lieutenant governor, as well as a new third paragraph relating to jurisdiction of the South Dakota Supreme Court. Section 7 Other Executive Offices—Powers and Duties There shall be chosen by the qualified electors of the state at the general election of the Governor and every four years thereafter the following constitutional officers:  attorney general, secretary of state, auditor, treasurer, and commissioner of school and public lands, who shall severally hold their offices for a term of four years. Commencing with the 1992 general election, no person may be elected to more than two consecutive terms as attorney general, secretary of state, auditor, treasurer, or commissioner of school and public lands.

The 1972 amendment increased the terms of office from two to four years, deleted a provision limiting the treasurer to two consecutive terms of two years each, and deleted provisions for a superintendent of public instruction to be elected for a two-year term on a non-political ballot. A  1992 initiated amendment added the last sentence to this section. As the South Dakota Supreme Court has interpreted this section, no election for commissioner of school and public lands is authorized in presidential election years (Kane v.  Kundert, 1985). Election of the commissioner of school and public lands, as with the election of governor, is to be held in a non-presidential election year. Section 8 Reorganization All executive and administrative offices, boards, agencies, commissions and instrumentalities of the state government and their respective functions, powers and duties, except for the office of Governor, lieutenant governor, attorney general, secretary of state, auditor, treasurer, and commissioner of school and public lands, shall be allocated by law among and within not more than twenty-five principal departments, organized as far as practicable according to major purposes, by no later than July 1, 1974. Subsequently, all new powers or functions shall be assigned to administrative offices, agencies and instrumentalities in such manner as will tend to provide an orderly arrangement in the administrative organization of state government. Temporary commissions may be established by law and need not be allocated within a principal department.

A r t ic l e I V   n   9 9 Except as to elected constitutional officers, the Governor may make such changes in the organization of offices, boards, commissions, agencies and instrumentalities, and in allocation of their functions, powers and duties, as he considers necessary for efficient administration. If such changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the Legislature within five legislative days after it convenes, and shall become effective, and shall have the force of law, within ninety days after submission, unless disapproved by a resolution concurred in by a majority of all the members of either house.

The 1972 amendment added this section to the constitution. The South Dakota Supreme Court has ruled that the power granted to the governor in the second paragraph of Section 8 is separate and independent of the power of the legislature referred to in the first paragraph of Section 8 (In re Opinion of the Supreme Court Relative to Executive Order 73-1, 1973). In South Dakota Board of Regents v.  Meister (1981), the court held that there was no inconsistency between Article XIV, Section 3 and Article IV, Section 8. And to the degree that there is any perceived or actual inconsistency between the two sections, Article IV, Section 8 is controlling. Thus, the court held that the Board of Regents was within the executive branch of government and as such subject to the authority of the executive branch. Consequently, the Board of Regents is not a separate and distinct constitutional entity, nor a kind of fourth branch of government apart from the authority of the executive branch. Section 9 Appointment and Removal Power Each principal department shall be under the supervision of the Governor and, unless otherwise provided in this Constitution or by law, shall be headed by a single executive. Such single executive, unless provided otherwise by the Constitution, shall be nominated and, by and with the advice and consent of the senate, appointed by the Governor and shall hold office for a term to expire at the end of the term for which the Governor was elected, unless sooner removed by the Governor. Except as otherwise provided in this Constitution, whenever a board, commission or other body shall head a principal department of the state government, the members thereof shall be nominated and, by and with the advice and consent of the senate, appointed by the Governor. The term of office and removal of such members shall be as prescribed by law. The Governor shall have power to nominate and make interim appointments requiring senate confirmation during recess of the Legislature except that such nominations and interim appointments shall extend only to the end of the Governor’s term or until acted upon by the Legislature.

The 1972 amendments added this section to the constitution. The former sections 10 through 13 are either eliminated by the 1972 revision of Article IV or merged into the now nine sections of the article.

Article V Judicial Department

Section 1 Judicial Powers The judicial power of the state is vested in a unified judicial system consisting of a Supreme Court, circuit courts of general jurisdiction and courts of limited original jurisdiction as established by the Legislature.

The 1972 amendments revised the entire Article IV. In reorganizing the article, the 1972 amendments established a unified judicial system and made numerous changes throughout the Article. In Section 1, the 1972 amendment inserted the language “of general jurisdiction” after the term “circuit courts.” The 1972 amendment also substituted the reference to inferior courts of limited original jurisdiction for the previous language of “county courts, and justices of the peace, and such other courts as may be created by law for cities and incorporated towns.” Using separation of powers doctrines to interpret this article, the South Dakota Supreme Court has ruled that the imposition of punishment as well as the power to award damages in tort actions is a judicial function reserved to the courts (O’Toole v.  Board of Trustees of South Dakota Retirement System, 2002). As the court has stated, it is not the judiary’s task to revise or amend, via judicial opinions, statutes or to liberally construe a statute so as to avoid a seemingly harsh result, where such action would contradict the plain meaning of the statute under construction (Hannon v. Weber, 101

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2001). Courts are not free to overrule legislative values and may not set up their judgment against a legislative determination (Breck v. Janklow, 2001). The courts have no legislative authority and should avoid any usurpation of legislative powers or any entry into the legislative field (Petition of Famous Brands Inc., 1984). If a statute appears on its face to be constitutional and valid, a court may not inquire into the motives of the legislature (McFarland v. Barron, 1969). The supreme court can be concerned only with the power of the legislature to adopt legislation, not with its wisdom (Clem v. City of Yankton, 1968). Section 2 Supreme Court The Supreme Court is the highest court of the state. It consists of a chief justice and four associate justices. Upon request by the Supreme Court the Legislature may increase the number of justices to seven. All justices shall be selected from compact districts established by the Legislature, and each district shall have one justice.

The 1972 amendment combined provisions of the former Sections 5, 6, and 11. The 1972 amendment also provided for a chief justice, authorized increasing the number of justices to seven, deleted a provision for election by the electors of the state at large, and deleted provisions establishing the original districts. Section 3 Circuit Courts The circuit courts consist of such number of circuits and judges as the Supreme Court determines by rule.

The 1972 amendment substituted this section for former Sections 16 and 17, which established the original circuits and authorized the legislature to change the number of circuits and judges. Section 4 Courts of Limited Jurisdiction Courts of limited jurisdiction consist of all courts created by the Legislature having limited original jurisdiction.

In the original Constitution, Sections 19 through 21 of Article V provided for county courts and their jurisdiction. Section 22 applied to the jurisdiction of the Justice of the Peace, and Section 23 provided for police magistrates and their jurisdiction. A 1906 amendment added provisions for municipal courts. In 1966, amendments to former Section 19 authorized the South Dakota Supreme Court to create county court districts and deleted from former Section 20 a provision limiting county court jurisdiction to $1,000 except in

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probate, guardianship and decedents’ estate cases. The 1972 amendments substituted the present Section 4 for the former Sections 19 through 23. Section 5 Jurisdiction of Courts The Supreme Court shall have such appellate jurisdiction as may be provided by the Legislature, and the Supreme Court or any justice thereof may issue any original or remedial writ which shall then be heard and determined by that court. The Governor has authority to require opinions of the Supreme Court upon important questions of law involved in the exercise of his executive power and upon solemn occasions. The circuit courts have original jurisdiction in all cases except as to any limited original jurisdiction granted to other courts by the Legislature. The circuit courts and judges thereof have the power to issue, hear and determine all original and remedial writs. The circuit courts have such appellate jurisdiction as may be provided by law. Imposition or execution of a sentence may be suspended by the court empowered to impose the sentence unless otherwise provided by law.

The 1972 amendments combined provisions of former Sections 2, 3, 13, 14, and 39, and also subjected the appellate jurisdiction of the supreme court to legislative definition. Regarding the provisions in Section 5 concerning jurisdiction by the supreme court, the 1972 amendment deleted language specifying the types of cases over which the supreme court may exercise jurisdiction. However, as the court stated in Burns v. Kurtenbach (1982), that 1972 amendment in no way limited the powers granted by prior constitutional provisions relating to the original jurisdiction of the court. Therefore, the court in Burns found that it did have original jurisdiction over an action challenging the validity of certain school board candidates’ nominating petitions. As this section reveals, the supreme court has only such appellate jurisdiction as may be provided by the legislature and the state constitution (Double Diamond Construction v.  Farmers Coop. Elevator Association of Beresford, 2003). Subject matter jurisdiction cannot be conferred by consent of the parties. Moreover, the supreme court may raise the issue of appellate jurisdiction on its own motion, without waiting for a motion from one of the parties. The supreme court has both a constitutional and statutory authority to issue writs of prohibition to stop the proceedings of any tribunal, when such proceedings are without jurisdiction or outside the power of authority conferred by law upon the tribunal (Sioux Falls Argus Leader v. Miller, 2000). (The jurisdiction of the supreme court to review legislative election results is discussed in more detail under Article III, Section 9.) Except in very limited situations, the supreme court cannot give advisory opinions. The provision for advisory opinions in Section 5 is triggered only by some “important question of law” involved in the exercise of executive functions, or upon some “solemn occasion” (In re Matter of the Construction of Article

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III, Section 5 of the South Dakota Constitution, 1991). Factors in determining whether a request by the governor presents a “solemn occasion” in which the supreme court can give an advisory opinion include whether an important issue of law is presented, whether the question presents issues that are pending before the court, whether the matter involves prior rights or issues of general application, whether alternative remedies exist, whether facts and opinions are final or ripe for advisory opinion, whether the issue will have significant impact on state government or the public in general, and whether the court has been provided an adequate amount of time to consider the question (In re Janklow, 1999). Moreover, the governor’s power to require an advisory opinion from the supreme court is confined exclusively to such questions as may raise a doubt in the executive department, never in the legislative department (Matter of Construction of Article III, Section 5, of the South Dakota Constitution, 1991). In addition, whether an advisory opinion requested by the governor affects individual rights is another important factor in the supreme court’s capacity to issue advisory opinions. The South Dakota Supreme Court stated that an advisory opinion was not appropriate on the question of whether the governor could withdraw names of persons nominated to the Board of Regents by a former governor before his term of office had expired, without having given those persons an opportunity to be heard. The court stated that the parties involved could have their rights expeditiously determined in an adversary proceeding (In re Opinion of the Judges, 1971). Circuit courts are courts of general jurisdiction. Circuit courts have original jurisdiction in all cases in equity, and thus have broad jurisdiction to grant equitable remedies when properly invoked and pursuant to principles of equity (Alexander v. Hamilton, 1994). The constitutional provision stating that circuit courts have original jurisdictions in all cases except as to any limited original jurisdiction granted to other courts does not mean “all cases in any circuit,” so as to grant circuit judges authority to act outside their circuits (State v. Wilson, 2000). The power given to judges of a particular circuit pertain only to that circuit. If the legislature exercises the prerogative granted it by the state constitution to limit the original jurisdiction of circuit courts by locating the remedy for some cause of action in an administrative agency, that agency has exclusive primary jurisdiction which precludes parties from directly seeking litigation in court (Claggett v. Department of Revenue, 1990). A 1982 amendment to Section 5 eliminated any role of the governor in the redistricting process, even if the legislature fails to act. Thus, it was only between 1936 and 1982 that the governor had a constitutionally specified role to play in legislative reapportionment. The constitution had been amended in 1936 to provide the governor with a specific role, but the 1982 amendment eliminated this role (In the Matter of the Construction of Article III, Section 5 of the South Dakota Constitution, 1991).

A r t ic l e V   n   10 5 Section 6 Qualifications of Judicial Personnel Justices of the Supreme Court, judges of the circuit courts and persons presiding over courts of limited jurisdiction must be citizens of the United States, residents of the state of South Dakota and voting residents within the district, circuit or jurisdiction from which they are elected or appointed. No Supreme Court justice shall be deemed to have lost his voting residence in a district by reason of his removal to the seat of government in the discharge of his official duties. Justices of the Supreme Court and judges of circuit courts must be licensed to practice law in the state of South Dakota.

The 1972 amendment, which combined provisions of former Sections 10, 25 and 37, deleted the age requirements of thirty for Supreme Court justices and twenty-five for circuit and county court judges. The amendment, among other changes, also deleted durational residency requirements of two years for the Supreme Court and one year for circuit and county court judges, and it added a requirement that justices and judges be qualified to vote. In discussing the historical intent behind Section 6 and its 1972 amendment, the court in Cummings v. Mickelson (1993) noted that under former provisions an elected circuit court judge was specifically required to reside in the circuit at the time of election. Citing the report by the Constitutional Revision Commission, the court in Cummings recognized that the commission wished to do away with the existing residency and age requirements, finding them arbitrary standards with little relevance to the qualifications needed for a judicial position. Deleting the previous requirements of residency at the time of election, the commission concluded that a period of residency does not seem logical in a modern transitory society. Thus, in Cummings the court found that Section 6 only required residency prior to the time the judge took office, rather than at the time the candidate makes an application for the judicial vacancy. Section 6 as amended in 1972 requires only that a judge be a resident in that circuit “when appointed or elected” to the office of circuit court judge. Section 7 Judicial Selection Circuit court judges shall be elected in a nonpolitical election by the electorate of the circuit each represents for an eight-year term. A vacancy, as defined by law, in the office of a Supreme Court justice or circuit court judge, shall be filled by appointment of the Governor from one of two or more persons nominated by the judicial qualifications commission. The appointment to fill a vacancy of a circuit court judge shall be for the balance of the unexpired term; and the appointment to fill a vacancy of a Supreme Court justice shall be subject to approval or rejection as hereinafter set forth. Retention of each Supreme Court justice shall, in the manner provided by law, be subject to approval or rejection on a nonpolitical ballot at the first general election following the expiration of three years from the date of his

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appointment. Thereafter, each Supreme Court justice shall be subject to approval or rejection in like manner every eighth year. All incumbent Supreme Court justices at the time of the effective date of this amendment shall be subject to a retention election in the general election in the year in which their respective existing terms expire.

The 1972 amendment combined provisions of former Sections 8, 15, and 37. Among other changes, the 1972 amendment extended the terms of office for supreme court justices from six to eight years and for circuit court judges from four to eight years. It also added the requirement for nonpolitical elections; it provided for election of supreme court justices by electors of the district rather than the state at large, and it extended the governor’s power to fill vacancies to all elective judicial offices. An amendment approved in 1980 rewrote this section. There are three constitutional methods by which a circuit judge is authorized to act. First, a judge may be elected by the voters of the representative circuit. Second, a judge may be appointed by the governor in the case of a vacancy in the circuit. And third, a judge may be assigned to another circuit by the chief justice of the supreme court (State v. Wilson, 2000). As head of the entire integrated judicial system in South Dakota, the chief justice of the South Dakota Supreme Court can assign judicial personnel to specific areas (or circuits) experiencing increased litigation.60 Upon notification of a judicial vacancy, the governor is empowered pursuant to Section 7 to fill the vacancy by appointment for the balance of the term (Cummings v. Mickelson, 1993). Once an appointment is made, it is final and cannot be withdrawn and exercised again unless a subsequent vacancy arises. As the court in Cummings stated, this doctrine specifically applies to circuit court appointments made by the governor pursuant to Section 7. Section 8 Selection of the Chief Justice The chief justice shall be selected from among the justices of the Supreme Court for a term and in a manner to be provided by law. The chief justice may resign his office without resigning from the Supreme Court.

The 1972 amendment substituted the first sentence for a previous provision requiring the supreme court judges to select a presiding judge by rule. The amendment also added the second sentence. Section 9 Qualifications Commission The Legislature shall provide by law for the establishment of a judicial qualifications commission which have such powers as the Legislature may provide,

60 See also Section 11 of Article V.

A r t ic l e V   n   10 7 including the power to investigate complaints against any justice or judge and to conduct confidential hearings concerning the removal or involuntary retirement of a justice or judge. The Supreme Court shall prescribe by rule the means to implement and enforce the powers of the commission. On recommendation of the judicial qualifications commission the Supreme Court, after hearing, may censure, remove or retire a justice or judge for action which constitutes willful misconduct in office, willful and persistent failure to perform his duties, habitual intemperance, disability that seriously interferes with the performance of the duties or conduct prejudicial to the administration of justice which brings a judicial office into disrepute. No justice or judge shall sit in judgment in any hearing involving his own removal or retirement.

The 1972 amendment added this entire section to the constitution. Section 10 Restrictions During his term of office no Supreme Court justice or circuit court judge shall engage in the practice of law. Any Supreme Court justice or circuit court judge who becomes a candidate for an elective nonjudicial office shall thereby forfeit his judicial office.

The 1972 amendment combined provisions contained in former Sections 31 and 35. The amendment also deleted a provision prohibiting county court judges from practicing in matters in their own courts or appealed therefrom. The 1972 amendment substituted the second sentence for previous provisions disqualifying supreme and circuit court judges from election to a non-judicial office during the term for which they were elected to the bench. Section 11 Administration The chief justice is the administrative head of the unified judicial system. The chief justice shall submit an annual consolidated budget for the entire unified judicial system, and the total cost of the system shall be paid by the state. The Legislature may provide by law for the reimbursement to the state of appropriate portions of such cost by governmental subdivisions. The Supreme Court shall appoint such court personnel as it deems necessary to serve at its pleasure. The chief justice shall appoint a presiding circuit judge for each judicial circuit to serve at the pleasure of the chief justice. Each presiding circuit judge shall have such administrative power as the Supreme Court designates by rule and may, unless it be otherwise provided by law, appoint judicial personnel to courts of limited jurisdiction to serve at his pleasure. Each presiding circuit judge shall appoint clerks and other court personnel for the counties in his circuit who shall serve at his pleasure at a compensation fixed by law. Duties of clerks shall be defined by Supreme Court rule. The chief justice shall have power to assign any circuit judge to sit on another circuit court, or on the Supreme Court in case of a vacancy or in place of a justice who is disqualified or unable to act. The chief justice may authorize a justice to sit as a judge in any circuit court.

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The chief justice may authorize retired justices and judges to perform any judicial duties to the extent provided by law and as directed by the Supreme Court.

A 1918 amendment to the former Section 7 added a second paragraph providing for temporary replacement of disqualified supreme court judges. A 1970 amendment added the former Section 40. The 1972 amendment then combined and replaced provisions contained in former sections 7, 12, 29, 32, and 40. That amendment also made other various changes in this section. Under this section, circuit court judges are forbidden from acting outside the boundaries of their circuit without an assignment from the chief justice of the South Dakota Supreme Court (State v. Wilson, 2000). Generally, a judge cannot act for a court other than the one for which he or she was selected. Furthermore, the power given to the chief justice to assign circuit judges outside their circuit is the exclusive method by which judges may be assigned to another circuit. There is no exception for emergency situations (State v. Wilson). The Constitutional Revision Commission, in drafting the 1972 amendment to Section 11, found that the way in which judges handled judicial business in another circuit, at the request of that circuit, contributed to the overall inefficiency of the judicial system.61 Therefore, the 1972 amendment repealed the previous sections allowing for such a practice, providing instead for a system in which the chief justice could assign circuit judges to another circuit. According to the commission, this system “provides the best possible utilization of judicial personnel.”62 The 1972 amendment strengthened and fortified the circuit court boundaries, cutting back the flexibility accorded by the 1889 constitution to judges crossing circuit boundaries, along with the jurisdictional limits on judges within those circuit court boundaries. Section 11, as amended in 1972, is part of a much larger scheme of the 1972 amendments to make the judicial system more efficient. From 1889 to 1970, South Dakota’s constitution was amended 79 times, each time adding more complexities and inconsistencies to the document. 63 In 1969, the legislature charged the Constitutional Revision Commission “to enter into a comprehensive study of the constitution of the state of South Dakota to determine ways and means to improve and simplify the constitution.”64 As a result of this study, the commission recommended that the various state and local court systems be consolidated into a unified judicial system, so as to streamline the court system by “eliminating overlapping jurisdiction between courts.”65

61 1 Recommendations of the Constitutional Revision Commission No. 55, 34. 62 Recommendations, 35. 63 South Dakota Constitutional Revision Commission, Third Annual Report No. 1 (1972). 64 Id. 65 Recommendations, 34.

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To achieve a more efficient allocation of judicial resources, the commission recommended establishing the office of chief justice as administrative head of this unified court system.66 Subsequently, these recommendations were adopted by the voters in 1972, thereby establishing the current unified judicial system, over which the chief justice is the administrative head.67 Consequently, under Section 11, the chief justice can assign judicial personnel to areas of increased litigation, thus providing for greater efficiency. But when a circuit judge is appointed to act outside his circuit, any authority to act is dependent upon an order by the chief justice setting forth the extent and limits of this out-of-circuit authority (State v. Wilson, 2000). Section 12 Rule-making Power The Supreme Court shall have general superintending powers over all courts and may make rules of practice and procedure and rules governing the administration of all courts. The Supreme Court by rule shall govern terms of courts, admission to the bar, and discipline of members of the bar. These rules may be changed by the Legislature.

The 1972 amendment combined and modified in the present Section 12 provisions in former Sections 2, 4, 27, 28 and 33. It also granted to the supreme court specific rulemaking power with respect to practice and procedure, administration of the courts, admission to the bar and discipline of members of the bar. As the court noted in Cummings v. Mickelson, Section 12 vests in the supreme court general supervisory power over all courts in the state. In addition, the supreme court has the inherent power and duty to see that the administration of justice is fair (Kermmoade v. Quality Inn, 2000). Courts have the inherent power to regulate trial procedure (State v. Guthrie, 2001). They also have the authority to establish local rules, such as those requiring submission of pretrial conference checklists (Stormo v. Strong, 1991). Section 13 Transition The Legislature by law and the Supreme Court by rule shall provide for the orderly transition of the judicial system in conformity with this article.

The 1972 amendment added this section to the constitution. The 1972 amendments also eliminated Sections 14 through 39. Many provisions of these sections were incorporated by the rewriting of Article V into just thirteen sections.

66 Id. 67 Id. at 34, 49.

Article VI Bill of Rights

■■ INTRODUCTION

There are more cases decided by the South Dakota Supreme Court citing this article than any other article of the South Dakota State Constitution. However, the overwhelming majority of the opinions citing Article VI also cite or rely upon a similar provision in the U.S. Constitution. Therefore, much of the constitutional interpretation cited or articulated by the South Dakota Supreme Court under Article VI relates to or stems from constitutional interpretations previously articulated by the U.S. Supreme Court. Although most of the sections and provisions in Article VI reflect or mirror similar provisions in the federal Constitution, there are various provisions in this article that differ from related provisions in the federal Constitution. Some provisions of Article VI, such as those relating to free speech, are more restrictive than the federal Constitution, and for this reason are rarely if ever cited or relied upon. But there are other provisions which expand the rights and freedoms beyond those which the federal Constitution confers. In 1946, this article was amended to include a “right-to-work” provision. As the length of Article VI demonstrates, state constitutions can be fairly expansive in their individual rights provisions. For this reason, much of state constitutional rights litigation focuses on whether state courts 111

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should follow or diverge from federal constitutional law.68 As Williams explains, the individual rights provisions in state constitutions often reflect the particular historical experience of that state. The experience of South Dakota, for instance, can be seen in the provisions in Article VI relating to freedom of religion, right to work, and right to bear arms. But for the most part, the rights provisions in many state constitutions, as with the South Dakota Constitution, mirror similar rights provisions in the federal Constitution. Where the South Dakota Constitution diverges from the federal Constitution, or where the South Dakota Constitution provides rights or freedoms beyond those in the U.S. Constitution, this book will note and discuss those instances. However, whereas the vast majority of cases interpreting Article VI rely largely upon federal constitutional law, this book will only generally highlight the principles and doctrines of federal constitutional law followed by the South Dakota Supreme Court. The book will not attempt to provide a comprehensive discussion or outline of federal constitutional law as it pertains to individual rights and civil liberties. Section 1 Inherent Rights All men are born equally free and independent, and have certain inherent rights, among which are those of enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

This section provides a general statement of individual liberty, the purpose of government, and the theory of the social compact. It relies on language found in the Declaration of Independence, the Preamble to the U.S. Constitution, and the theories of John Locke. Essentially, it gives textual expression to a notion of inherent rights that the U.S. Supreme Court has employed in its substantive due process protections of unenumerated rights. This substantive due process approach has been used to find constitutional protections for abortion, the right to travel, and certain other liberty interests. As explained by William Cape, the natural rights philosophy expressed in this section has “little legal or practical value in carrying out governmental powers.”69 Such broad statements have “little meaning or utility in the operation of state government.” There have been relatively few opinions issued by the South Dakota Supreme Court relying upon or interpreting this section. In City of Watertown v. Christnacht (1917), the court struck down a city ordinance imposing criminal 68 Robert F. Williams, The Law of American State Constitutions (2009). 69 Cape, Constitutional Revision, 66.

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sanctions on any person found associating with females known or reputed to be prostitutes. In striking down the law, the court cited case law from other jurisdictions describing a constitutionally protected personal liberty as that liberty “to go where one pleases, and when, and to do that which may lead to one’s business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens.” In a later case, involving the constitutionality of a statute prohibiting any college or school not supported by a church, religious or fraternal organization, or the state to collect advance tuition in excess of $25.00, the court used Section 1 of Article VI to overturn that law (State v. Nuss, 1962). With the opponents of that law citing economic freedom as one of the inherent rights guaranteed by Section 1, the court recognized that the term liberty as used in Section 1 means more than freedom from restraint or arrest—the term includes the freedom to own, control and use property, as well as the freedom to pursue any lawful trade or business. This freedom to pursue a lawful business and to control property also includes the freedom to make all contracts relating to that business or property. However, the court in Nuss also recognized that freedom of contract is not an absolute right, nor is it superior to the general welfare of the public. According to the court, freedom of contract is subject to reasonable restraint and regulation by the state, pursuant to its police power to protect the safety, health, and general welfare of the people: “There is no longer much question concerning the broad discretion possessed by the legislature to regulate any and all business for the protection of the health, safety, morals and general welfare of the people.” Although the power of the legislature to regulate private schools and their agents is unquestioned, due process requires that any exercise of that police power be reasonable and that the regulatory means chosen by the legislature bear a real and substantial relation to some actual or manifest evil. In analyzing the goal of the legislature to prevent fraud and deception, as well as the means chosen by the legislature to do so—e.g., a prohibition against collecting tuition or other charges in excess of $25.00 in advance of actual attendance in school—the Nuss court found that the means employed by the challenged statute bore no reasonable relation to the harms at which it was aimed and that the limitation on advanced tuition was an unwarranted invasion of defendant’s freedom of contract. The decision in State v. Nuss (1962) is the last decision found which relied on notions of economic liberty to strike down democratically enacted legislation. In a sense, Nuss can be seen as a holdover of the Lochner v. New York (1905) legacy, which was abandoned and overruled by the U.S. Supreme Court during the New Deal era, when the Court abandoned the heightened scrutiny of Lochner and adopted a more deferential stance toward economic and social welfare regulation.70 The Court in Lochner had struck down a law limiting the 70 See West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

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number of hours a baker could work as a violation of substantive due process under the Fourteenth Amendment, insofar as the law was an unjustified interference with freedom of contract. Section 2 Due Process—Right to Work No person shall be deprived of life, liberty or property without due process of law. The right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union, or labor organization.

Due Process in General This section has only two sentences. The first sentence contains a very general statement about due process of law. The courts have applied this due process provision in a number of circumstances. It has cited or interpreted Section 2 in connection with both procedural due process and substantive due process. It has also applied and interpreted it in the area of criminal due process, and in this respect Section 2 dovetails with Section 7 of Article VI, dealing with rights of the criminally accused. In addition, Section 2 has been interpreted or cited in determining the constitutionality of punitive damages awards and statutory limitations on damages. Finally, it has been used and interpreted in various situations involving the rights of persons whose property interests have been restrained by government action. With respect to due process implications for civil proceedings in general, Section 2 has been applied in cases involving civil commitment of sexually violent offenders and the challenging of punitive damages or grossly excessive awards. Regarding criminal due process, this section, along with other more specific sections of Article VI, has been cited in cases involving the admissibility of evidence in criminal proceedings, burden of proof issues and competency of criminal defendants, jury trial questions, pretrial detention and police conduct, the right to counsel, and the privilege against self-incrimination. This section has also been used in connection with Section 1 for substantive due process issues, but it is more frequently applied to procedural due process and to specifying the types of notice and hearings that individuals are entitled to receive prior to certain governmental action affecting their property or liberty interests. The second sentence of Section 2 contains a right to work provision. It was added by a 1945 amendment, which was approved by the voters in November of 1946. Although the South Dakota Supreme Court has on occasion read the substantive due process clause in Article VI more broadly than its

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federal counterpart,71 claims involving procedural due process under the South Dakota Constitution have generally been handled the same as those under the Fourteenth Amendment to the U.S. Constitution.72 Substantive Due Process The South Dakota Supreme Court first used the substantive due process clause of Section 2 to strike down a legislative act in 1892 (State v. Scongal, 1892). Although the court did not specify any particular substantive due process test, the court in striking down the Banking Act of 1891 held that it invaded the individual right to liberty and property. One way in which South Dakota constitutional law differs from federal constitutional law involves the test that South Dakota uses for whether certain statutes violate substantive due process. In upholding a city zoning ordinance that through its definition of “family” limits to three the number of unrelated adults who may live together in one residential unit, the court acknowledged that it applies a more stringent test under the South Dakota due process clause than the U.S. Supreme Court uses under the Fourteenth Amendment to evaluate the constitutionality of statutes involving neither a suspect classification nor a fundamental right (City of Brookings v. Winker, 1996). Whereas the U.S. Supreme Court uses the rational basis test to evaluate substantive due process claims involving government regulation of economic or social welfare matters, the South Dakota Supreme Court requires the statute to bear a “real and substantial relation” to the objects sought to be achieved. This heightened substantive due process scrutiny (for claims not involving fundamental rights) was articulated in 1962 in State v. Nuss (1962).73 However, on occasion, the court has seemed to lighten this test down to a reasonableness or rational basis test.74 One such relaxation occurred in Katz, where the court upheld against a due process challenge a decision of the Board of Medical and 71 See Matter of Estate of Washburn, 575 N.W.2d 245 (S.D. 1998); Knowles v. U.S., 544 N.W.2d 183 (S.D. 1996). 72 Compare Washington v.  Glucksberg, 521 U.S. 702, 720 (1997) (applying rational basis scrutiny to federal substantive due process claims) with Ex Parte Hawley, 115 N.W. 93, 95 (S.D. 1908) (applying “real and substantial relation” scrutiny). However, with respect to procedural due process, the protections given by the Fourteenth Amendment are coextensive with those given the South Dakota Constitution. See, e.g., Matter of Estate of Washburn, 575 N.W.2d 245, 250 (S.D. 1998); Flockhart v. Wyant, 467 N.W.2d 473, 476 (S.D. 1991). Unfortunately, any debate regarding the initial drafting and acceptance of Section 2 of Article VI has been lost. See 1 Constitutional Debates of South Dakota at 281 (1907); Gilbert v. Flandreau Santee Sioux Tribe, 725 N.W.2d 249, 257 (2006). 73 See discussion of State v. Nuss under Article VI, Section 1, above. 74 Ronald Parsons & Sheila Woodward, The Heart of the Matter: Substantive Due Process in the South Dakota Courts, 47 S.D. L. Rev. 185 (2002).

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Osteopathic Examiners denying an individual’s application for a license to practice medicine (Katz v. South Dakota State Board of Medical and Osteopathic Examiners, 1988). In Katz, the court recognized that while substantive due process claims under the Fourteenth Amendment not involving fundamental rights warrant the rational basis test, similar claims under the South Dakota Constitution require that the law’s regulatory approach have a real and substantial relation to the goal of the statute. And yet, as Justice Sabers pointed out in his concurrence, the court seemed to abandon the “real and substantial relation” test when it stated the issue as one of whether the statute was “wholly unreasonable and arbitrary and bears no relation to the public interest.” The court in Knowles v. U.S. (1993) likewise acknowledged the heightened “real and substantial relation” test for non-fundamental rights substantive due process claims under Section 2; nonetheless, it seemed to evaluate the damages cap statute at issue under a more relaxed scrutiny. According to the court, “in matters of economic and social welfare, courts must defer to our democratically elected representative unless their enactments patently conflict with some constitutional provision.” 75 Yet despite this seemingly deferential stance, the court struck down the damages cap as “unreasonably arbitrary” and lacking a “real and substantial basis.” Even though the court in Knowles identified the heightened “real and substantial basis” as the test to be used for substantive due process claims, in City of Marion v. Schoenwald (2001) the court evaluated a substantive due process claim by measuring the “reasonableness” of the statute and the “rational relationship” between the statute and the ends sought to be achieved. In general, under either procedural or substantive due process, a party challenging the constitutionality of a statute must identify a property or liberty interest that is constitutionally protected. Whereas for substantive due process a fundamental right or liberty must be identified, for procedural due process an “important” right must be at stake (In re Hughes, 1999). For instance, due process was found to require a hearing for the transfer of a juvenile to an adult court, since the action involved critically important interests and rights of that juvenile (People in Interest of L.V.A., 1976). The court has also found that forfeiture statutes are unconstitutional if they contain no provisions for notice and hearing after seizure (State v. Miller, 2006). And statutes authorizing the State Board of Equalization to raise individual tax assessments without providing for notice to taxpayers or review by court or other body have been held unconstitutional. Due process requires civil statutes to convey a sufficiently definite warning of the prohibited conduct. This warning should be measured by common

75 544 N.W.2d at 195.

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understandings or practice, and must not cause persons to guess at the meaning or applicability of the statute (Swanson v. State Department of Commerce & Regulation, 1987). Procedural Due Process—Civil Actions The dictates of Article VI, Section 2 with respect to procedural due process differ very little from those existing under federal constitutional law. Therefore, what follows is a brief overview of general principles and applications of procedural due process as articulated by the South Dakota Supreme Court. Basically, due process requires that notice and the right to be heard are granted in a meaningful time and manner (City of Pierre v. Blackwell, 2001). Consequently, the formality and procedural requisites of a hearing depend on the nature of the subsequent proceedings and the importance of the interests involved. But the due process clause requires at a minimum that any deprivation of life, liberty, or property be preceded by notice and an opportunity for hearing appropriate to the nature and circumstances of the case (Northwest South Dakota Production Credit Ass’n v. Dale, 1985). As with cases involving procedural due process under federal constitutional law, the South Dakota Supreme Court has ruled that due process requirements attach, for instance, to a public school teacher whose employment contract has been terminated or not renewed by the school board (Moran v. Rapid City Area School District No. 51-4, 1979). The property interest a tenured teacher has in her continued employment necessitates compliance with due process requirements (Wuest v. Winner School District, 2000). However, even though a public school teacher’s constitutional right to due process mandates that he or she be given fair and impartial consideration by the school board in determining whether to renew her teaching contract, a denial to her of the opportunity to examine in advance of the hearing a list of parents who had complained about her was not so egregious as to violate her due process rights (Moran v. Rapid City Area School District, 1979). In general, due process is satisfied for a teacher whose contract will not be renewed when that teacher was notified of the charges against her, was allowed to review her official files, and had sufficient time to prepare a defense (Hensley v. Yankton Independent School District, 1975). The flexible nature of due process requirements is illustrated by the types of notices the court has found to be sufficient. For instance, the requirement that a taxpayer be notified before increasing his or her tax assessment is satisfied by constructive notice when actual notice is impractical (Beveridge v. Baer, 1932). (As discussed in Beveridge, the question was whether actual notice was required [notice specifically given to the individual effected] or whether constructive notice [the kind of notice not given specifically to the individual but which the individual will be charged with knowing, such as notice of the date and time of a public meeting at which a particular topic

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will be addressed] would be sufficient.) Moreover, public notice of the time and place of a hearing on the question of assessments for public improvements, such as sewers, is sufficient to constitute due process of law (Bailey v.  City of Sioux Falls, 1911). On the other hand, the court has held that a devisee was denied due process when the trial court in a probate proceeding refused to hold a hearing on the devisee’s petition for a reduction in the value of land he was to inherit, which would have decreased the devisee’s state inheritance tax and federal estate tax liabilities (In re Estate of Siebrasse, 2002). Due Process—Special Applications Due process requires that a public utility be given an opportunity to earn a fair rate of return on its property. Thus, any order of the Public Utilities Commission that denies such an opportunity constitutes a taking of property in violation of due process (Farmers Educational and Coop Union v. Circuit Court of Charles Mix Co., 1949). Specifically, an order by the Public Utilities Commission denying an increase in rates to a public utility amounts to confiscation of property if by such denial the utility is prevented from earning a fair return on its investment. Generally, due process prohibits the governmental taking of private property without just compensation. (Other related provisions on the constitutional law of eminent domain are covered in Article VI, Section 13 of the South Dakota Constitution.) However, an exception to this rule occurs when the government takes or destroys property so as to eliminate a public nuisance that poses an imminent hazard to the public health, safety, or welfare, and when such destruction is the only adequate method for eliminating that hazard (City of Rapid City v. Boland, 1978). In these cases, Article VI, Section 2, which provides “No person shall be deprived of property without due process of law,” must be read in light of Section 13. There are three exceptions to the requirement of compensation where, without the owner’s consent, private property is intentionally taken or damaged for the public use or benefit. These three exceptions are: (1) the taking or destruction of property during actual warfare; (2)  the taking or destruction of property to prevent an imminent public catastrophe; and (3) the taking or destruction of property to abate a public nuisance. In each instance, the power to take or damage property without compensation is based upon the public necessity of preventing an impending hazard which threatens the life, safety, or health of the general public (City of Rapid City v. Boland, 1978). To fall within these exceptions, there must be an extreme or overwhelming necessity to preserve the public welfare, and not just a mere expediency. There must be an impending disaster, and the destruction of the private property must be reasonably necessary to prevent that disaster.

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Although the abatement of a public nuisance does not entitle the owner of the property to compensation, the owner is entitled to due process to determine whether the property in fact poses a nuisance. A  summary abatement is allowed only where the property constitutes a public nuisance that is an imminent hazard to public health or safety, and that destruction is the only adequate method of eliminating that hazard. If there is no notice and hearing before the seizure and destruction of the property, then the owner is entitled to a hearing after the destruction so as to determine whether the property was in fact a nuisance (City of Rapid City v. Boland, 1978). Furthermore, once the impending disaster has passed, the government may not rely upon the doctrine of necessity to justify any subsequent destruction of the property. In South Dakota Department of Health v.  Owen (1984), the South Dakota Supreme Court found that the destruction of a commercial elk herd infected with tuberculosis did not require compensation by the government, since the destruction constituted a summary abatement of a nuisance that was imminently hazardous to the public health and safety. According to the rule in Owen, a destruction by health authorities of animals suffering from a contagious disease, where such destruction is necessary to prevent the spread of that disease, does not amount to a taking of property for public use within the meaning of the constitutional provisions requiring compensation for such use. However, if there is no notice and hearing before seizure and destruction of the property, the owner is entitled to a hearing after the destruction to determine whether the property was in fact a nuisance and whether this destruction was necessary to abate the nuisance. Due Process—Damages Awards Although there has been much national litigation regarding the connection between punitive damages and due process, there has been relatively little such litigation in South Dakota. In general, statutes governing punitive damages are presumed to meet due process requirements (Schaffer v. Edward D. Jones & Co, 1996). For instance, even when the ratio between punitive and compensatory damages was 30 to 1, the court upheld the imposition of a punitive damages award to an investor claiming fraud and deceit, where it was found that the defendant had intentionally touted the investment as conservative even though it was in fact highly speculative, and where the defendant firm had made very large commissions selling that particular investment. In assessing the constitutionality of punitive damages awards, courts should consider five factors: (1) whether the harm caused was physical as opposed to economic; (2)  whether the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; (3) whether target of the conduct had financial vulnerability; (4) whether the conduct involved repeated actions or was an isolated incident; and (5) whether the harm was a result of

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intentional malice, trickery, or deceit, or a mere accident (Diesel Machinery Inc. v. B. R. Lee Industries, Inc., 2005). However, the dominant consideration for assessing the constitutionality of a punitive damages award seems to be the reprehensibility of the defendant’s conduct. In one decision overruling a punitive damages award of $7.5 million to a former agent who sued an insurance company for deceit and breach of fiduciary duty, the court held that the award violated due process on the grounds that the company’s actions did not constitute reckless disregard of the health or safety of others, nor did it involve an act of trickery or animosity toward the agent (Kent v. United of Omaha Life Insurance Co., 2006). With respect to the due process implications of statutory damage caps, the South Dakota Supreme Court has ruled that a $1 million malpractice damages cap violated the state constitutional right to substantive due process (Knowles v. United States, 1996). Not only did a statutory limitation on damages for medical malpractice violate the South Dakota Constitution’s guarantee of the right to trial by jury, since such a damages cap limits the jury verdict “automatically and absolutely,” but such a damages cap also violates substantive due process, since it did not bear a real and substantial relation to the objects sought to be attained by the damages cap. According to the court, the arbitrary classification of medical malpractice claimants based on the amount of damages is not rationally related to the stated purpose of curbing medical malpractice claims. Not only was the damages cap adopted as a result of “some perceived medical malpractice crisis,” but the court also found that the statute did not treat each medical malpractice claimant uniformly. The Right-to-Work Guarantee This constitutional right-to-work provision applies to both public and private employment (Levasseur v.  Wheeldon, 1962). Consequently, a city resolution requiring certain employees of the city to terminate their membership in any union affiliated with a national labor federation violated the right-to-work provision in Article VI. However, the South Dakota Supreme Court has held that requiring membership in the state bar so as to practice law in the state does not violate the provision; moreover, the state bar was not a labor union or labor organization within the meaning of the provision (Matter of Chamley, 1984). Union or agency shops are invalid in South Dakota (Matthews v. Twin City Const. Co., Inc., 1984). According to Matthews, union security agreements violate South Dakota right-to-work statutory law, as enabled by the constitutional right-to-work provision. Where a non-union worker sued a former employer and union, alleging that they had terminated his employment because of non-membership in a union, the court held that through Article VI, Section 2 of the South Dakota Constitution and related right-to-work legislation, South

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Dakota had clearly elected to exercise an exemption in the Taft-Hartley Act which provided: Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any state or territory in which such execution or application is prohibited by state or territorial law.

Thus, South Dakota can enforce its right-to-work laws without regard to the national labor laws. Due Process—Criminal Proceedings In the criminal setting, due process requires a fundamental fairness (State ex rel. Baker v.  Jameson, 1949). Under the due process guarantee in Article VI, Section 2, a defendant is not guaranteed a perfect trial, only a fair trial (State v. Nelson, 1998). Due process is denied when a court fails to protect a criminally accused’s constitutional rights to jury trial, to be informed of the nature and cause of accusations against him, to confront adverse witnesses, to have compulsory process to obtain witnesses, and to have the assistance of counsel. Inherent and unconstitutional prejudice exists not simply when jurors can actually articulate consciousness of some prejudicial effect, but when there is an unacceptable risk of impermissible factors coming into play (State v. Weatherford, 1987). Due process requires that individuals know precisely what acts will subject them to criminal conviction. If a statute is so vague that persons of common intelligence must guess as to its meaning and application, the statute violates due process. In State v. Dove (1955), a statute purporting to define first degree kidnapping did not define with certainty what acts constituted that crime. Consequently, conviction under the statute violated due process. The constitutional rights of the criminally accused are also laid out in other provisions and sections of this article. Moreover, the South Dakota Supreme Court in interpreting and applying Section 2 has not significantly diverged from the mandates of the federal Constitution. Therefore, only a brief discussion of various aspects of due process requirements for criminal proceedings will be outlined here. The due process clauses of both the federal and state constitutions require the state to reveal exculpatory evidence to the defense (Rodriguez v.  Weber, 2000). A defendant’s due process rights are violated by a state’s failure to disclose evidence if the following four factors are established: (1) the defense was unaware of the evidence; (2) the evidence was favorable to the defense; (3) the evidence was material to the defense; and (4) he defense made a request for the evidence. The purpose of the rule that a defendant cannot be denied access to exculpatory evidence known to the government is not to provide a defendant

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with a complete disclosure of all evidence in the government’s position that might conceivably assist him in preparation of his defense, but to assure that he will not be denied access to exculpatory evidence possessed by the government (Ericson v. Weber, 2008). Although this rule does not absolve a defendant of his responsibility to discover evidence relevant to his defense or sentencing, it has been expanded to cases where the defendant has made no request for disclosure. However, even in those cases, the defendant must still prove that the government suppressed the evidence in question. A state’s refusal to provide a defendant with the investigating police officer’s original notes did not violate due process where there was so much incriminating testimony that it was doubtful the defendant could have found enough impeachment evidence in the notes to change the outcome of the trial (State v. Muetze, 1985). However, the suppression of evidence favorable to an accused, when the accused requests such evidence, generally violates due process where the evidence is material either to guilt or punishment, irrespective of good or bad faith of the prosecution (State v. Cody, 1982). But if the evidence would not have altered the ultimate jury verdict, despite its alleged exonerative affect, then there is no violation of due process. Moreover, some types of evidence, because of their greater probative force under the facts of the case, must be given to a defendant even if the defendant does not request them (State v. Hanson, 1979). A defendant’s refusal to submit to a blood-alcohol test was inadmissible under due process requirements, where the arresting officer did not warn defendant that the test results could be used against him at trial and that his refusal could also be used as evidence in a driving-while-intoxicated trial (State v. Neville, 1984). However, law enforcement officials who arrest a defendant for driving while under the influence did not violate defendant’s due process rights by denying her request for a blood test after she refused a breath test. The court ruled that there was nothing fundamentally unfair in this procedure and that it did not deny defendant a meaningful opportunity to present a complete defense, since the state did not withhold any exculpatory evidence (State v. Zoss, 1985). Although a person may waive his or her due process right to assistance of counsel, that waiver must be made voluntarily and intelligently and by a competent mind (State v. Haas, 1943). Such a competent and intelligent waiver is illustrated in Application of Trevithick, where a state prisoner was ruled not to have been denied due process nor deprived of a fair trial by his having gone to trial on a kidnapping charge without services of counsel. Factors considered by the court included whether the prisoner was acquainted with the criminal process, had previous experience in prison and knowledge of the benefits of counsel, and was aware of the seriousness of the charge (Application of Trevithick, 1966). A similar standard exists with respect to a defendant’s guilty plea. To determine if such a plea is voluntarily and intelligently given, as required by due

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process, the court must look to the totality of the circumstances. The court considers such factors as the defendant’s age, prior criminal record, whether defendant is represented by counsel, the existence of a plea agreement, and the time between advisements of rights and entering into that plea (State v. Apple, 2008). Moreover, once an accused agrees to plead guilty in reliance upon a prosecutor’s promise to perform a future act, the accused’s due process rights demand fulfillment of that bargain (Baldridge v. Weber, 2008). Section 3 Freedom of Religion Support of religion prohibited. The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege or position on account of his religious opinions; but the liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of the state. No person shall be compelled to attend or support any ministry or place of worship against his consent nor shall any preference be given by law to any religious establishment or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.

Section 3 includes religious freedom protections. It contains both a free exercise provision and a non-establishment provision, similar to the First Amendment of the U.S. Constitution. There is not a voluminous case law decided by the South Dakota Supreme Court interpreting this section. There is certainly nowhere near the volume of case law that exists with respect to the First Amendment religion clauses. This section does not appear to give more expansive liberties in connection with religious freedom than does the First Amendment; indeed, the provision that “The liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of the state” could be interpreted as more restrictive than the First Amendment Free Exercise Clause. However, since the Free Exercise Clause has been applied to the states through the Fourteenth Amendment, any state provision that is more restrictive than the relevant provision in the federal Bill of Rights will be essentially unenforceable. Despite the relative scarcity of South Dakota Supreme Court case law on Section 3, there is indication that the court sees Section 3 as coextensive with the First Amendment Free Exercise Clause. For instance, in Decker v. Tschetter Hutterian Brethren Inc. (1999), the court stated that both the First Amendment to the U.S. Constitution and Section 3 of Article VI of the South Dakota Constitution similarly precluded civil courts from entertaining religious disputes over doctrine, leaving adjudication of those issues to the ecclesiastical tribunals of the appropriate church.

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The court’s suggestion that the free exercise mandates of Section 3 are coextensive with the Free Exercise Clause of the First Amendment indicates that a much earlier case decided some seventy years ago may not hold up today. In the 1943 decision in State v. Van Daalan (1943), the court held that the South Dakota retail sales tax is a privilege or occupation tax that was unconstitutionally applied to an ordained minister of Jehovah’s Witnesses selling religious literature from door to door as a means of preaching the gospel. This decision may have been consistent with the U.S. Supreme Court’s pre-Smith approach, in which it applied strict scrutiny to any regulation burdening religious exercise. However, subsequent to Smith, the U.S. Supreme Court has taken a neutrality approach, holding that generally applicable laws that do not single out any minority religion are constitutional, despite the burden they may impose on religious exercise. The primary distinction between Section 3 and the First Amendment of the U.S. Constitution lies in the very last sentence of Section 3, which states, “No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.” This Blaine Amendment-type language appeared in an array of state constitutions ratified in the late nineteenth century, and was largely motivated by anti-Catholic sentiment focused on preventing any public money from going to Catholic schools. The South Dakota Supreme Court has ruled that this provision is “self-executing” and is intended to prohibit in every form, whether as a gift or otherwise, the appropriation of public funds for the benefit of any sectarian school or institution (McDonald v.  School Board of Yankton, 1976). Consequently, the clause is more restrictive than the Establishment Clause of the U.S. Constitution.76 In enforcing this provision of Section 3, the South Dakota Supreme Court has held that textbook loan statutes are unconstitutional on their face because they provide aid to sectarian schools or institutions (Elbe v. Yankton Independent School Dist., 1986). Moreover, the inclusion of additional classes of textbook recipients in these loan statutes, to include various students in both public and non-public schools, does not eliminate the constitutional flaw, because the statutes still provide public aid to a sectarian school or institution (Matter of Certification of a Question of Law, 1985). Although Blaine Amendment-type language appears in some state constitutions, the U.S. Supreme Court has taken a neutrality approach in its federal free exercise and establishment clause jurisprudence.77 In other words, under this neutrality approach, courts do not allow establishment clause concerns— e.g., that certain government support or accommodation might “establish” For a discussion of how the federal Establishment Clause does allow public funds to go to religious organizations in certain circumstances, see Patrick M. Garry, Religious Freedom Deserves More Than Neutrality, 57 Fla. L. Rev. 1 (2005). 77 For a discussion on the U.S. Supreme Court’s neutrality approach, see Garry, Religious Freedom, 9–15. 76

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a religion—to permit discrimination against that religion by denying it the same benefits or treatment given to secular groups or entities. The neutrality approach was evident in Wigg v. Sioux Falls School District (2004), where the U.S. Eighth Circuit Court of Appeals held that a school district’s policy prohibiting its employees from participating in religious-based programs held on school grounds was viewpoint discriminatory and could not be justified by the argument that any accommodation of religion might violate the Establishment Clause. This ruling reflected the trend of First Amendment case law beginning in about the 1980s, whereby the U.S. Supreme Court stated that the Establishment Clause could not be used to discriminate against religious practitioners and their speech rights. Even though the last sentence of Section 3 seems to run against the broad-based neutrality approach being taken by the U.S. Supreme Court, it is probably not in jeopardy of being struck down. Indeed, the Court in Locke v.  Davey (2004) seemed to sanction the appearance of Blaine-type Amendments within state constitutions. The approach seems to be that state constitutions cannot be more restrictive than the Free Exercise Clause, but they can be more restrictive than the Establishment Clause—thus, the Free Exercise Clause sets a minimum level of individual religious freedom, whereas the Establishment Clause sets the outer limits of permissible interaction between the state and religion. The South Dakota Supreme Court, however, has drawn certain boundaries around the constitutional prohibition of any aid going to a sectarian institution. The court has ruled, for instance, that Section 3 does not invalidate a state statute making every accredited high school eligible for membership in the State High School Interscholastic Activities Association, since such eligibility did not purport to provide any gift or appropriation to a sectarian institution, but merely stated that if there is to be an association for high school interscholastic activities then such association must admit all accredited high schools under uniform rules and regulations (South Dakota High School Interscholastic Activities Association v. St. Mary’s Inter-Parochial High School of Salem, 1966). Section 3 does not require that parochial students be barred from participation in interscholastic activities with public school students just because there might be an incidental use of public school facilities. This use of public school facilities by parochial school students does not amount to an unconstitutional aid to a sectarian institution. Thus, the South Dakota Supreme Court has limited the reach of Section 3 to the direct provision by the state to parochial schools of some measurable monetary benefit. Section 4 Right of Petition and Peaceable Assembly The right of petition, and of the people peaceably to assemble to consult for the common good and make known their opinions, shall never be abridged.

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While there has been much U.S. Supreme Court case law on freedom of assembly and association, there has been almost no significant South Dakota case law on Section 4. Therefore, there is no reason to conclude that Section 4 differs in any meaningful way from the relevant provisions of the First Amendment. Section 5 Freedom of Speech—Truth as Defense—Jury Trial Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense. The jury shall have the right to determine the fact and the law under the direction of the court.

This section is similar to the speech and press clauses of the First Amendment of the U.S. Constitution. However, the text of Section 5 does suggest that it could be more restrictive than the First Amendment. For instance, Section 5 states that even though individuals enjoy freedom of speech, they are responsible for abusing that right. Section 5 also seems to require that good motive exist in order for truth to be a defense in a libel action. Finally, Section 5 states that juries shall have the right to determine the law in libel cases. As with Section 3, this section has a relatively small volume of case law interpreting it, especially when compared with the huge volume of federal case law interpreting and applying the Free Speech Clause of the First Amendment. In the relatively few cases it has decided, the South Dakota Supreme Court has suggested that the provisions in Section 5 are coextensive with the similar provisions of the First Amendment. In Rapid City Journal v.  Circuit Court (1979), the South Dakota Supreme Court held that the press freedom in Section 5 of the South Dakota Constitution “affords the press no greater rights than its federal counterpart does.” This finding was cited in a later case in which the South Dakota Supreme Court held that Section 5 did not provide any greater speech protections than does the First Amendment (Gilbert v. Flandreau Santee Sioux Tribe, 2006). The court in Gilbert stated that even though Section 5 is worded differently than the First Amendment, the former was intended to provide no broader speech protections than those afforded by the First Amendment. Looking back to the 1885 South Dakota Constitutional Convention for evidence of the intent behind this section, the court stated, “We find no indication that the Framers intended to provide more expansive protection through South Dakota’s bill of rights than that provided by the First Amendment of the U.S. Constitution.” The language in Section 5 relating to an individual’s freedom of speech existing only to the extent that the individual not use that freedom to injure others harkens back to the natural rights philosophies of the eighteenth century, in which natural rights such as freedom of speech existed

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only so far as they were not used to infringe upon the rights of others. This “duty” aspect of the freedom of speech has largely been eroded over the past half-century of First Amendment jurisprudence. However, some of the early cases decided by the South Dakota Supreme Court under Section 5 reflect this duty or responsibility aspect of free speech. For instance, the court held that freedom of the press does not authorize a newspaper to assail litigants during the course of a trial, intimidate witnesses, nor publish its opinions on the merits of a pending case (In re A. Egan, 1909). Also in an early case, the court held that under Section 5 juries in libel cases have the right to determine the law, including the issue of whether a certain statement was privileged (Ross v. Ward, 1901). Finally, in a case that did not have direct application to Section 5 but that did address the issue of whether a lawyer could be professionally sanctioned for a speech made during the course of a judicial campaign, the court’s opinion reveals a notion of freedom of speech that harkens back to a Blackstonian era in which freedom of speech had to be exercised responsibly. In that case, the South Dakota Supreme Court upheld the disbarment of an attorney for speech he expressed during the course of a judicial campaign. Although the court said that the lawyer could not be criminally sanctioned for his speech, a lawyer in a campaign for a judicial office has an added responsibility and should seek to maintain a higher standard of conduct than could be expected of one who is not a member of the legal profession. Consequently, if a lawyer abuses his freedom of speech, it may be an indication of his character or fitness to practice law (In re Gorsuch, 1956). According to the court, the lawyer’s undignified and abusive speech demonstrated an unfitness to practice law and to assume the duties and responsibilities of the legal profession. Section 6 Jury Trial—Reduced Jury—Three-Fourths Vote The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy, but the Legislature may provide for a jury of less than twelve in any court not a court of record and for the decision of civil cases by three-fourths of the jury in any court.

This section, dealing with jury trial rights, overlaps with both Sections 2 and 7 of Article VI. Hence, case law interpreting those other sections may also have relevance to Section 6. While Section 7 of Article VI deals with jury trial rights in criminal proceedings, Section 6 deals with jury trials in civil proceedings. As a general rule, the right to a jury trial is guaranteed in all cases where such rights existed at common law (State v. Page, 2006). A jury trial right does not exist in all civil cases. A right to a jury trial exists if the action is one at law; but if the action is one of equity, there is no right to a jury trial (Orr v. Kneip, 1979). In cases where the pleadings seek equitable relief

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or where the legal relief is incidental, a jury trial is a matter for the trial court’s discretion (First National Bank of Philip v. Temple, 2002). For instance, where a plaintiff’s demand for attorney’s fees and expenses were incidental to his equitable specific performance action, plaintiff did not have a right to a jury trial (Skoglund v. Staab, 1981). To determine whether a right to a jury trial exists in a declaratory judgment action, it is necessary first to determine the nature of the action in which the issue would have arisen absent the declaratory judgment procedure. If there would have been a right to a jury trial on the issue, if it had arisen in an action other than one for declaratory judgment, then there is a right to a jury trial in the declaratory judgment action, and, conversely, there is no right to a trial by jury if, absent the declaratory judgment procedure, the issue would have arisen in an equitable proceeding (First National Bank of Philip v. Temple, 2002). Section 7 Rights of Accused In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

This section again mirrors provisions within the Bill of Rights of the U.S. Constitution, and therefore the case law interpreting this section essentially mirrors the case law interpreting the relevant freedoms in the U.S. Constitution. Those freedoms include the Sixth Amendment right to counsel, the right to confront witnesses and to have effective assistance of counsel, and the right to a fair and public trial. The South Dakota Supreme Court has indicated that Section 7 of Article VI is coextensive with the relevant provisions within the U.S. Bill of Rights. For instance, in Rapid City Journal v. Circuit Court (1979), the court stated that Section 7 yielded no more rights or freedoms than does the Sixth Amendment of the U.S. Constitution. Rapid City Journal dealt with the specific issue of whether Section 7 gave the press greater access to criminal proceedings than did the Sixth Amendment of the U.S. Constitution. The South Dakota Supreme Court case law citing and applying Section 7 basically mirrors the criminal procedure and jury trial case law under the Bill of Rights of the U.S. Constitution. Because of this, and because the Sixth Amendment applies to the states by way of the Fourteenth Amendment, cases brought in South Dakota asserting jury trial rights in criminal proceedings largely rely on Sixth Amendment precedent and doctrine. However, that body of federal law will not be comprehensively discussed or analyzed here. Instead, only a few issues will be noted so as to illustrate the workings of Section 7 and to show its similarity with federal law.

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Both the federal and South Dakota Constitutions guarantee the right to trial by an impartial jury, and are essentially similar in those guarantees (State v.  Moeller, 2000). The state constitutional right to jury trial extends even to offenses with maximum authorized jail sentences of less than six months, unless a trial judge assures defendant at the time of the jury trial request that no jail sentence will be imposed (State v. Bowers, 1993). In prosecutions of offenses with maximum authorized jail sentences of less than six months, a court may deny a jury trial request when the court assures defendant at the time of request that no jail sentence will be imposed (State v. Auen, 1984). Auen followed an earlier decision by the South Dakota Supreme Court in State v. Wikle (1980), in which the court held that the violation of a city ordinance, which provided for a maximum penalty of $100 and no possibility of incarceration, was a petty offense, not entitling defendant to a jury trial. According to Wikle, petty offenses do not require a jury trial. To determine whether a crime is serious or petty, the courts look to the maximum punishment and the nature of the offense, as well as the common law background, whether society views the offense with sufficient opprobrium, and the consequences of conviction. But in any criminal prosecution for which incarceration could be imposed, the defendant is entitled to a trial by jury. There is no fixed rule as to when a “speedy trial” must occur. What is reasonable speed will depend upon the facts of each case (State v. Nagele, 1964). However, a right to speedy trial should not operate so as to deprive the state of a reasonable opportunity to fairly prosecute a criminal action (State v. Fogg, 1962). Furthermore, a defendant can waive his right to a speedy trial if he does not resist postponement or move to bring his case on for trial (State v. Violett, 1961). When determining whether a defendant’s right to speedy trial has been denied, the court considers four factors:  (1)  the length of the delay; (2)  the reason for the delay; (3) whether the accused asserted the right for a speedy trial; and (4) whether the accused was prejudiced by the delay (State v. Karlen, 1999). Until there is some delay that is presumptively prejudicial, the court need not consider these four factors to determine whether there has been a speedy trial right violation. But when a delay is determined to be presumptively prejudicial, then the four factors must be considered. According to the court, delays of over one year are presumptively prejudicial (State v.  Tiegen, 2008). However, a delay of 27 months has not been found to violate speedy trial rights when the majority of that delay was attributable to defendant’s own actions (State v. Goodroad, 1994). In another case, a delay of over 39 months was not considered a violation of speedy trial rights, since the delay was not caused by the prosecution but by the defendant (State v. Krana, 1978). Regarding trial venue, a defendant does not have the right to be sentenced in the county in which the offense occurred (Gross v. Solem, 1989). However, every defendant charged with a serious felony has a constitutional right to be tried in the county in which the offense is alleged to have been committed (State v. Banks, 1986).

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With respect to the guarantee of effective counsel, there is a presumption that an attorney is competent, until a showing to the contrary is made; thus, a petitioner claiming ineffective assistance of counsel carries a heavy burden (Randall v.  Weber, 2002). In determining whether ineffective assistance of counsel has occurred, the court asks first whether trial counsel made errors that were so serious that he was not functioning as effective counsel, and second whether those errors seriously prejudiced defendant to the extent that they deprived him of a fair trial (Randall v.  Weber, 2002). Prejudice exists when there is a reasonable probability that, but for counsel’s errors, the proceeding would have turned out differently (Adams v. Leapley, 1992). A wrong or poor exercise of judgment is alone not enough to support a claim of ineffective counsel (High Elk v. State, 1984). The function of the courts is not to second-guess the tactical decisions of trial counsel; nor will the court substitute its own theoretical judgment for that of the trial attorney (State v. Dornbusch, 1986). A defendant in a criminal action has both a constitutional right to be represented by counsel and a constitutional right to represent himself, whichever he chooses (State v. Patten, 2005). However, with respect to waiving the right to counsel, the competence that is required of a defendant is the competence to waive the right, not the competence to represent himself (State v. Asmussen, 2006). Although only a brief description of some issues relating to Section 7 is provided here, it should be noted that decisions regarding jury trial rights under Section 7 were essentially decided using the doctrines and precedent of Sixth Amendment case law. Section 8 Rights to Bail—Habeas Corpus All persons shall be bailable by sufficient sureties, except for capital offenses when proof is evident or presumption great. The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require it.

The provision in the U.S. Constitution regarding habeas corpus can be found in Article I, Section 9. As a general matter, habeas corpus is used to review only whether the court has jurisdiction of the crime and the defendant; whether the sentence was authorized by law; and whether in certain cases the defendant was deprived of basic constitutional rights (Baldridge v. Weber, 2008). A writ of habeas corpus is used to bring a prisoner or other detainee before the court to determine if the person’s imprisonment of detention is lawful. Such writs are usually used to review the legality of the party’s arrest, imprisonment, or detention. It can be used, for instance, in cases where a person is held without charges, or where due process has been denied, or if a convicted prisoner argues that his or her legal representation was incompetent.

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According to the South Dakota Supreme Court, Section 8 of Article VI of the South Dakota Constitution provides that bail before conviction is a matter of absolute right in all cases, but not after conviction (City of Sioux Falls v. Marshall, 1925). Under Section 8, it is the state’s burden in an application for bail in a capital offense case to show that the proof is evident or the presumption great (State v. Kauffman, 1906). Section 9 Self-incrimination—Double Jeopardy No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense.

This section contains two important freedoms. The first is the freedom against compelled self-incrimination in criminal cases. The second is the freedom from double jeopardy. Similar freedoms or provisions in the U.S. Constitution can be found in the Fifth Amendment. Under the Fifth Amendment, federal courts have ruled on the admissibility of confessions and other evidence in criminal proceedings, the self-incrimination privilege, Miranda warnings and custodial interrogations, and the right to counsel. In deciding the scope of the privilege against self-incrimination in Section 9, the South Dakota Supreme Court is not bound by federal court interpretations of the Fifth Amendment to the U.S. Constitution, even though the two clauses of the two constitutions are similar (City of Sioux Falls v. Walser, 1922). As interpreted by the South Dakota Supreme Court, the Section 9 privilege against self-incrimination protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of testimonial or communicative nature—real or physical evidence is not covered by this privilege (State v.  Knoche, 1994). However, the privilege against self-incrimination was never intended to prevent an accused from freely and voluntarily making an extra judicial confession or admission (State v. Hinz, 1960). Generally, the self-incrimination privilege in the South Dakota State Constitution is similar to that in the Fifth Amendment to the U.S. Constitution. However, there is a difference in the two clauses. The phrase “to give evidence against himself,” as used in the South Dakota Constitution, is different from and grants a broader privilege than the phrase “to be a witness against himself,” as used in the Fifth Amendment (State v. Neville, 1984). In State v. Neville, the South Dakota Supreme Court held that a defendant’s refusal to submit to a blood test constitutes evidence of a testimonial nature within the protection of the privilege against self-incrimination. Although acknowledging that the U.S. Supreme Court had determined that evidence of an accused’s refusal to take a blood test does not infringe upon Fifth Amendment rights, the South Dakota Supreme Court issued a more individual rights-protective

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interpretation to Article VI, Section 9 of the South Dakota Constitution. In granting broader protections under the South Dakota State Constitution, the court recited the rule that states are free to provide greater protections under their own constitutions than are provided by the federal Constitution (citing State v. Opperman, 1976).78 Although the court recognized that the privilege against self-incrimination extends only to communicative or testimonial evidence, and not to the obtaining of physical evidence such as breathalyzer or other chemical evidence, the court found that a refusal to take a blood test is not physical evidence but communicative evidence, and thus included within Section 9. Requiring defendant to approach an identification witness and show his tattoo, which had already been seen and acknowledged by another witness, did not violate the privilege against self-incrimination; the court found that the defendant merely demonstrated characteristics as to the source of physical evidence to which observers could and did testify (State v. Knoche, 1994). Moreover, the court has stated that Miranda warnings are not applicable to physical dexterity tests performed by a driver who had been arrested for driving while under the influence, insofar as dexterity tests are real physical evidence and not protected by the constitutional privilege against self-incrimination (State v. Roadifer, 1984). Miranda warnings are only required when a person is being interrogated in custody at the station or otherwise deprived of his freedom of action in any significant way (State v. Bowker, 2008). A law enforcement officer is not required to deliver Miranda warnings when his questions constitute general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him in custody (State v. Johnson, 2007). The test for determining whether someone is in custody for purposes of the Miranda warnings is a two-part test: first, what were the circumstances surrounding the interrogation, and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave? The issue of whether an incriminating statement has been voluntarily given involves a review of the totality of the circumstances and the effect they had upon the will of the defendant. Factors to be considered include the defendant’s youth and lack of education or low intelligence, the lack of any advice to defendant of his constitutional rights, the length of the detention, repeated and prolonged nature of the questioning, and the use of physical punishment such as deprivation of food or sleep (State v. Dickey, 1990).

William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977). 78

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In determining whether a confession is voluntary, the court must consider not whether the interrogator’s statements were the cause of the confession, but whether the statements were so manipulative or coercive that they deprived defendant of his ability to make an unrestrained, autonomous decision to confess (State v. Smith, 1998). The state has a heavy burden of demonstrating beyond a reasonable doubt that defendant voluntarily and knowingly waived his right against self-incrimination, and courts must indulge in every reasonable presumption against waiver (State v. Holland, 1984). The double jeopardy clauses of both the Fifth Amendment to the U.S. Constitution and Section 9 of the South Dakota Constitution protect individuals from successive prosecutions for the same criminal act after acquittal, a second prosecution for the same offense post-conviction, or multiple punishments for the same offense (Weiker v. Solem, 1994). The purpose of the Section 9 prohibition against double jeopardy is to make sure that persons are subject only once to a prosecution that may result in criminal punishment (State v. Weekley, 1976). However, the state legislature may impose multiple punishments for the same conduct without violating the double jeopardy clause if it clearly expresses its intent to do so (State v. Weaver, 2002). Successive prosecutions under two statutes are barred by double jeopardy not only when the elements of the statutes are the same, but also when, to establish an essential element of an offense charged in a subsequent prosecution, the government will have to prove conduct that constitutes an offense for which defendant has already been prosecuted (State v. Groves, 1991). Under the same evidence test, the same act or transaction may constitute two distinct offenses if each offense as defined by statute requires proof of some fact or element not required to establish the other (State v. Seidschlaw, 1981). The defense of double jeopardy is available only when separate offenses are in substance the same, so that the evidence that proves the one would prove the other; however, if an essential element of one is not necessarily present in the other, there is no double jeopardy (State v. Corle, 1980). A defendant cannot claim double jeopardy even though a single transaction gives rise to both a first degree robbery charge and a concealed weapon charge, since the two crimes involved require proof of different facts (State v. Coe, 1979). Moreover, the same act or transaction may constitute violation of both federal and state laws, and conviction or acquittal in one jurisdiction does not prevent subsequent prosecution in the other, if the criminal act is one over which both sovereignties have jurisdiction and there is no statute to the contrary (State v. West, 1977). Section 10 Indictment or Information Modification or abolishment of grand jury. No person shall be held for a criminal offense unless on the presentment or indictment of a grand jury, or

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information of the public prosecutor, except in cases of impeachment, in cases cognizable by county courts, by justices of the peace, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger: provided, that the grand jury may be modified or abolished by law.

With respect to the provision in Section 10 regarding a presentment of indictment for capital crimes, a similar provision can be found in the Fifth Amendment to the U.S. Constitution. Regarding the construction of Section 10, the South Dakota Supreme Court has ruled that the phrase “indictment of a grand jury” means the indictment of a duly and legally-constituted grand jury, drawn and impaneled according to law, and pursuant to notice required by law (State v. Johnson, 2007). Section 11 Search and Seizure The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.

A related provision in the U.S. Constitution can be found in the Fourth Amendment. There is substantial federal case law under the Fourth Amendment dealing with the freedom from unreasonable searches and seizures, as well as the requirements for a lawful arrest and the exceptions to the warrant requirement. This body of law encompasses a wide array of the constitutional law on criminal procedure and will not be repeated here. Generally, as interpreted by the South Dakota Supreme Court, the South Dakota State Constitution follows the requirements of the Fourth Amendment.79 Therefore, because the Fourth Amendment and Section 11 are nearly identical, the South Dakota Supreme Court has largely looked to U.S. constitutional jurisprudence when interpreting and applying Section 11 (State v. Schwartz, 2004). The Fourth Amendment prohibition against unreasonable searches and seizures is applicable to the states through the Fourteenth Amendment (State v.  Madsen, 2009). Consequently, the great majority of case law interpreting Section 11 mirrors the federal case law interpreting the Fourth Amendment. However, as acknowledged by the South Dakota Supreme Court, the state constitution may give broader protections than the Fourth Amendment gives, but the state constitution cannot take away or diminish protections granted by the Fourth Amendment. For a discussion of South Dakota interpretations and applications, see Wendy Kloeppner, South Dakota Fails to Recognize A  Reasonable Expectation of Privacy in a Patrol Vehicle, 42 S.D. L. Rev. 469 (1998). 79

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One way in which Article VI, Section 11 of the South Dakota State Constitution provides greater protections than those afforded by the Fourth Amendment to the U.S. Constitution can be found in State v.  Opperman (1976). In Opperman, the South Dakota Supreme Court held that a warrantless inventory search of a closed console in a car towed for a mere parking violation was an unreasonable search under the state constitution. The court recognized that under the Fourth Amendment such a search would not be an unreasonable and hence unconstitutional one, but it nonetheless interpreted the state constitution to afford greater protections than those granted by the U.S. Constitution. Although acknowledging that the language of Section 11 is almost identical to that of the Fourth Amendment, the court found that the meaning and purpose of Section 11 gave more protection to the individual than does the Fourth Amendment. In Opperman, the court held that for a warrantless inventory search to be reasonable, it had to be confined to safeguarding those items within the searching officer’s plain view. 80 Even though Opperman granted broader search and seizure protections only in certain specific circumstances, criminal defendants subsequently have attempted to enlarge the scope of Opperman, arguing for broader state constitutional protections in other circumstances. However, those attempts have generally not been successful. In State v. Flittie (1982), which modified Opperman’s holding, the court held that a warrantless inventory search of a locked automobile trunk, the contents of which were not in plain view, did not violate the state constitution, as long as the good faith inventory search was done according to reasonable uniform policies. In State v. Schwartz (2004), the argument was made that Section 11 exceeded the protections of the Fourth Amendment insofar as it prohibited the search of a person’s trash without a warrant. Again, the court declined to extend Section 11 to provide constitutional protection against unreasonable searches and seizures of trash. In Schwartz, the court held that the warrantless trash searches conducted by the police were not unreasonable searches and seizures under either the Fourth Amendment or the South Dakota Constitution. Likewise, in State v. Kottman (2005), the argument was asserted that the South Dakota State Constitution gave greater protections with respect to parole searches than does the Fourth Amendment. In ruling against such broader protections, the court acknowledged that the Opperman holding had been seriously curtailed.81 The court stated that to interpret a provision of the South Dakota State Constitution in a way that would grant a higher standard of protection than a similarly-worded provision in the federal Constitution, a court must do more than just simply For a discussion of constitutional law principles governing automobile searches, see Grant Walker, No Limits. State v. Martin: The Scope of a Warrantless Inventory Search, 47 S.D. L. Rev. 157 (2002). 81 See State v. Hejhal, 438 N.W.2d 820 (1989). 80

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make such an interpretation or disagree with the U.S. Supreme Court’s interpretation of the federal Constitution. Instead, the court must find that the text, history or purpose of a South Dakota constitutional provision supports a different interpretation from the corresponding federal provision. In Kottman, no such finding was made. As the South Dakota Supreme Court has ruled, the state constitutional protection against unreasonable searches and seizures is similar to that provided by the Fourth Amendment (State v. Meyer, 1998). Under both the state and federal constitutions, searches and seizures must be supported by warrants based on probable cause that the search will yield evidence of a crime (State v. Hirning, 1999). Generally, this finding of probable cause must be made before any search warrant may be issued and the warrant must be supported by an affidavit describing with particularity the place and person to be searched (State v.  Jackson, 2000). Warrantless searches and seizures are unconstitutional, unless there is a showing that the actions were reasonable, based on probable cause, and that the exigencies of the situation prevented the obtaining of a warrant (State v. Meyer, 1998). The South Dakota Supreme Court has ruled unconstitutional a state statute providing that the actual finding of property searched for by police officers under a search warrant shall constitute conclusive proof that there was probable cause for issuance of the warrant, stating that the constitution requires probable cause to exist prior to obtaining the warrant (State v.  Lane, 1957). Another statute rendering all relevant evidence seized under a search warrant to be admissible, notwithstanding any defect or insufficiency in the issuance of that warrant, was also found to violate the search and seizure provisions of the state constitution (State v. McCreary, 1966). There are, however, a number of well-recognized exceptions to the warrant requirement for any search or seizure. 82 A warrantless search of an individual can be conducted when that search is made in conjunction with an arrest, so long as the search is contemporaneous with the arrest and is confined to the immediate vicinity of the arrest (State v.  Meyer, 1998). Such a warrantless search is justified by the need to prevent the destruction of evidence. The protection of an arresting police officer may also justify a warrantless search; however, officer protection will not justify any and every search—only the most legitimate of safety concerns will support a warrantless protective sweep (State v. Ashbrook, 1998). Warrantless searches may also be conducted when exigent circumstances exist (State v. Westerfield, 1997). An officer, for instance, may legally search a premises without a warrant when an emergency exists and there is no time to

See generally Emily Sovell, State v.  Hanson:  Has the Exigent Circumstances Exception to the Warranty Requirement Swallowed the Rule?, 45 S.D. L. Rev. 163 (2000). 82

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obtain a warrant, when he is in hot pursuit of an escaping suspect, when he knows the contraband is threatened with immediate destruction or removal, or when the search is incidental to a valid arrest. In order to determine when exigent circumstances exist, the court considers the following factors: 1) whether a grave offense is involved; 2) whether the suspect is reasonably believed to be armed; 3) whether a clear showing of probable cause exists, including reasonably trustworthy information to believe that the suspect committed the crime involved; 4) whether there is a strong reason to believe the suspect was on the premises; 5) whether a likelihood exists that the suspect will escape; 6) whether the entry, though not consented to, is made peaceably; and 7) the time of the entry (State v. Hanson (1979); State v. Meyer (1998)). For the exigent circumstances exception to the warrant requirement to prevail, there must be circumstances that present a real danger to the police or public, or a real threat that evidence might be lost (State v. Dillon, 2007). The court will inquire into whether there was a reasonable belief that a delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of a suspect’s escape. Another exception to the warrant requirement is the plain view doctrine.83 Under this doctrine, the police officer cannot have violated the Fourth Amendment to first be in a location where the evidence is in plain view, and the incriminating nature of the evidence must be readily apparent. Automobile stops present yet another exception to the warrant requirement.84 Although probable cause is generally required for a search, the level of police suspicion necessary to stop a vehicle is not equivalent to the probable cause necessary for an arrest or a search warrant; reasonable suspicion is all that is required (State v. Lockstedt, 2005). Under the automobile exception to the warrant requirement, for instance, the legal discovery during an automobile stop of contraband ammunition creates a probable cause for police officers to believe that other parts of the vehicle might contain additional contraband or evidence, thus validating a warrantless search of the vehicle. According to the rule, if a police officer develops reasonable suspicion of the existence of other criminal activity during the course of a valid traffic stop, then the officer may expand the scope of the investigation to explore that suspicion. The test is not probable cause, but reasonable and articulable suspicion (State v. Haar, 2009). A warrantless inspection of a business in a closely regulated industry can also be constitutional if a substantial government interest supports the regulatory scheme pursuant to which the inspection is made, if the warrantless inspection is necessary to further the regulatory scheme, and if the statute’s See generally Barton Raymond Banks, State of South Dakota v.  Vogel and the Open Fields Exception to the Fourth Amendment, 35 S.D. L. Rev. 135 (1989). 84 See generally Carla Kock, State v.  Akuba:  A  Missed Opportunity to Curb Vehicle Searches of Innocent Motorists on South Dakota Highways, 51 S.D. L. Rev. 152 (2006). 83

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inspection program provides a constitutionally adequate substitute for a waiver (State v. Rechtenbach, 2002). Although the text of the Fourth Amendment contains no language about remedies for violations, the U.S. Supreme Court has crafted and applied the exclusionary rule, which prohibits the admission into evidence of material obtained from an illegal search or seizure.85 The exclusionary rule is a judicially-created remedy for deterring illegal searches and seizures and for bolstering the protections contained in the Fourth Amendment and this Section (State v.  Labine, 2007). However, evidence obtained by way of an invalid search will not be excluded under the good faith exception to the exclusionary rule, when an officer’s reliance on a technically sufficient but invalid search warrant is objectively reasonable (State v. Sorensen, 2004). Under this good faith exception, evidence is admissible when police officers reasonably rely on a warrant that is subsequently invalidated because a judge finds there was an insufficient basis for the issuing magistrate to find probable cause. Even if a search warrant is overbroad, for instance, an officer’s reliance on the warrant may be objectively reasonable, and thus evidence obtained from the search is admissible under the good faith exception to the exclusionary rule. Also, under the “inevitable discovery exception” to the exclusionary rule, illegally obtained evidence may be admitted if it ultimately would have been discovered by legitimate means (State v. Shearer, 1996). Section 12 Ex Post Facto Laws—Impairment of Contract Obligations—Privilege or Immunity No ex post facto law, or law impairing the obligation of contracts or making any irrevocable grant of privilege, franchise or immunity, shall be passed.

A similar provision in the federal Constitution appears in Article I, Section 10. Ex post facto prohibitions bar retroactive application of any law inflicting greater punishment for a crime than did the law existing at the time the crime was committed (Meinders v.  Weber, 2000). This prohibition of ex post facto laws serves two principles. First, legislative enactments must give fair warning of their effect, and people must be able to rely on the current law until it is legislatively changed. Second, laws cannot arbitrarily or vindictively punish persons for past acts that were not criminal or were less criminal when they were committed. A crucial issue in any ex post facto inquiry is whether the law changes the legal consequences of acts that were completed before the law’s effective date (Stumes v. Delano, 1993). Statutes that merely provide a remedy without 85 See, for instance, the Court’s articulation of the exclusionary rule in Mapp v. Ohio.

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affecting anyone’s substantive rights do not violate the ex post factor prohibition (Himrich v. Walter, 1935). An habitual offender statute that did not create a new offense but merely prescribed punishment for subsequent offenses, which in the discretion of the court could be made more severe than punishment provided for prior offenses, did not violate the ex post facto clause (State v. Rollinger, 1982). The test for determining whether a statute violates the contract clause of Section 12 is the same as that used under the United States Constitution (Equipment Manufacturers Institute v.  Janklow, 2002). When presented with the issue of whether a statute violates the contract clause in Section 12, the court’s first inquiry is whether there has been a substantial impairment of the contractual relationship (Buchholz v. Storsve, 2007). Yet even if there is a substantial impairment of a contractual relationship, the statute may survive if the impairment is reasonable and necessary to serve an important public purpose. Since franchise rights conferred upon a utility by the state are subject to control by the legislature, statutory rights granted a rural electric cooperative to compete for customers within a certain territory did not constitute an irrevocable franchise within the meaning of Section 12 (Matter of Certain Territorial Electricity Boundaries, 1979). Under statutes requiring the Public Utilities Commission to assign service areas to electrical utilities, exclusive grants to utilities to provide retail electrical service within an assigned area are not irrevocable franchises in violation of Section 12, especially since the legislature retains the power to alter the regulatory scheme governing those utilities. Section 13 Private Property Not Taken Without Just Compensation—Benefit to Owner—Fee in Highways Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the Legislature and according to Section 6 of this article. No benefit which may accrue to the owner as the result of an improvement made by any private corporation shall be considered in fixing the compensation for property taken or damaged. The fee of land taken for railroad tracks or other highways shall remain in such owners, subject to the use for which it is taken.

This section was amended in 1962, by deleting a requirement that payment be ascertained and paid before possession was taken. Section 13 deals with the power of eminent domain and its constitutional exercise. It prohibits the taking of private property without just compensation. A similar power and obligation exists at the federal level and is articulated in the Fifth Amendment. The power of eminent domain is an inherent right of the state (Darnall v. State, 1961). The focus of Section 13 is on private property taken or damaged

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in the exercise of the government’s power of eminent domain; it was not intended to apply, for instance, to damages based on negligent construction or design of public works (Vesley v. Charles Mix County, 1939). The state’s power of eminent domain can support a condemnation action to take private property for a public use, as long as the property owner is justly compensated.86 Inverse condemnation suits are brought by property owners whose property has been damaged or diminished in value by some governmental action and who have received no compensation from the government. There is no requirement that the government compensate property owners when it exercises its police power to take property that constitutes a public nuisance or danger (Cody v. Leapley, 1991). Even where private property is intentionally, purposely, or deliberately taken or damaged by public use without the owner’s consent, there is no requirement that just compensation be given to the owner when that property poses a nuisance. This rule applies in three circumstances: a taking or damaging that occurs during actual warfare, to prevent an imminent public catastrophe or disaster, or to abate a public nuisance (City of Rapid City v. Boland, 1978). For instance, the government’s destruction of elk suffering from a contagious disease, when that destruction was necessary to prevent the spread of that disease, is not a taking of property for public use within the meaning of the constitutional provisions requiring just compensation (South Dakota Department of Health v. Heim, 1984). Whether the owner of the elk is entitled to compensation for the destruction of his herd depends on whether the destruction of that herd was necessary to abate a public nuisance imminently hazardous to public health or safety. However, if it was not necessary to kill all the elk, then whatever were unnecessarily destroyed were taken for public use within the meaning of this Section—and hence, the owner was entitled to compensation (South Dakota Department of Health v. Owen). Section 13 has similarities to Section 2 of Article VI, which requires that due process be given for any property deprivation. For instance, even though an abatement of a public nuisance does not entitle the owner to compensation, the owner is normally entitled to due process to determine whether the property is in fact a nuisance. A summary abatement of a public nuisance is allowed only where the property constitutes a public nuisance that poses an imminent hazard to the public safety or welfare, and the destruction is the only adequate method of eliminating that hazard. The provisions in Section 13 provide land owners more protection against a taking of their property than does the Fifth Amendment to the United States Constitution (Benson v.  State, 2006). In Benson, the South Dakota Supreme Court stated that the U.S. Supreme Court had recognized that the states were 86 For a discussion of measuring the compensation to be paid in condemnation proceedings, see

William Carroll, City of Sioux Falls v. Kelley: Failing to Rein in Runaway Damages in Condemnation Proceedings, 40 S.D. L. Rev. 177 (1995).

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free to impose public use requirements that are stricter than federal requirements.87 Indeed, South Dakota has consistently done so. In its interpretation of Section 13, the South Dakota Supreme Court has adopted the “use by the public” rule. This rule requires that there be a use or right of use on the part of the public. By adopting this rule over the alternative “public benefit” rule, the court has stated that the South Dakota Constitution provides its landowners more protection against a taking of their property than does the U.S. Constitution. The reason for this greater protection is because the U.S. Supreme Court, under its “public benefit” rule, has concluded that a taking from one private party of property that will ultimately go to another private party complies with the “public use” constitutional requirement as long as it ultimately serves a public purpose or benefit. In addition to how the South Dakota Supreme Court interprets the public use requirement, there is another way in which Section 13 differs from the Fifth Amendment. The South Dakota Constitution requires that the government compensate a property owner not only when a taking has occurred, but also when private property has been damaged. Thus, even though no portion of a private property is physically taken, the owner may still be entitled to compensation under Section 13 if the government action causes damage to that property, as long as the consequential injury is peculiar to the owner’s property and not of a kind suffered by the public as a whole (Hurley v. State, 1966). The South Dakota Supreme Court has stated that the damage clause in Section 13 affords more rights to its citizens than does the Fifth Amendment. Essentially, the South Dakota Constitution provides an additional theory by which a plaintiff may bring a claim for damages against the state. This reflects the intent of Section 13 to extend the compensation remedy to incidental or consequential injuries to property that is not actually taken for public use. Any compensation, however, requires that the consequential injury be peculiar to the owner’s land and not of a kind suffered by the public as a whole (State Highway Commission v. Bloom, 1958). This rule, for instance, has been applied in a number of South Dakota cases involving a change in street grade, which in turn damaged the abutting property that was not actually physically invaded (see, e.g., Hurley v. State, 1966). Public takings warranting compensation have also been found where a county, by means of a drainage ditch along a county road, artificially collected surface water from the right-of-way and from lands of other owners and discharged it in exaggerated quantities not into a natural water course but onto another individual’s land, where it remained until disappearing through natural means as percolation and evaporation (Bogue v. Clay County, 1953).

87 Kelo v. City of New London, 545 U.S. 469 (2005).

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To recover under the consequential damages rule, a property owner must suffer an injury that is different in kind and not merely in degree from that experienced by the general public (Krier v. Dell Rapids, 2006). For instance, in Krier, it was found that an owner of property abutting a township road that had its surface changed from asphalt to gravel did not sustain an injury that was separate and distinct from the public as a whole, and thus was not entitled to recover consequential damages in an inverse condemnation action. The injury involving the alleged decrease in the owner’s property value due to resurfacing was the same as the injury to other properties and differed only in amount or degree. The South Dakota State Constitution and the U.S. Constitution are similar in their definitions and applications of the “takings” provision. The purpose of the takings clause under the Fifth Amendment is not to prohibit all governmental takings or interference with private property, but rather to require that compensation be paid by the government in the event that government action rises to a taking (Benson v.  State, 2006). A  plaintiff seeking redress against the government under a regulatory takings claim must proceed under one of four theories. The plaintiff must allege: (1) a per se regulatory physical taking, where the government requires an owner to suffer a permanent physical invasion of her property; or (2)  a per se total regulatory taking that deprives an owner of all economically beneficial uses of the property, but an “intermittent and temporary” physical invasion does not qualify as a per se regulatory taking (Benson v. State); or (3) a regulatory taking when a temporary or partial taking is alleged; or (4) a land-use exaction violating the standards as set forth in Nollan v. California Coastal Commission.88 When considering a purported regulatory taking, the cause-in-fact of the harm must be examined. In doing so, the court must identify the specific harm to the property and whether the actions causing that harm can be attributed to the state or to some other entity or person not under the direct authority or control of the state (Benson v. State, 2006). The general rule is that while property may be regulated to a certain extent, if that regulation goes too far it will be recognized as a taking. A physical occupation that is less than permanent and amounts to no more than a temporary physical invasion does not constitute a per se regulatory physical taking (Benson v. State, 2006). Section 14 Resident Aliens’ Property Rights No distinction shall ever be made by law between resident aliens and citizens, in reference to the possession, enjoyment or descent of property.

88 Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

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State law controls the right of an alien to hold real property in the particular state, and most states give aliens the right to own real property. Under common law, aliens had property rights similar to those of citizens. Currently, most states have enacted statutes following the common law. This section coincides with the general rule and gives aliens the right to hold property in South Dakota. Section 14 has never been amended, nor has it been the subject of significant case law. However, the South Dakota Supreme Court has ruled that certain benefits from welfare programs are not “property” for purposes of Section 14’s prohibition of any distinction between resident aliens and citizens (Cid v.  South Dakota Department of Social Services, 1999). Since a legal resident alien has no protective property interest in terminated welfare benefits, such termination does not violate the state constitutional provision prohibiting distinctions between resident aliens and citizens regarding the possession or enjoyment of property. Section 15 Imprisonment for Debt No person shall be imprisoned for debt arising out of or founded upon a contract.

Section 15 has roots in medieval England’s practice of imprisoning debtors.89 This practice was imported to America, but was quickly subject to reform, beginning in the eighteenth century. Eventually, every state banned imprisonment as a remedy against or enforcement of broken debt agreements.90 Section 15 has been applied in a fairly limited array of actions. Citing this section, the South Dakota Supreme Court struck down a statute subjecting a contractor to imprisonment for failing to pay creditors furnishing labor and materials (Commercial National Bank of Sturgis v. Smith, 1932). According to the court, the legislature cannot provide that a contractor shall be deemed guilty of a crime punishable by imprisonment for failing to pay, from the money paid to him under contract, the claims of creditors furnishing labor and materials. This section was also considered in connection with a statute prohibiting insufficient-funds or no-account checks. A  defendant could be convicted, without violating Section 15 and its prohibition of imprisonment for debts arising out of or founded upon a contract, for writing a check against a non-existing account to a store displaying a sign stating that a $5.00 charge would be imposed for every returned check. A  key distinction is that the 89 For a general historical background of Section 15, see Becky Vogt, State v. Allison: Imprisonment

for Debt in South Dakota, 46 S.D. L. Rev. 334 (2001). 90 Id. at 347.

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statute prohibited the passing of “no account” checks, rather than the failure to pay checks (State v. Mitchell, 1981). In Mitchell, the defendant claimed that the store’s practice of imposing a charge for returned checks created a contractual arrangement, preventing his imprisonment for passing the bad check. But according to the court, the South Dakota Bad Check Law did not deal with the debt evidenced by the check, and so could not be termed a criminal sanction for failure to pay a civil debt. Consequently, the defendant’s conviction did not violate the constitutional prohibition of imprisonment for debts arising out of or founded upon contract. The court has also held that conditioning probation on a defendant’s repayment of his appointed counsel’s fees does not violate Section 13 (White Eagle v. State, 1979). In addition, a jail sentence for contempt in refusing to pay an alimony decree has not been found to constitute an imprisonment for a debt arising out of a contract (Fritz v. Fritz, 1922). There are two issues that must be addressed in any case involving Section 15. The first involves the determination of whether a debt exists. In State v. Allison (2000), the court articulated a narrow definition of debt as “a liability to pay money.” The court further reasoned that Section 15 only pertained to “private debts,” and not to a more general obligation of the type imposed by statute and by a National Guard enlistment agreement mandating the return of military equipment at the end of enlistment. The second issue under Section 15 involves a finding that an existing debt must arise out of or be founded on a contract. The question here, for instance, can be whether a particular debt arises out of a contract, or whether it arises out of tort, statute, or some other source of obligation. Section 16 Military Subordinate to Civil Power—Quartering of Soldiers The military shall be in strict subordination to the civil power. No soldier in time of peace shall be quartered in any house without consent of the owner, nor in time of war except in the manner prescribed by law.

This section has never been amended and has not been the subject of any significant case law. Section 17 Taxation Without Consent—Uniformity No tax or duty shall be imposed without the consent of the people or their representatives in the Legislature, and all taxation shall be equal and uniform.

Section 17’s requirement of equal and uniform taxation is not necessarily violated by a statute imposing occupation or privilege taxes (Schmitt v. Nord, 1947). In Schmitt, a statute imposing an excise tax on retail sales of butter substitutes did not violate the constitutional provision requiring equal and

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uniform taxation. The test to be applied, according to the court, was whether the classification was reasonable and bore some relation to the subject at hand. After examining the purpose and aims of the statute, the court found that the classification was valid, since it arose from differences related to state revenue. The test of uniformity under Section 17 is substantially the same as under the Fourteenth Amendment to the U.S. Constitution (Dean v.  Coddington, 1964). However, in Dean, the court held that Section 17 only requires that taxation be equal and uniform, not that revenues from that taxation be uniformly distributed. Thus, a plaintiff could not challenge a taxation scheme on the grounds that the uniformity provision of Section 17 requires those taxes to be uniformly distributed. Section 17 does permit classifications. The legislature, for instance, may select and classify some occupations for taxation and omit others, provided the classification is reasonable and bears some relation to the subject at hand (State ex rel. Botkin v. Welsh, 1933). The court has also ruled that the basis of classification used in a statute imposing a tax according to the number of stores owned by a taxpayer is reasonable and related to the subject involved, and is therefore permissible under Section 17 (Roddewig v. Kutcher, 1942). However, Section 17 requires that the taxes imposed shall fall similarly on all persons who are in substantially the same situation (In re Watson, 1903). Section 18 Equal Privileges or Immunities No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.

It should be noted that Section 18 applies to both citizens and corporations. This textual language is different from related provisions in the U.S. Constitution. Similar provisions in the federal Constitution regarding the granting of special privileges can be found in Article III, Section 23, and the much-applied and frequently interpreted Equal Protection Clause can be found in the Fourteenth Amendment. Under both the Fourteenth Amendment to the U.S. Constitution and Section 18 of the South Dakota Constitution, equal protection of the law requires that the rights of every person under similar circumstances be governed by the same rule of law (State v. Geise, 2002). Equal protection does not require that all persons be treated identically, but it does require that distinctions have some relevance to the purpose for which the classifications are made. In its equal protection jurisprudence, the U.S. Supreme Court has developed a multi-tiered level of scrutiny. Under this approach, different levels of scrutiny are applied to different types of legislative classifications. The most deferential level of scrutiny is rational basis review, which requires only a rational relationship between the legislative classification and a legitimate

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government purpose.91 The most demanding type of judicial review is strict scrutiny, which applies to certain legislative classifications that improperly impinge on fundamental rights or suspect classes.92 Under strict scrutiny, the legislative classification must be necessary to serve a compelling government purpose, which cannot be achieved through any less restrictive means. Between rational basis review and strict scrutiny lies intermediate scrutiny, which has been applied to classifications involving gender and illegitimacy.93 Under intermediate scrutiny, the classification must serve an important government purpose and must be substantially related to the achievement of that purpose. In Geise, the defendants appealed from a conviction of violating the vehicle weight restriction laws, arguing that the weight restrictions on different classes of vehicles violated equal protection guarantees, since vehicles with overweight permits were treated differently from non-permitted overweight vehicles. The state court disagreed. Finding that the statute did not encompass a fundamental right, a suspect classification or an intermediate scrutiny classification, the court applied a two-pronged rational basis test. First, an inquiry was made into whether the statute sets up arbitrary classifications among various persons subject to it; and second, an analysis occurred into whether a rational relationship between the classification and some legitimate legislative purpose existed. In applying the first prong, the court looks to see if the statute applies equally to all people. It does not require that all persons be dealt with identically, but it does require that any distinctions made have some relevance to the purpose for which those distinctions are made. In Geise, the court found that the statutes applied equally to all vehicle operators in similar circumstances, and the permitting process applied equally to all classes similarly situated—the rule being that equal protection applied to persons, not vehicles. The court then moved to the second prong to determine whether there was a rational relationship between the classification and some legitimate legislative purpose. The court found that the overweight statute served the legitimate public goal of preserving the public roadways from damage caused by overweight vehicles. According to the court, the state does not violate the equal protection clause merely because the classifications made by its laws are imperfect. If the classification has some reasonable basis, it does not offend the constitution simply because the classification is not made with mathematical precision or because in practice it results in some inequality (State v. Geise, 2002). The equal protection clause in the South Dakota Constitution largely mirrors the Equal Protection Clause in the Fourteenth Amendment of the U.S. 91 Romer v. Evans, 517 U.S. 620 (1996). 92 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976). 93 U.S. v. Virginia, 518 U.S. 515 (1996).

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Constitution. Under the equal protection approach, there are three different tests that are applied, depending upon the nature of the interest involved. First, the strict scrutiny test applies only to fundamental rights or suspect classes (Budahl v. Gordon and David Associates, 1980). Second, the intermediate or substantial relation test applies to legitimacy and gender classifications (State ex rel. Wieber v. Hennings, 1981). Finally, the rational basis test applies to all other classes (Eischen v. Minnehaha County, 1985). Thus, the overweight vehicle statute in Geise was evaluated under the rational basis test, since those statutes did not encompass a fundamental right, a suspect classification, or an intermediate scrutiny classification. The rational basis test, rather than a heightened scrutiny test, was used to determine a legal resident alien’s equal protection challenge to a state administrative rule resulting in the termination of certain welfare benefits (Cid v. South Dakota Department of Social Services, 1999). Classifying aliens differently does not constitute an equal protection violation, unless the classifications are not rationally related to some legitimate government purpose. According to the court in Cid, the classification of aliens bore a rational relationship to the Department of Social Services’ legitimate interest in implementing the nation’s immigration policy and its uniform rules with respect to alien eligibility for public benefits. A statute that imposed a special limitation period on minors with medical malpractice claims, as opposed to minors with any other kind of tort claim, was found to violate the equal protection provisions of both the federal and state constitutions (Lyons v.  Lederle Laboratories, 1989). Applying the two-pronged rational basis test, the court ruled that the classification was arbitrary and not rationally related to the legitimate purpose of alleviating a medical malpractice crisis. In Lyons, the court found that the statute violated the first prong, since it did not apply equally to all people; rather, it created an arbitrary classification of minors who have medical malpractice claims, as opposed to minors with any other kind of tort claim who have a longer time period in which to bring those claims. Having determined that an arbitrary classification exists, the court then inquired into whether there is a rational relationship between  the classification and some legitimate legislative purpose. Under this inquiry, the court did not find any rational basis for assuming that medical malpractice claims will diminish simply by requiring that lawsuits be instituted at an earlier date. In an equal protection challenge, the burden is on the one attacking the legislative classification to defeat every conceivable basis which might support it (People in Interest of Z.B., 2008). Under rational basis review, the state’s classification scheme will be upheld if there is a plausible or conceivable reason for the distinction. In the criminal context, the equal protection clause prohibits the government from discriminatory enforcement of the law (State v. Secrest, 1983). To

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establish a violation of the equal protection clause, a defendant must prove selective enforcement based on classifications such as race, sex, or religion. The court has also interpreted Section 18 as prohibiting selective enforcement based upon an unreasonable or arbitrary classification (State v. Secrest, 1983). However, no constitutional problem arises when, because an action violates two different criminal statutes, the government picks one of those statutes under which to prosecute, providing that the government does not discriminate against any class of defendants. Furthermore, the fact that a prosecutor may be influenced by the penalties available for the charges does not alone give rise to a violation of equal protection. Thus, in Secrest, the court upheld a conviction under statutes that imposed greater penalties for habitual defenders. However, in general, imposing on one person different punishments or different degrees of punishment than are imposed on all others for like offenses is a denial of equal protection. On the other hand, prosecutors are granted very broad prosecutorial discretion without violating equal protection (State v. Gerdes, 1977). Section 19 Free and Equal Elections—Right of Suffrage—Soldier Voting Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage. Soldiers in time of war may vote at their post of duty in or out of the state, under regulations to be prescribed by the Legislature.

The South Dakota Supreme Court announced in Bailey v. Jones (1966) that Section 19 incorporated the “one-person, one-vote” doctrine announced by the U.S. Supreme Court in Baker v.  Carr (1962). In Bailey, the court found that the election of county commissioners had to comply with the one-person, one-vote doctrine. Holding that the Board of Commissioners of Minnehaha County was unconstitutionally apportioned, the Bailey court found that commissioners from inside the city represented 32,733 persons, and those outside the city represented 7,036 persons—a ratio of over 4 to 1. Moreover, three commissioners representing 21,109 persons (24 percent of the county’s population) constituted a majority of the board and could outvote the other two commissioners who represented 65,466 persons (76 percent). According to the court, in order that elections “shall be free and equal,” as required by Section 19, the elections of county commissioners had to comply with the one-person, one-vote rule. The electoral scheme in County of Tripp v. State (1978) was also found to violate Section 19. In County of Tripp, all of the Todd County voters were allowed to vote for candidates from all three Tripp County districts, whereas Tripp County voters were only allowed to vote for candidates from their own districts. Because there was no rational basis, much less a compelling state interest, for the requirement that voters reside in Todd County in order to vote for

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all three commissioners, the court ruled the election process unconstitutional. The court found that this scheme essentially disenfranchised Tripp County residents, who were excluded from participation in the election of two of their three county commissioners, thus violating the “one-person, one-vote” doctrine. According to the court: “The right of suffrage can be denied by dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Section 20 Courts Open—Remedy for Injury All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.

This provision is often referred to as the “open courts” provision.94 Its connection with the sovereign immunity doctrine is explained and analyzed under the discussion presented in the chapter on Article III, Section 27. This open courts provision provides a right of access to the courts (Green v. Siegal, Barnett & Schutz, 1996). It guarantees that for any causes of action recognized by law, the courts shall be open and afford a remedy. However, reasonable conditions on those causes of action do not violate this provision. Nor can this provision be used to create new causes of action or to prohibit statutorily recognized barriers to recovery (Hancock v. Western South Dakota Juvenile Services Center, 2002). Section 20 does not allow courts to usurp functions properly belonging to the legislature. The provision just means that where a cause of action exists at common law without statutory abrogation, a plaintiff has the right to litigate in the courts of the state (Oien v. City of Sioux Falls, 1986). The open courts provision does not prevent the legislature from changing the law; nor does it abolish sovereign immunity. However, it can limit some sovereign immunities in ways discussed under Section 27 of Article III. The open courts provision in this section is similar to provisions in thirty-seven other state constitutions, and these provisions have roots back to the Magna Carta.95 In its first application of this section, the South Dakota Supreme Court upheld a state law prohibiting appeals from judgments in cases involving $75.00 or less.96 According to the court, the right to an appeal was not a common law right and hence could be restricted by the legislature. 94 For a discussion of this provision, see Gary Jensen, Legislative Larceny: The Legislature Acts Unconstitutionally When It Arbitrarily Abolishes or Limits Common Law Rights to Redress For Injury, 31 S.D. L. Rev. 82 (1985). 95 Paul Linde, Kyllo v. Panzer: The South Dakota Supreme Court Declares Statutes Unconstitutional Which Limited State Employee Liability, 42 S.D. L. Rev. 327, 344 (1997). 96 McClain v. Williams, 73 N.W. 72, 74 (1897).

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In Simons v. Kidd (1949), the South Dakota Supreme Court somewhat narrowly interpreted Section 20 as intended to prevent legislative abolition of only those common law causes of action that existed when the South Dakota State Constitution was adopted in 1889. According to Simons, the open courts provision of the South Dakota Constitution meant that a person with a known remedy could not be prevented from seeking redress in a South Dakota court. This did not mean that the open courts provision created a right of action that did not exist at common law; it only meant that the provision prohibited the state legislature from abolishing a common law remedy. After that decision, however, the court did not always seem to follow this narrow rule of Simons, thus causing some uncertainty as to whether Section 20 only protects those causes of action that existed in 1889.97 Despite numerous challenges, the South Dakota Supreme Court has almost always upheld statutes of limitation against attacks based on the open courts provision. However, in Daugaard v.  Baltic Co-op Building Supply Association (1984), the court did rule that a particular statute of limitations violated Section 20. There were two limitation statutes involved in Daugaard. The first statute provided that no damages action arising out of deficient design, inspection, or construction of an improvement to real property may be brought against a person furnishing that design, inspection, or construction more than six years after substantial completion of the construction. The second statute stated that no cause of action against a manufacturer, lessor, or seller of a product could be brought more than six years after the date of delivery of the completed product to its first purchaser or lessee who was not engaged in the business of selling that product. These statutes, according to the court, unconstitutionally locked the courtroom door before appellants had an opportunity to open it, thereby violating the open courts provision. Acceptable statutes of limitation simply place obstacles or preconditions to the entry into court; they do not abolish or extinguish causes of action altogether, as did the statutes in Daugaard. The court distinguished constitutionally acceptable statutes of limitation as follows: Statutes of limitation proceed on the theory that a plaintiff has a full opportunity to try his rights in the courts within certain time limits. This statute (in this case) bars all recovery without allowing any time for the commencement of an action, if the action accrues six years following the completion of a building. No action by a plaintiff can remedy the situation.

In Daugaard, the limitations statutes barred or prohibited actions which had not yet accrued. They did not merely limit the remedy; they barred the right of action from ever coming into existence. Although the statute in Daugaard 97 See Gail Eisland, Miller v. Gillmore: The Constitutionality of South Dakota’s Medical Malpractice

Statute of Limitations, 38 S.D. L. Rev. 672 (1993).

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purported to be a statute of limitation, its real effect was to bar an action before it could even accrue. As a result, the court ruled that the statute deprived the plaintiffs of a vested right in a cause of action for negligence, thereby violating the open courts provision. Similarly, in Oien v. City of Sioux Falls (1986), the court overturned a statute granting municipalities immunity from negligence suits when those municipalities performed a proprietary function—e.g., constructing or maintaining a public swimming pool. The statute essentially barred a cause of action against a municipality performing a proprietary function; and since such actions had been allowed before the statutes were enacted, the court ruled that the statutes abrogated a common law cause of action in violation of the open courts provision. In Kyllo v.  Panzer (1995), the South Dakota Supreme Court ruled that the state legislature violated the open courts provision when it extended sovereign immunity to state employees performing ministerial functions. Again, because an injured individual had a common law cause of action for negligence against state employees performing ministerial functions, the court held that the legislature could not abrogate such actions, especially since such causes of action predated the adoption of the South Dakota Constitution. According to the court, even though the open courts provision allows the state to regulate a common law remedy, it prevents the state from eliminating that remedy. Consequently, in deciding the case, the Kyllo court had to decide whether plaintiffs had a common law claim and whether the state had eliminated that claim. And in doing so, the court held that the state could not confer immunity on negligent public employees performing ministerial functions. Section 21 Suspension of Laws Prohibited No power of suspending laws shall be exercised, unless by the Legislature or its authority.

This section has not been the subject of any significant commentary or case law. Section 22 Attainder by Legislature Prohibited No person shall be attainted of treason or felony by the Legislature.

A bill of attainder is a legislative act prescribing a particular person guilty of a crime, without trial or conviction according to the rules of procedure. The U.S. Constitution in Article I, Sections 9 and 10, prohibits the bill of attainder or act of attainder.

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This section has not been the subject of any significant commentary or case law. It has relation to the Bill of Attainder Clause in the federal Constitution at Article I, Section 9. Section 23 Excessive Bail or Fines—Cruel Punishments Excessive bail shall not be required, excessive fines imposed, nor cruel punishments inflicted.

The federal counterpart to the cruel punishments provision in Section 23 can be found in the Eighth Amendment to the U.S. Constitution. Generally, state and federal constitutional provisions barring cruel and unusual punishments refer to the character of the punishment, such as barbaric penalties involving physical torture, rather than the duration of the punishment (State v. Knecht, 1997). Although punishment by imprisonment is not cruel per se, it may be constitutionally offensive when the duration of the sentence prescribed is so excessive or disproportionate to the crime committed so as to shock the conscience. The court has also ruled that the death penalty is not cruel punishment per se in violation of the South Dakota Constitution (State v. Moeller, 2000). In support of this ruling, the court argued that the death penalty is recognized in the state constitution, that capital punishment has received legislative approval through legislative enactments of death penalties throughout the state’s history, that the death penalty has been in effect for most of the state’s history, and that the death penalty serves the penological purposes of satisfying society’s need to impose fitting punishments for grievous crimes and of deterring prospective capital offenders. In Moeller, the defendant argued that the South Dakota State Constitution imposed greater restrictions on capital punishment than did the Eighth Amendment to the U.S. Constitution. This claim was based on the slightly different language in the two provisions. The defendant argued that South Dakota’s constitutional prohibition on “cruel punishments” is a greater restriction on government power than its federal counterpart prohibiting “cruel and unusual punishments.” In response, the court in Moeller used a three-part test to determine the constitutionality of sentences under Section 23, similar to the test used by the Supreme Court under the Eighth Amendment. In a subsequent case, the court ruled specifically that the death penalty by lethal injection is not cruel punishment under either the federal or the state constitution (State v. Piper, 2006). Generally, most sentences have been upheld by the South Dakota Supreme Court as not violating Section 23. However, in Bult v. Leapley (1993), the court struck down a defendant’s life sentence without possibility of parole for the kidnapping of a five-year-old girl who he also attempted to rape. The court

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also found that the sentence reflected a determination that the defendant was beyond rehabilitation, even though defendant’s prior history showed that he might in fact be amenable to rehabilitation. Moreover, the defendant was only eighteen at the time the crimes were committed (Bult v. Leapley, 1993). An issue of difference between the Eighth Amendment and Section 23 of Article VI has in the past arisen in the test used by the South Dakota Supreme Court to determine whether a certain sentence constitutes a cruel punishment.98 Because the text of Article VI, Section 23 of the South Dakota Constitution resembles the Eighth Amendment, the question was whether the court was using a state constitutional test that was different from the Eighth Amendment test, or whether the court was just applying a modified Eighth Amendment test. According to one commentator, “South Dakota has taken a different approach for determining whether a proportionality requirement exists within its own constitutional provision prohibiting cruel and unusual punishment.”99 The South Dakota Supreme Court has ruled that studies suggesting that members of one race receive higher penalties do not alone establish cruel and unusual punishment or show a violation of equal protection in an individual case, unless there is evidence that the decision-makers in that particular case acted with a discriminatory purpose (State v. Hatchett, 2003). If the circumstances justify the sentence, and if a defendant cites no instances in which others with similar records received significantly different sentences, the court will not overturn that sentence because of alleged racial disparity in sentencing in general. Absent a sentence that is so excessive in duration that it shocks the conscience of the court, a sentence within statutory limits is generally not reviewable on appeal (State v. Knecht, 1997). Section 24 Right to Bear Arms The right of the citizens to bear arms in defense of themselves and the state shall not be denied.

A somewhat similar provision in the federal Constitution appears in the Second Amendment. However, as the text of the Second Amendment refers to state militia, there is a difference in wording between the two provisions. Another difference lies in the fact that this provision in Section 24 expressly recognizes the right to bear arms for personal self-defense, whereas the Second Amendment does not. Stephanie Carlson, State v. Peck: Proportionality of Sentences—Should It Be a Necessary Factor in Determining Whether a Sentence Shocks the Conscience of the Court?, 40 S.D. L. Rev. 130 (1995). 99 Joel Hunter, State v. Bonner: In Search of an Objective Eighth Amendment Analysis for “Cruel and Unusual Punishment” in South Dakota, 44 S.D. L. Rev. 399, 414 (1999). 98

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Although Section 24 has been rarely cited or enforced by the South Dakota Supreme Court, it did rule, in an opinion demonstrating the court’s willingness to comply with the spirit of Section 24, that simply because a defendant is not permitted to be in possession of a firearm does not mean he is necessarily guilty of violating a statute prohibiting the possession of a firearm, if he should come into control of the firearm for purposes of self-defense (Conaty v. Solem, 1988). This is especially true if the statute does not expressly demonstrate a legislative intent to supersede self-defense statutes by precluding such a person from claiming self-defense. Section 25 Treason Treason against the state shall consist only in levying war against it, or in adhering to its enemies, or in giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or confession in open court.

The treason counterpart in the U.S. Constitution appears at Article III, Section 3. However, there has been no significant commentary or case law on this provision in the South Dakota State Constitution. Section 26 Power Inherent in People—Alteration in Form of Government— Inseparable Part of Union All political power is inherent in the people, and all free government is founded on their authority, and is instituted for their equal protection and benefit, and they have the right in lawful and constituted methods to alter or reform their forms of government in such manner as they may think proper. And the state of South Dakota is an inseparable part of the American Union and the Constitution of the United States is the supreme law of the land.

Related provisions in the South Dakota State Constitution can be found in Article XXIII and Article II, Section 1, which deal with the amendment of the constitution and the process of initiative and referendum. For more discussion, see the analysis of those particular provisions. For related provisions in the federal Constitution, see Article IV, Section 1 (which addresses full faith and credit, public acts, records and judicial proceedings of sister states), the Privileges and Immunities Clause in Article IV, Section 2, as well as the voting provisions in the Twenty-Sixth Amendment to the U.S. Constitution. Section 26 will also have applicability to the law of federal preemption of state law and state sovereign immunity. The South Dakota Supreme Court has ruled that a law passed in great haste does not violate Section 26, insofar as it does not necessarily usurp the political power of the people to alter or reform their government (Independent

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Community Bankers Association of South Dakota, Inc. v. State By and Through Meierhenry, 1984). Section 27 Maintenance of Free Government—Fundamental Principles The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue and by frequent recurrence to fundamental principles.

This provision has never been applied or enforced by the South Dakota Supreme Court. It may have some analogy in the Ninth Amendment to the U.S. Constitution, insofar as it seems to refer to fundamental rights. It also seems to reflect a kind of civic republicanism theory prevailing at the time of passage of the U.S. Constitution and still strongly influential at the time of the drafting and ratification of the South Dakota State Constitution. This civic republicanism looked to civic virtue among the populace as necessary and vital to the maintenance of a healthy democracy.100 Section 28 Right to Vote by Secret Ballot The rights of individuals to vote by secret ballot is fundamental. If any state or federal law requires or permits an election for public office, for any initiative or referendum, or for any designation or authorization of employee representation, the right of any individual to vote by secret ballot shall be guaranteed.

This section was submitted as an amendment to the state constitution to the voters at the November 2, 2010 general election.

For a greater discussion of these principles and how they were reflected in the South Dakota experience, see Lauck, “The Organic Law of a Great Commonwealth.” 100

Article VII Elections and Rights of Suffrage

By amendment approved by the voters on November 5, 1974, this entire article was revised and rewritten. The amendment also repealed former Section 4, which provided that all general elections should be biennial. Related provisions on elections and the right to vote can be found in U.S. Constitution, Articles I and II, and the Twelfth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. Even though titled “Elections and Rights of Suffrage,” this article is practically devoid of requirements pertaining to the election process itself, which are included in other articles.101 Section 1 Right to Vote Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.

The 1974 amendment substituted this section for former Section 5, which established an electors’ privilege from arrest, except for treason, felony or breach of the peace, while at or en route to or from elections. It also prohibited mandatory military duty on election day, except in time of war or public danger. 101 Cape, Constitutional Revision, 62.

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Section 2 Voter Qualification Every United States citizen eighteen years of age or older who has met  all residency and registration requirements shall be entitled to vote in all elections and upon all questions submitted to the voters of the state unless disqualified by law for mental incompetence or the conviction of a felony. The Legislature may by law establish reasonable requirements to insure the integrity of the vote. Each elector who qualified to vote within a precinct shall be entitled to vote in that precinct until he establishes another voting residence. An elector shall never lose his residency for voting solely by reason of his absence from the state.

A related provision in the South Dakota Constitution can be found in Article VI, Section 19, which pertains to free and equal elections. There is a long history of proposed amendments involving this section. Many have been rejected; some of those rejected were eventually approved; and others were approved on first consideration. As was originally adopted in the 1889 constitution, Section 1 of Article VII limited suffrage to male persons at least twenty-one years of age, and required that the elector be qualified under territorial law or have resided one year in the United States, six months in the state, thirty days in the county, and ten days in the precinct. It also extended suffrage to aliens who had declared their intention to become citizens. Section 2 of the original Article VII required submission of the women’s suffrage question to the electors at the next general election following the admission of South Dakota as a state in the union. Section 9 of the original Article VII also established women’s suffrage at elections for school purposes only, and made women eligible to hold any office in the state except as otherwise provided by the constitution. Amendments concerning women’s suffrage issues were defeated in 1890, 1894, 1898, 1910, 1914, and 1916. A  1918 amendment extended suffrage to women, increased the required periods of residence, and required naturalized citizenship of persons of foreign birth. Prior to the 1918 amendment, women meeting the other suffrage qualifications were eligible to vote “at any election held solely for school purposes.” A 1970 amendment reduced the state residence requirement from one year to one hundred and eighty days. In 1972, a constitutional amendment reduced the voting age to 18. This amendment followed previous proposals to reduce the voting age that were rejected in 1952, 1958, and 1970. The 1974 amendment combined the former Sections 1, 6, and 8 into this section. It also superseded Section 10 by eliminating from the former Section 1 all durational residency requirements. In 1974, a federal court ruled that the constitutional residency requirements violated the Equal Protection Clause of the Fourteenth Amendment

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of the U.S. Constitution, as well as the constitutional right to travel (Fisher v. Herseth, 1974). Although a state may impose geographic limits on the franchise, those limits must bear a close relation to the underlying interests of the parties affected by the results of the elective process (Little Thunder v. State of South Dakota, 1975). Despite the right to vote, certain persons can be legally disenfranchised in certain circumstances. For instance, the court has ruled that since an essential element of voting in a Democratic Party primary is to be a registered Democrat, non-Democrats can be disenfranchised by law from voting in that primary (Abbott v.  Hunhoff, 1992). Moreover, South Dakotans who are incarcerated because of a federal conviction are disenfranchised under South Dakota law (Op. Att’y. Gen. 89-09, 1989). Similarly, a South Dakotan incarcerated in a federal institution outside the state remains disenfranchised regardless of the location of the institution. However, since a suspended imposition of a sentence does not amount to a conviction for the purpose of voter qualification, it does not on its own disqualify a municipal official from holding office (Op. Att’y. Gen. 93-14, 1993). Section 3 Elections The Legislature shall by law define residence for voting purposes, insure secrecy in voting and provide for the registration of voters, absentee voting, the administration of elections, the nomination of candidates and the voting rights of those serving in the armed forces.

Related provisions dealing with absentee voting and members of the armed forces can be found in Article VI, Section 19. In its original form, Section 3 provided that all votes should be by ballot, but authorized the legislature to provide for the numbering of ballots so as to prevent and detect fraud. The original Section 6 of Article VII provided that no elector should be deemed to have lost his residency in the state by absence because of service in the military of the United States. Similarly, Section 7 provided that no member of the Army or Navy of the United States should acquire residence in the State of South Dakota simply by being stationed in the state. The 1974 amendments then created a new Section 3, superseding the former Sections 3, 7, and a portion of Section 6. The South Dakota Supreme Court has recognized that the legislature is empowered to make reasonable regulations respecting primary elections, and the requirement that political nominees be members of the party proposing them is reasonable (Smith v.  Ward, 1924). The court has also ruled that a county superintendent is not required to advise persons qualified to vote at school district reorganization elections of their respective districts at which polling place they can or must vote (Schlichenmayer v. Johnson, 1966).

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Furthermore, the failure to make a voting booth available to voters in a school consolidation election did not invalidate the election, where no poll watchers were present and no election official saw how any person voted (Matter of Election Contest as to Reorganization of New Effington Independent School District, 1990).

Article VIII Education and School Lands

Section 1 Uniform System of Free Public Schools The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the Legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education.

For other constitutional provisions relating to this article, see Section 8 of Article XIV and Article XXII. According to the South Dakota Supreme Court, education is one of the most important functions of state and local governments (Olson v. Guindon, 2009). Moreover, South Dakota has been recognized as one of a few states with “strong mandate” constitutional provisions on education.102 The 1885 constitutional convention, which produced the document that was for the most part to become the constitution ratified in 1889, adopted Article VIII essentially as drafted by General Beadle.103 Indeed, most of the sections were ratified without significant debate.104 Sections 2 through 14 William E. Thro & R. Craig Wood, The Constitutional Text Matters:  Reflections on Recent School Finance Cases, 251 Ed. Law Rep. 510, 529 (2010). 103 1 South Dakota Constitutional Debates, 499–519, 592–99. 104 Id. at 499. 102

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pertained to school lands and to the creation of a permanent fund that would endow the public schools in the state. This permanent school fund could be increased, but never decreased. All losses to the fund had to be rectified by the state, and all income from the fund had to be used exclusively for maintaining the public school system. As the South Dakota Supreme Court has held, the state legislature’s control over education is unlimited, except as restrained by either the state or federal constitution, and therefore the legislature should be largely free from judicial interference (Anderson v. South Dakota High School Activities Association, 1976). The educational policy of the state is a matter for the legislature, and not for either the Board of Regents or the courts (State ex rel. Prchal v. Dailey, 1931). For instance, the formation of school districts is entirely within the power of the legislature, and the enlargement or dissolution of those districts is a legislative function (Fairview Independent School District v. County Board of Education of Hand County, 1972). The South Dakota Supreme Court has described the ultimate authority of the legislature to control the education policy of the state: We think it is elementary that the people through their legislature and the constitution have a right to control and prescribe the limits to which they will go in supplying education to the children and youth of the state at public expense. Neither educators nor administrative boards can expend public funds for education, unless the education for which it is expended is authorized by law. If that is true, we must look to the constitution and the statutes of this state for the authority of the regents to maintain the normal schools involved in this action as teachers colleges. (State ex rel. Prchal v. Dailey, 1931) Section 2 Perpetual Trust Fund for Maintenance of Public Schools—Principal Inviolate All proceeds of the sale of public lands that have heretofore been or may hereafter be given by the United States for the use of public schools in the state; all such per centum as may be granted by the United States on the sales of public lands; the proceeds of all property that shall fall to the state by escheat; the proceeds of all gifts or donations to the state for public schools or not otherwise appropriated by the terms of the gift; and all property otherwise acquired for public schools, shall be and remain a perpetual fund for the maintenance of public schools in the state. It shall be deemed a trust fund held by the state. The principal shall never be diverted by legislative enactment for any other purpose, and may be increased; but, if any loss occurs through any unconstitutional act, the state shall make the loss good through a special appropriation.

With respect to the funding of public education, an initial position at the 1885 constitutional convention held that school lands should be sold quickly

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so as to help new settlers establish new communities.105 Another viewpoint, however, envisioned that the school lands would increase in price as the state was settled, and that those lands, so as to produce a large enough education endowment for the state, should not be sold for less than a constitutionally set minimum price.106 This latter view prevailed, and a minimum price of $10 per acre was set. Two proposed amendments to this section were rejected in 1976 and 1998. However, an amendment permitting the investment of permanent school funds in certain stocks, bonds, mutual funds, and other financial instruments, and to use a certain portion of the interest and income to increase the principal of the fund, was approved by the voters on November 7, 2000. This section specifies and regulates the assets in the permanent public school fund. In an early case, involving whether the legislature, through the issuance of state bonds, could remedy the losses to the interest and income funds and to the permanent school funds, as a result of defalcation of the state treasurer, the South Dakota Supreme Court addressed the relationship between Sections 2, 3, 7, and 13 of Article VIII. Under Section 3, the state has the obligation to remedy all losses to the interest and income from the permanent school funds, insofar as that section requires the state each year to distribute such interest and income to the various school districts. This mandatory duty to distribute is not relieved simply because a state officer has misappropriated such funds (In re State Bonds, 1895). Therefore, any loss of such monies due to the fault of the state must be made up by legislative appropriation. Moreover, a liability of the state to make up such losses is not counted as part of the indebtedness to which the state is limited. As the court explained: Our judgment is that the liability of the state to distribute the interest of the permanent school fund, being thus clearly imposed, is strictly binding, although a part or all of said interest monies may have been misappropriated or lost by its immediate custodian, and that, as already intimated, such liability is not a debt, within the meaning of that provision of the constitution limiting the debt contracting power of the state. The monies to be distributed and paid over are not general funds belonging to the state, and which the legislature might have depleted by appropriations for other purposes. These funds do not belong to the state, but to the several school corporations. The state is simply a constitutionally-appointed trustee, with the imposed duty of distributing to the real owners of the fund whatever of such monies have been received by it up to the 15th day of June of each year. At no time does the state owe these interest monies to the school corporations. The relation of the state to the school corporation is not that of debtor, but rather that of bailee of a special deposit. It may Memoirs of General William Henry Harrison Beadle, 3 South Dakota Historical Collections 213 (1906). 106 Id. 105

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be suggested that the same is true as to the permanent fund or principal, but the constitution itself answers the suggestion, by expressly providing that, in cases of loss to the permanent fund, the state may and must substitute its own promise to pay to the extent of such a loss. So understood, Section 13, which requires the loss to the permanent school or other educational funds to be audited and remain a permanent funded debt against the state, is no application to losses to the interest and income therefrom, which the state is required to distribute annually. (In re State Bonds, 1895)

When there is a loss to the permanent school fund due to negligence, fraud, or mismanagement of the state, the legislature has a duty not only to make up the loss of that principal amount to the permanent school fund, but also a separate obligation to make up the interest payments that would have been made from that lost principal. This latter obligation cannot appear just in the form of public indebtedness, but must be specifically distributed to the school districts, since the state’s school districts are entitled to an annual distribution of the interest on the full permanent school funds. As the court explained this two-fold obligation imposed by Sections 2 and 3 of Article VIII: In the one case the losses to a permanent fund, which is always to remain as an interest-bearing principal, and, in cases of loss to it, the state is required to put in the place of such loss its own promise to pay, upon which it shall pay interest. In the other case the state is required, not to promise or undertake anything executory, but is required actually to pay over the interest money precisely as though no loss had occurred. (In re State Bonds, 1895)

While the state can make up for a loss in the principal of the permanent school fund by a promise to pay, it must make up for a loss in the interest payments that would have been produced by that lost principal by an affirmative appropriation to the school districts. Regardless of the loss in principal, the state is constitutionally required to apportion and distribute the interest on the principal for each year. The South Dakota Supreme Court has very strictly interpreted the mandates of Section 2, holding that the permanent fund cannot be diminished, no matter how small a degree or how short a period of diminishment. For instance, in addressing the issue of whether certain bonds in the permanent school fund could be sold and essentially converted to bonds bearing a higher interest rate, the court focused on the precise question of whether this transaction would in any way deplete the permanent school funds. Finding that a depletion would in fact occur, even though the proponents of the transaction outlined in good faith the specific ways in which the depletion would be restored, the court struck down the proposal as one that would result in a loss of permanent school funds. The court so ruled even though recognizing that the permanent school funds should be invested so as to earn the highest return compatible with safe investment,

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as commanded by Section 11 of Article VIII. According to the court, the permanent school funds are “in no sense a speculative trust or a trust that can be used for speculative purposes, however advantageous a change in investments may appear” (Schelle v. Foss, 1957). Even though the court recognized that the transaction anticipated greater returns in the future, the court also recognized that there was no assurance of those greater returns. As the court explained the intent behind the school funds provisions of the constitution: The framers of our constitution intended to, and did, establish a special trust for the administration and preservation of our permanent school and educational funds. Article VIII of the constitution serves as the trust instrument containing the declarations of trust. Its provisions are written in strong, clear, self-expressive language. Its beneficiaries are all of the public schools in the state together with its endowed charitable and educational institutions. The trust must be administered for their sole benefit and best interests. An involvement of the trust funds for any other purpose, consideration, or motivation would be in violation of the basic intendment of the trust. This fundamental principal is violated by the proposal to sell United States bonds, at a loss, for the sole purpose of providing money to reinvest in local bonds bearing three percent interest. Over $9 million in United States bonds would thus have to sold at an estimated discount of nine percent. The principal funds would thereby be depleted to the extent of the discount. Furthermore, the school funds would also suffer a loss of interest and income. The full amount of principal presently invested in United States bonds bearing interest at two and three-quarters percent provides a higher net return than the depleted principal would return invested in local bonds bearing three percent interest. (Schelle v. Foss, 1957)

The court refused to read into the 1952 amendment to Section 11, directing the investment of the permanent educational funds so as to provide the highest income compatible with safe investment, the power of the state to cause a depletion of the permanent school funds. The 1952 amendment only applied to Section 11; it did not apply to any other section within Article VIII, and hence did not change or alter the duties of the state in connection with maintaining the permanent school funds. As the court noted: In establishing the permanent school fund, the framers of our constitution were primarily concerned with the safe, continuous investment of the corpus of such funds. The highest return on that investment was a subordinate consideration. We believe the perpetuation of the fund to be the dominant concern of the people today. We, furthermore, cannot escape the conclusion that the voluntary sale of invested securities belonging to the permanent school funds at a discount would be an unconstitutional assumption of power. Such sales would constitute an unlawful diminishment of the principal of the funds contrary to the provisions of our constitution. (Schelle v. Foss, 1957)

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Section 3 Fund Income Apportioned Among Schools—Apportionment of Fines The interest and income of this fund together with all other sums which may be added thereto by law, shall be faithfully used and applied each year for the benefit of the public schools of the state, and shall be for this purpose apportioned among and between all the several public school corporations of the state in proportion to the number of children in each, of school age, as may be fixed by law; and no part of the fund, either principal or interest, shall ever be diverted, by legislative enactment, even temporarily, from this purpose or used for any other purpose whatever than the maintenance of public schools for the equal benefit of all the people of the state. However, before the interest and income is apportioned to the public schools, the principal shall be increased each year by an amount equal to the rate of inflation from the interest and income earned from this fund. The principal may be prudently invested as provided by law. The proceeds of all fines collected from violations of state laws shall be paid to the county treasurer of the county in which the fine was imposed, and distributed by the county treasurer among and between all of the several public schools incorporated in such county in proportion to the number of children in each, of school age, as may be fixed by law.

An amendment to this section approved in 1930 added the second paragraph and deleted a provision for distribution of fines imposed under the first paragraph. Other proposed amendments were rejected in 1942, 1970, 1976, and 1998. A 1982 amendment deleted the language “remitted to the state treasurer and apportioned by the commissioner of school and public lands back to the county from which such monies were collected to be” which appeared after the words “by him” in the second paragraph. A 2000 amendment permitted the investment of permanent school funds in certain stocks, bonds, mutual funds, and other financial instruments, and to use a certain portion of the interest and income to increase the principal in the fund. For a lengthy discussion of this section, consult the commentary of Section 2 above. Section 3 provides for the yearly distribution of the interest and income from the permanent school fund. As discussed under Section 2 above, the state is required to pay out each year to the state’s schools, not just issue a promise to pay, an amount equal to the interest and income earned by the permanent school fund. This mandatory duty exists even if there had been a loss to the fund due to misappropriation. Under this section, the commissioner of school and public lands is charged with distributing the income to the various public schools and to make timely accounts of the fund, thereby permitting a full and timely investment of such funds (State v.  Ruth, 1896). Except as provided under Section 11 of Article VIII and appropriate statutes, all gains resulting from the purchase and sale of permanent school trust fund investment securities are to remain part of the trust fund, and are not to be distributed as interest or income (Opinion Attorney General No. 89-14, 1989).

A r t ic l e V I I I   n   167 Section 4 Sale of School Lands—Appraisal After one year from the assembling of the first Legislature, the lands granted to the state by the United States for the use of public schools may be sold upon the following conditions and no other:  not more than one-third of all such lands shall be sold within the first five years, and no more than two-thirds within the first fifteen years after the title thereto is vested in the state, and the Legislature shall, subject to the provisions of this article, provide for the sale of the same. The commissioner of school and public lands, the state auditor and the county superintendent of schools of the counties severally, shall constitute boards of appraisal and shall appraise all school lands within the several counties which they may from time to time select and designate for sale, at their actual value under the terms of sale. They shall take care to first select and designate for sale the most valuable lands; and they shall ascertain all such lands as may be of special and peculiar value, other than agricultural, and cause the proper subdivision of the same in order that the largest price may be obtained therefor.

A 1975 proposed amendment, defeated on November 2, 1976 by a vote of 188,012 against the amendment to 66,247 in favor, would have, among other things, required the sale or lease by public auction of state property held in public school or other institutional trust funds; would have imposed upon such sale or lease the requirements of a fair market value, a five-year maximum lease with option of renewal without public readvertising; would have prohibited adverse possession or prescription of trust lands; would have allowed the exchange of trust lands for other lands; would have reserved gas, coal, oil, and mineral rights in the state, with their lease or sale as provided by the Legislature; would have apportioned up to 50 percent of the annual proceeds on reserved rights leases to the public schools and various institutions, pursuant to a set ratio. Section 5 Terms of Sale of School Lands No land shall be sold for less than the appraised value, and in no case for less than ten dollars per acre. The purchaser shall pay at least one-tenth of the purchase price in cash. The Legislature shall provide by general law for payment of the balance which shall be made in partial payments and must be fully paid up within thirty years. Interest shall be established by the Legislature. All lands may be sold for cash, provided further, that the purchaser or purchasers shall have the right or option of paying the balance in whole or in part on any interest paying date, under such rules as the Legislature may provide. No land shall be sold until appraised and advertised and offered for sale at public auction. No land can be sold except at public sale. Such lands as shall not have been specially subdivided shall be offered in tracts of not more than eighty acres and these subdivided into the smallest division of the lands designated for sale and not sold within two years after

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their appraisal shall be reappraised by the board of appraisers as hereinafter provided before they are sold.

A 1914 amendment to this section reduced the minimum interest rate on deferred payments from 6 percent to 5 percent. It also required advertisement of sale in a second newspaper in the vicinity and reduced the appraisal period from four years to two years. A 1918 amendment reduced the required down payment from one-fourth to one-tenth and substituted the thirty-year provision for a requirement that deferred payments be in equal installments at the end of five, ten, and fifteen years. The 1918 amendment also changed the minimum 5 percent interest rate to a flat 5 percent and gave the legislature power to prescribe rules for anticipatory payment in full. Amendments proposed in 1968, 1970, and 1975 were all rejected by the voters. A 1982 amendment substituted the language “interest shall be established by the legislature” for “interest shall be five percent annually.” The amendment also deleted in the first paragraph the following language that occurred after “public auction”: After sixty days’ advertisement of the same in at least three newspapers of general circulation, two of which shall be located in the vicinity of the lands to be sold, and one at the seat government. Section 6 Conduct of Sales of School Lands—Conveyance of Right or Title All sales shall be conducted through the office of the commissioner of school and public lands as may be prescribed by law, and returns of all appraisals and sales shall be made to said office. No sale shall operate to convey any right or title to any lands for sixty days after the date thereof, nor until the same shall have received the approval of the Governor in such form as may be provided by law. No grant or patent for any such lands shall issue until final payment be made.

A repeal of this section was rejected by the voters in 1976, as was a proposed amendment in 1984. With respect to school land sales, the South Dakota Supreme Court has not required that a written report of such sales be made from the Commissioner of School and Public Lands to the Governor. Nor is the Governor required to give a written report of approval or disapproval of the sale, even though such written reports might be a sound business and administrative practice (Landers v. Linn, 1961). Section 7 Perpetual Trust Fund from Proceeds of Grants and Gifts All lands, money, or other property donated, granted, or received from the United States or any other source for a university, agricultural college, normal

A r t ic l e V I I I   n   16 9 schools, or other educational or charitable institution or purpose, and the proceeds of all such lands and other property so received from any source, shall be and remain perpetual funds, the interest and income of which, together with the rents of all such lands as may remain unsold, shall be inviolably appropriated and applied to the specific objects of the original grants or gifts. The principal of every such fund may be increased, but shall never be diverted by legislative enactment for any other purpose, and the interest and income only shall be used. Every such fund shall be deemed a trust fund held by the state, and the state shall make good all losses that may occur through any unconstitutional act or where required under the Enabling Act.

Section 7 creates a second permanent educational fund for the maintenance of state educational institutions. It designates from what sources the perpetual funds for the university, agricultural college and other educational and charitable institutions shall be derived. Proposed amendments to this section were rejected in 1942, 1976, and 1998. A 2000 amendment approved on November 7, 2000 permitted the investment of permanent school funds and certain stocks, bonds, mutual funds and certain stocks, bonds, mutual funds and other financial instruments, and to use a certain portion of the interest and income to increase the principal of the fund. Under the Enabling Act, passed on February 22, 1889 by the United States Congress allowing South Dakota to be admitted into the Union as a state, South Dakota was given power over various acreages of federal land designated for the benefit of educational institutions, on the condition that the proceeds from any sales of the lands constitute a permanent fund for the support of the public schools for which the land had been granted. In Section 7 of Article VIII, the South Dakota Constitution incorporated this permanent trust fund requirement. Indeed, the Enabling Act had established the conditions under which the lands granted by the United States to the State of South Dakota for educational institutions must be held and managed (Kanaly v. State of South Dakota, 1985). Section 7 reiterates the trust nature of the school land holdings, providing that all the lands received from the United States as school lands should be placed in a perpetual trust fund. The principal of this fund may be increased but shall never be decreased. According to the South Dakota Supreme Court, the Enabling Act and Section 7 of Article VIII create a permanent and perpetual trust of all property donated to the state for educational institutions by both the United States and private individuals. Under this permanent trust relationship or “irrevocable compact,” the state is the trustee (Kanaly v. State of South Dakota, 1985). The beneficiaries of this compact or trust created by the Enabling Act and the South Dakota Constitution are the various educational institutions of the state. The beneficiaries do not include the general public, other government institutions, nor even the general welfare of the state (Kanaly v. State of South Dakota, 1985). Therefore, when a school is closed, land owned by that school cannot be transferred without consideration to another government agency.

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According to the court in Kanaly, the legislative transfer of trust property to another state governmental agency, without compensation reflecting the full market value of the transferred property, is both unconstitutional and in violation of the Enabling Act. Although the state is empowered to convey or transfer trust property, it cannot do so in a manner that diminishes or impairs the trust fund’s principal. Any disposition of land, buildings, or other property must be made for the full market value, with the proceeds delivered to the trust. Section 8 Appraisal and Sale of Donated Lands—Separate Accounts All lands mentioned in the preceding section shall be appraised and sold in the same manner and by the same officers and boards under the same limitations, and subject to all the conditions as to price, sale and approval, provided above for the appraisal and sale of lands for the benefit of public schools, but a distinct and separate account shall be kept by the proper officers of each of such funds.

A 1975 proposed repeal of this section, which also proposed repealing various other sections of this article, was rejected on November 2, 1976. Section 9 Lease of School Lands The lands mentioned in this article shall be leased for pasturage, meadow, farming, the growing of crops of grain and general agricultural purposes, and at public auction after notice as hereinbefore provided in case of sale and shall be offered in tracts not greater than one section. All rents shall be payable annually in advance, and no term of lease shall exceed five years, nor shall any lease be valid until it receives the approval of the Governor. Provided, that any lessee of school and public lands shall, at the expiration of a five-year lease, be entitled, at his option, to a new lease for the land included in his original lease, for a period of time not exceeding five years, without public advertising, at the current rental prevailing in the county in which such land is situated, at the time of the issuance of the new lease. The commissioner of school and public lands shall notify by registered mail each lessee or assignee on or before the first day of November first preceding the expiration of his lease that such lease will expire. Such option shall be exercised by the lessee by notifying the commissioner of school and public lands by registered mail, on or before the first day of December first preceding the expiration of his lease describing the lands for which he desires a new lease, in the same manner as the same is described in his original lease. The Legislature may provide by appropriate legislation for the payment of local property taxes by the lessees of school and public lands.

Proposed amendments to this section were rejected in 1916, 1976, and 1984. A 1910 amendment added farming and agriculture to permissible purposes of leases. A 1948 amendment added the second and third paragraphs. And a 1994 amendment added the last paragraph of this section.

A r t ic l e V I I I   n   171 Section 10 Trespassers’ Claims to Public Lands Not Recognized—Improvements Not Compensated No claim to any public lands by any trespasser thereon by reason of occupancy, cultivation or improvement thereof, shall ever be recognized; nor shall compensation ever be made on account of any improvements made by such trespasser.

A proposed repeal of this section was rejected in 1976. Section 11 Investment of Permanent Educational Funds Except as otherwise required by the Enabling Act, the moneys of the permanent school and other educational and charitable funds shall be invested by the state investment council in stocks, bonds, mutual funds, and other financial instruments as provided by law.

Proposed amendments to this section were rejected in 1942, 1944, 1950, 1976, 1978, 1984, and 1994. As originally adopted, this section directed investment in farm mortgages, school bonds, and state and federal bonds. It also gave the legislature power to determine the amounts of investment in each class of securities, and it provided for county management of funds invested in farm mortgages and school bonds. A 1902 amendment reduced the minimum rate of interest from 6 percent to 5  percent. A  1904 amendment provided for investment in county, township, and municipal bonds; it also permitted county management of funds so invested, and changed the maximum farm mortgage loan from half the assessed value to one-third of the actual value. This amendment also increased the maximum county loan to one person from $500 to $5,000. A 1952 amendment, identical to an amendment rejected in 1950, placed the management of all investments under the authority of the Commissioner of School and Public Lands, deleted authority for investment in township bonds and farm mortgages, and gave the legislature power to fix interest rates. A 1996 amendment deleted all restrictions on the investment of funds and placed the investment authority with the state investment council. The 2000 amendment permitted the investment of permanent school funds in certain stocks, bonds, mutual funds, and other financial instruments and permitted a certain portion of the interest and income to be used to increase the principal in the fund. A related constitutional provision can be found in Article XXVIII, Section 1, which relates to county investment of school funds. According to the South Dakota Supreme Court, all gains resulting from the purchase and sale of permanent school trust fund investment securities are to remain in the trust fund and not be distributed as interest or income, except as otherwise provided by the constitution (Op. Att’y Gen. 89-14, 1989). Interpreting the 1996 amendment, the attorney general opined that the amendment changed only the entity authorized to invest the trust funds; it

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did not affect any of the other constitutional provisions that created the trust, including protection of the fund’s principal and dispersal of all interest and income for educational purposes (Op. Att’y Gen. 97-06, 1997). Section 12 Disapproval by Governor of Sale, Lease or Investment The Governor may disapprove any sale, lease or investment other than such as are intrusted to the counties.

A proposed repeal of this section was rejected in 1976. Although this section empowers the governor to disapprove any sale, that disapproval does not have to be made in writing (Landers v. Linn, 1961). As indicated in this section, the governor’s power to disapprove any sale is a discretionary power. Section 13 Audit of Losses to Permanent Educational Funds—Permanent Debt—Interest The permanent school or other educational and charitable funds of this state shall be audited by the proper authorities of the state. If any loss occurs through any unconstitutional act, the state shall make the loss good through a special appropriation. The amount of indebtedness so created shall not be counted as a part of the indebtedness mentioned in article XIII, 2.

A repeal of this section was rejected in 1976, as was an amendment proposed in 1998. The 2000 amendment, approved on November 7, 2000, permitted the investment of permanent school funds in certain stocks, bonds, mutual funds, and other financial instruments and to use a certain portion of the interest and income to increase the principal of the fund. The South Dakota Supreme Court’s decision in In re State Bonds (1895), described under Section 2 above, also relates to this section. According to the court, any losses to the perpetual school fund caused by defalcation or mismanagement by the state shall be charged as a debt against the state, which in turn will not be counted as a part of the indebtedness to which the state is limited by Article XIII of the constitution. Not only must the state make good all losses to the permanent fund, but the state must also make good all losses to the interest and income that would have been earned by the lost portion of the permanent fund (In re State Bonds, 1895). Section 14 Protection and Defense of School Lands The Legislature shall provide by law for the protection of the school lands from trespass or unlawful appropriation, and for their defense against all unauthorized claims or efforts to divert them from the school fund.

A repeal of this section was rejected in 1976.

A r t ic l e V I I I   n   17 3 Section 15 Taxation to Support School System—Classification of Property The Legislature shall make such provision by general taxation and by authorizing the school corporations to levy such additional taxes as with the income from the permanent school fund shall secure a thorough and efficient system of common schools throughout the state. The Legislature is empowered to classify properties within school districts into separate classes for purposes of school taxation. Taxes shall be uniform on all property in the same class.

Amendments to this section were rejected in 1964 and 1998. A  1930 amendment added the second and third sentences of this section. The 1966 amendment, which was identical to the rejected amendment in 1964, substituted “agricultural property” for “agricultural lands.” A 2000 amendment permitted the legislature to establish multiple classes of property for school taxation purposes. The power of the state to classify property for purposes of taxation is a wide and flexible power (Thares v. Brown Co. Board of Equalization, 2000). The constitution empowers the legislature to create as many classes of non-agricultural property as it desires, so long as the taxes are uniform on all property within the same class. Consequently, the valuation of property in one county at twice its assessed value in another county did not violate the constitutional requirement for equality in taxation, since the tax only has to be equal and uniform within each county (West Two Rivers Ranch v. Pennington Co., 2002). However, the valuation of property cannot exceed its actual value, and the taxation rate has to be uniform on all property in the same class and in the same jurisdiction (Butte Co. v. Vallery, 1999). In Matter of Butte Co. (1986), the court struck down a law that treated irrigated farmland as a separate class from non-irrigated farmland. The court held that the legislature could classify agricultural lands as only one class of property. Thus, if agricultural land was to be classified separately from non-agricultural land, it could only be classified as one class of property. Any attempt to create more than one class of agricultural land violates Section 15. The constitution gives the legislature the power to make the following classifications of property: one for agricultural property and unlimited classes for non-agricultural property (Thares v. Brown Co. Board of Equalization, 2000). Under the state constitution, agricultural land constitutes its own separate and distinct class for tax purposes. In Gould v. Pennington Co. Board of Equalization (1997), the South Dakota Supreme Court held that a statute violated Section 15 of Article VIII because it created two different classes of agricultural land for taxation purposes. By creating one class of agricultural property that sells for less than 150  percent of its agricultural income value, and another class that sells for more than 150 percent of its agricultural income value, the statute was unconstitutional, insofar as it created two different classes of agricultural property.

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However, in Thares v. Brown Co. Board of Equalization, the supreme court upheld a statute that remedied the constitutional defect in the statute at issue in Gould v. Pennington Co. Board of Equalization. In Thares, the statute required all agricultural property that sold for more than 150 percent of its agricultural income value to be classified as non-agricultural land. The court found that this statute did not create a separate class of agricultural land, but rather created a new and separate non-agricultural class of land. This new class of non-agricultural land was characterized by the fact that the sale price as related to income is determinative of whether land will be classified as non-agricultural. Thus, the statute created a separate distinct class of non-agricultural property, rather than creating a new sub-class of agricultural property. Because there are no constitutional restrictions on the number of non-agricultural classes of property, the court in Thares found it reasonable to conclude that when agricultural land sells for a substantially higher price than the agricultural income it is capable of generating, then that land has achieved a non-agricultural value in excess of its prior agricultural value— hence, the property’s classification should be changed to non-agricultural property. According to the court, the sales price can be used as a valid indicator to determine when property has ceased being agricultural and has become non-agricultural. Prior to 1929, Section 15 was silent regarding the legislature’s authority to classify agricultural property as a separate class for taxation purposes. The relevant constitutional provision was Article XI, Section 2, which provided simply that “taxes shall be uniform on all property of the same class.” Consequently, in Simmons v.  Ericson (1929), the South Dakota Supreme Court struck down a tax levy on agricultural property that was less than half the tax levy on non-agricultural property, arguing that this distinction violated Article XI, Section 2.  As a result of this decision, an amendment to Article VIII, Section 15 was approved by the voters in 1930, allowing the legislature to classify agricultural lands as a separate class for purposes of taxation. Section 16 Public Support of Sectarian Instruction Prohibited No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state, or any county or municipality within the state, nor shall the state or any county or municipality within the state accept any grant, conveyance, gift or bequest of lands, money or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or institution aided or supported by the state.

This section should be read in light of federal case law under the Establishment Clause of the First Amendment.

A r t ic l e V I I I   n   175

Because of the absolute prohibition on any money or aid going to any sectarian school, it is likely that this provision more strictly prohibits government support of sectarian schools than does the federal constitution. After all, federal Establishment Clause jurisprudence allows some types of financial aid to religious schools under a neutrality approach.107 Under this approach, public aid can flow to religious organizations as long as that aid is distributed on a neutral basis—e.g., through the use of vouchers used by private citizens—and that all organizations, religious and secular, are treated equally. This approach differs somewhat from the U.S. Supreme Court’s approach in the 1970s and 1980s when it sometimes interpreted the Establishment Clause to discourage public aid from going to religious organizations. Even though under the Lemon test the federal Establishment Clause does not prohibit government funding of textbooks for religious school students, the South Dakota Supreme Court in McDonald v.  School Board of Yankton Independent School Dist. No. 1 (1976) struck down the South Dakota textbook loan statute. As the court has recognized, the South Dakota state constitution is not a mere reiteration of the Establishment Clause of the United States Constitution but is “more restrictive as prohibiting aid in every form” (Certificate of a Question of Law from the United States District Court, 1985). The intent of the framers of Section 16 was to “prohibit in every form, whether as a gift or otherwise, the appropriation of the public funds for the benefit of or to aid any sectarian school or institution” (Id.). The court has indicated that the neutrality approach taken by the United States Supreme Court in connection with the Establishment Clause does not apply to the South Dakota constitution. In other words, the fact that textbooks are provided free to all students, regardless of what kind of school they attend, does not render the scheme constitutional under Section 16. According to the court, “the inclusion of additional classes of recipients does not eliminate the constitutional flaw in the challenged statutes.” However, the court also held in Petition of N.C.B. Careers, Inc. (1980) that the granting of a tax exemption to a religious educational institution was not an unconstitutional assistance to religion under Section 16, since the exemption did not involve a direct appropriation of money to a religious educational institution. The crucial issue is that Section 16 is more restrictive than the Establishment Clause of the United States Constitution. Despite this restrictiveness, however, the court has held that a statute making every accredited high school eligible for membership in the State High School Interscholastic Activities Association did not amount to a gift or appropriation of aid to religious schools, but merely admitted all accredited high schools under uniform rules and regulations (South Dakota High School Interscholastic Activities Association

107 Garry, Religious Freedom.

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v. St. Mary’s Inter-Parochial High School of Salem, 1966). The constitutional ban on aid to sectarian schools did not require that parochial students, who were otherwise eligible to participate in scholastic activities, be barred from participating in events with public school students just because there would be an incidental use of public school facilities. Thus, the court did not so absolutely and strictly construe the provisions in Article XVI to prohibit any and every public benefit that might be accorded to students of sectarian schools. On the other hand, according to an attorney general’s opinion, the simultaneous public and private use of a school bus by a public school and a church-run preschool is unconstitutional (Op. Att’y Gen. 92-04, 1992). Thus, the South Dakota Constitution imposes restrictions above and beyond the federal Establishment Clause, under which the United States Supreme Court has allowed such publicly-funded busing benefits to be given to students of a religious school. Section 17 Interest in Sale of School Equipment Prohibited No teacher, state, county, township or district school officer shall be interested in the sale, proceeds or profits of any book, apparatus or furniture used or to be used in any school in this state, under such penalties as shall be provided by law.

In interpreting this section, an attorney general opinion stated that a teacher at a local school district, who also owns and operates a sporting goods store, may not sell to the school district such supplies, materials, and equipment as balls, sports uniforms, scorebooks, wrestling mats, trophies, awards, weightlifting devices, and first aid materials (Op. Att’y. Gen. 87-02, 1987). Section 18 Apportionment of Mineral Leasing Moneys—Amounts Covered Into Permanent Funds Notwithstanding the provisions of §§ 2, 3 and 7 of article VIII of this Constitution, moneys received from the leasing of all common school, indemnity, and endowment lands for oil and gas and other mineral leasing of said lands shall be apportioned among the public schools and the various state institutions in such manner that the public schools and each of such institutions shall receive an amount which bears the same ratio to the total amount apportioned as the number of acres (including any that may have been disposed of) granted for such public schools or for such institutions bears to the total number of acres (including any that may have been disposed of) granted in trust to the state by the Enabling Act approved February 22, 1889, as amended, and allocations authorized pursuant to the provisions of § 17 of such Enabling Act; and further that not less than fifty percent of each such amount so allocated shall be covered into the permanent fund of the public schools and each of such institutions.

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A 1954 amendment added this section to the constitution. A further amendment proposed in 1975 was rejected on November 2, 1976. Section 19 Mineral Rights Reserved to State—Leases Permitted All gas, coal, oil and mineral rights, and any other rights, as specified by law, to or in public lands, are reserved for the state. Leases may be executed by the state for the exploration, extraction and sale of such materials in the manner and with such conditions as are provided by law.

This section was added to the constitution on November 7, 1978. The Enabling Act of 1889 specifically gives the state the right to exchange state land, subject only to the requirements that such an exchange be authorized by statute and that the exchanged lands be of equal value and, as near as possible, of equal area. Section 2 of Article VIII of the South Dakota Constitution requires that all property acquired for public schools remain in a perpetual trust fund that may never be diminished (Op. Att’y. Gen. 86-42, 1986). In addition, Section 19 reserves all mineral rights to the state, and any mineral exchange cannot diminish the principal of the trust fund. Thus, any exchange of mineral estates must be for equal value, such that the total value of the sum of all mineral estates in the school fund is not diminished. A mineral estate can be exchanged only if the total value of the school trust is not diminished. Section 20 Loan of Nonsectarian Textbooks to All School Children Notwithstanding the provisions of section 3, Article VI and section 16, Article VIII, the Legislature may authorize the loaning of nonsectarian textbooks to all children of school age.

This section was added to the constitution on November 4, 1986. A 2004 amendment was rejected by the voters on November 2, 2004. Pursuant to an attorney general opinion issued after the 1986 amendment, school boards are not required to provide the same textbooks under the textbook loan statute to non-public school students as they provide to public school students (Op. Att’y. Gen. 87-21, 1987). However, boards do have the discretion to provide to non-public school students the same nonsectarian textbooks that are provided to public school students. But a board cannot loan only outdated or discarded books to the non-public school students, unless similar books are used by the public school students. Nor can school boards use their discretionary power in a manner that completely prohibits primary grade students from receiving textbooks in the subject areas required to be taught in the public schools of South Dakota.

Article IX Local Government

An amendment, approved by the voters on November 7, 1972, combined Articles IX and X into a revised Article IX. This amendment simplified the provisions with respect to local government and removed some of the restrictions and requirements on local government. The amendment also abolished the constitutional status of county officers, simplified the home rule provisions and extended them to counties, and removed certain constitutional restrictions on municipal taxing and borrowing powers. A later amendment proposing new authorizations for local initiatives to provide for the cooperation and organization of local government was rejected by the voters on November 3, 1998. Section 1 Organization of Local Government The Legislature shall have plenary powers to organize and classify units of local government, except that any proposed change in county boundaries shall be submitted to the voters of each affected county at an election and be approved by a majority of those voting thereon in each county. No township heretofore organized may be abolished unless the question is submitted to the voters of the township and approved by a majority of those voting thereon in each township.

This section, as originally adopted, was the former Section 5 of Article IX. This section prohibited the holding of any county office except clerk of courts for more than four successive years by any one person. Rejected amendments 179

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in 1894, 1914, and 1932 respectively, would have removed the superintendent of schools from the limitation of four successive years. A 1902 amendment to former Section 3 of Article IX inserted a provision reducing to three-fifths the vote required for removal of the county seat to a railroad station from a location not having a railroad station. A 1906 amendment added a provision authorizing the legislature to prescribe additional qualifications for the superintendent of schools. A  1936 amendment provided for non-political election of the superintendent of schools and removed that office from the limitation of four successive years. That same limitation was removed from the Sheriff’s Office in a 1954 amendment. Likewise, a 1960 amendment removed county officers from the limitation of four successive years. These amendments were all made to the former Section 5 of Article IX, as was the 1964 amendment that added provisions combining county offices and the 1966 amendment that eliminated the county surveyor as a constitutional office. The 1972 amendment added this section 1 to the constitution. It generally replaced former Article IX and Sections 1 through 3 of former Article X.  It removed most of the constitutional restrictions on and requirements for the establishment and changes in counties, townships, and municipal corporations. It also added the second sentence in this section. Finally, the 1972 amendment combined other provisions of former Articles IX and X into a new Article IX. As the South Dakota Supreme Court has stated, local government entities such as counties, townships, and cities have only the authority specifically granted by the state legislature (Pennington Co. v. State ex rel. Unified Judicial System, 2002). Furthermore, the court has also ruled that a statute providing for the attachment of an unorganized county to an organized county for administration of governmental and physical affairs did not effect a consolidation of the two counties; consequently, the statute did not violate the constitutional requirement that two counties could not be consolidated without the consent of the residents (Tripp Co. v. State, 1978). On the other hand, an unorganized county is a separate entity, and thus its boundaries may not be changed without a popular vote (Nebraska Electrical Generation and Transmission Coop Inc. v. Markus, 1976). Section 2 Home Rule Any county or city or combinations thereof may provide for the adoption or amendment of a charter. Such charter shall be adopted or amended if approved at an election by a majority of the votes cast thereon. Not less than ten percent of those voting in the last preceding gubernatorial election in the affected jurisdiction may by petition initiate the question of whether to adopt or amend a charter. A chartered governmental unit may exercise any legislative power or perform any function not denied by its charter, the Constitution or the general laws of the state. The charter may provide for any form of executive, legislative

A r t ic l e I X   n   181 and administrative structure which shall be of superior authority to statute, provided that the legislative body so established be chosen by popular election and that the administrative proceedings be subject to judicial review. Powers and functions of home rule units shall be construed liberally.

A 1962 amendment, similar to an amendment rejected in 1958, added Sections 4 and 5 to former Article X of the constitution. The 1972 amendment then combined Sections 4 and 5 of former Article X into this section. This amendment extended the home role provision to counties and combinations of cities and counties, and it dispensed with the requirement for charter commissions. The amendment also combined other provisions of former Articles IX and X into a new Article IX. Article IX allows cities to adopt per majority vote a “home rule” charter, enabling cities to exercise any legislative power or perform any function not denied by its charter, the constitution, or the general laws of the state. Such a charter may generally provide for any form of executive, legislative, and administration structure. According to an attorney general opinion, a home rule-chartered municipality cannot regulate video lottery beyond the limits specifically authorized by the legislature (Op. Att’y Gen. 08-06, 2008). Section 3 Intergovernmental Cooperation Every local government may exercise, perform or transfer any of its powers or functions, including financing the same, jointly or in cooperation with any other governmental entities, either within or without the state, except as the Legislature shall provide otherwise by law.

The 1972 amendment added this section to the constitution. Section 4 Local Initiatives to Provide for Cooperation and Organization of Local Governmental Units On or after January 1, 2001, the voters of any unit of local government shall have the right to initiate proposals for cooperation within or between local governmental units, either within or without the state, except as the Legislature shall provide otherwise by law. Such proposals may include combining, eliminating, and joint financing of offices, functions, and governmental units. Such proposals shall be adopted if approved at an election by a majority of the votes cast thereon in each affected unit. A number not less than fifteen percent of those voting in the last preceding gubernatorial election in each affected jurisdiction may by petition initiate the question of whether to adopt the proposal at the next general election.

A 1999 amendment, approved by the voters on November 7, 2000, added this section to the constitution.

Article X Municipal Corporations [Repealed]

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Article XI Revenue and Finance

Section 1 Annual Tax The Legislature shall provide for an annual tax, sufficient to defray the estimated ordinary expenses of the state for each year, not to exceed in any one year two mills on each dollar of the assessed valuation of all taxable property in the state, to be ascertained by the last assessment made for state and county purposes. And whenever it shall appear that such ordinary expenses shall exceed the income of the state for such year, the Legislature shall provide for levying a tax for the ensuing year, sufficient, with other sources of income, to pay the deficiency of the preceding year, together with the estimated expenses of such ensuing year. And for the purpose of paying the public debt, the Legislature shall provide for levying a tax annually, sufficient to pay the annual interest and the principal of such debt within ten years from the final passage of the law creating the debt; provided, that the annual tax for the payment of the interest and principal of the public debt shall not exceed in any one year two mills on each dollar of the assessed valuation of all taxable property in the state, as ascertained by the last assessment made for the state and county purposes. Provided, that for the purpose of establishing, installing, maintaining and operating a hard fiber twine and cordage plant at the state penitentiary at Sioux Falls, South Dakota, the Legislature shall provide for a tax for the year 1907 of not to exceed one and one-half mills on each dollar of the assessed valuation of all taxable property in the state, as ascertained by the last assessment made for state and county purposes.

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A number of amendments were proposed to the whole of Article XI but were rejected. For instance, proposals to add a new Section 14 were rejected in 1988 and 1990. As for Section 1, an amendment approved in 1906 added the third paragraph. This section relates to three different items of taxation: first, the annual tax for the estimated ordinary expenses of the state; second, taxation to pay deficiencies from preceding years; and third, taxation to pay the public debt (In re Limitation of Taxation, 1893). Although, the legislature is confined to a certain fixed rate for the first and third items of taxation, it has more discretion in levying a tax to cover a deficiency occurring when ordinary expenses exceed the revenues available to pay those expenses. However, all revenues raised to pay such deficiency must be used exclusively for that purpose and cannot be diverted to any other use. As the court noted in In re Limitation of Taxation, Section 2 of Article XII must be read together with Article XI, Section 1. In that former section, the South Dakota Constitution dictates that appropriations for ordinary expenses can be made by a simple majority vote by the legislature. However, all other appropriations must be made by a two-thirds vote of the legislature. Thus, to make an appropriation for a deficiency, as authorized in Article XI, Section 1, it must pass by a two-thirds vote in each house and must be the subject of an independent and separate bill. As the court explained: We regard this plainly marked distinction between ordinary and extraordinary expenses, and the extreme carefulness with which the Constitution has undertaken to guard the taxpayers and the public treasury against hasty and ill-advised outlays for extraordinary expenses, as peculiarly significant in construing the constitutional provisions involved.

As the court further stated: Because of the possibility of anticipating such extraordinary contingencies, and the consequent impracticability of fixing in advance an arbitrary and inexorable rule for the limitation and control of taxation necessary to meet them, the constitution attempts to furnish an adequate restriction and protection in the requirement that no bill appropriated money for an extraordinary purpose can become a law without the support of two-thirds of all the members of each house.

Therefore, when read together, Article XI, Section 1 and Article XII, Section 2 place significant restrictions on the legislature’s appropriations abilities when dealing with deficiencies or extraordinary expenditures. Section 2 Classification of Property for Taxation—Income To the end that the burden of taxation may be equitable upon all property, and in order that no property which is made subject to taxation shall escape, the

A r t ic l e X I   n   18 7 Legislature is empowered to divide all property including moneys and credits as well as physical property into classes and to determine what class or classes of property shall be subject to taxation and what property, if any, shall not be subject to taxation. Taxes shall be uniform on all property of the same class, and shall be levied and collected for public purposes only. Taxes may be imposed upon any and all property including privileges, franchises and licenses to do business in the state. Gross earnings and net incomes may be considered in taxing any and all property, and the valuation of property for taxation purposes shall never exceed the actual value thereof. The Legislature is empowered to impose taxes upon incomes and occupations, and taxes upon incomes may be graduated and progressive and reasonable exemptions may be provided.

Two amendments to this section were approved in 1912 and 1918. Another amendment was rejected in 1954. The 1912 amendment inserted a provision that taxes should be collected for public purposes only and inserted a sentence reading “franchises and licenses to do business in the state, gross earnings and net income, shall be considered in taxing corporations and the power to tax corporate property shall not be surrendered or suspended by any contract or grant to which the state shall be a party.” The 1918 amendment authorized a division of property into classes and substituted the sentence treating privileges, franchises and licenses as property for the sentence inserted by the 1912 amendment. The 1918 amendment also added the provisions relating to consideration of income in taxing property and to taxation of incomes and occupations. Finally, it deleted the sentence requiring that corporate property be assessed and taxed on the same basis as individual property. This section requires all taxes to be uniform. It relates exclusively to the ordinary property tax; it does not relate to a tax like the inheritance tax (In re McKennan’s Estate, 1910). This provision does not prevent the legislature from changing the object of a tax from regulation to revenue; what it does prevent is a diversion of the proceeds of taxes which have already been levied or collected (State ex rel. Parker v. Youngquist, 1943). The valuation of property for taxation purposes shall not exceed the actual value of the property (Tidball v. Miller, 1948). Furthermore, taxes can only be levied for public purposes; however, courts give the legislature wide latitude in determining whether a particular statutory purpose is public or private (Meierhenry v. City of Huron, 1984). For instance, the court upheld the loaning of public money to settlers, since the promotion of land settlement is a public and not a private purpose (Wheelon v.  South Dakota Land Settlement Board, 1921). A legislative appropriation to a member of the state militia, to compensate him for injuries received while in an off-duty tussle with fellow members of the militia, was determined to be of a public purpose, since it would tend to create and maintain an efficient state militia; thus, it was not invalid as a gift of public money for a private benefit (Nancolas v. Jones, 1924). And finally, ethanol production payments and an appropriation to a council promoting technical and marketing assistance to producers of certain crops did not constitute

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an invalid use of public funds for private purposes—the court found that the legislature could reasonably conclude that laws encouraging production and export of ethanol made from corn would achieve the purpose of promoting agriculture (General Contractors of South Dakota, Inc. v. Schreiner, 1992). An appropriation of public money must be for some use or object which directly or indirectly materially aids in the proper functioning of some governmental agency, and in so doing serves a public purpose (Mackey v. Reeves, 1919). As the court has stated, an absence of a public purpose will only be found if it clearly appears from the act and the appropriation that it is for a purely private purpose. If any reasonable doubt exists as to whether the appropriation is for a public or private purpose, the legislation must be upheld (Torigian v. Saunders, 1959). Since the promotion of the dairy industry is a matter with which the legislature may properly be concerned, a tax imposed on butter fat, so as to provide funds for the promotion of the dairy industry, is a tax levied for a “public purpose” within the meaning of Section 2. Nonetheless, the court has on occasion found an appropriation to be for a private purpose. Feed loans to livestock raisers were held not a public purpose for which the legislature could authorize the expenditure of public money (In re Opinion of the Judges, 1971). In addition, the court has ruled that the state cannot levy and collect taxes so as to enter and finance the business of selling gasoline, since there is no constitutional authority for the state to own and operate such a business (White Eagle Oil and Refining Company v. Gunderson, 1925). In ruling that an appropriation bill empowering the state of South Dakota to engage in the business of retail sales and gasoline was not a public purpose, the South Dakota Supreme Court did recognize that some business ventures constituted a public purpose: It is generally conceded that the supplying of water from municipalities as a public service for which taxes may be levied; the same be said of furnishing gas for electricity. The usual reason being that such commodities as water, gas, and electricity cannot be furnished by private persons or corporations without the exercise of eminent domain. (White Eagle Oil and Refining Co. v. Gunderson, 1925)

However, the court found that the retail selling of gasoline was not a business that could be entered into by the government and supported by public taxation. As the court stated: There is nothing essentially different in the business of retailing gasoline from that of any other commodity, and while it may be conceded that gasoline under present economic conditions is a necessity, there is no reason why it may not be retailed by private enterprise.

On the other hand, the court has recognized that the acquisition of land in blighted areas and the sale or leasing of this land for private redevelopment can be a legitimate public purpose (Meierhenry v. City of Huron, 1984).

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The constitutional requirement of equality and uniformity of taxation relates to the levy of taxes; it does not limit the legislature’s authority to allocate or distribute public funds (Meierhenry v. City of Huron, 1984). Moreover, the valuation of a taxpayer’s property in one county at twice its assessed value in another county did not violate the constitutional requirement for equality and uniformity in taxation, since the principles of equality and uniformity in taxation apply only to the particular taxing district or county in which the properties involved are situated (West Two Rivers Ranch v. Pennington County, 2002). The constitution does not require uniformity of taxation between classes of property as well as within property classes (Matter of Refusal of State Board of Equalization to Hear Appeal of Lake Poinsett Area Development Association, 1983). In fact, the uniformity clause implies that different classes of property may be taxed at different rates (Commercial State Bank of Wagner v.  Wilson, 1928). Under the Section 2 uniformity clause, the tax rate must be the same on each separate item of taxable property, for each separate purpose, within each taxing district (Ewert v. Taylor, 1916). The constitutional demand for uniformity applies within a class, and not between classes of property (Burlington Northern Railroad Company v. Green, 2001). In Burlington Northern, the individual, as a county taxpayer, was not a centrally assessed taxpayer, as was a railroad; thus, the requirement of uniformity did not apply to an individual’s claim that railroad received a better tax treatment than he did. The assessment and collection of taxes must be such that every person and corporation be taxed in proportion to the value of their property, and the laws providing for the assessing of taxes on corporation property must be by the same methods as for the assessing and levying of taxes on individual property (Johnson v. Wells Fargo Company, 1915). Under the South Dakota Constitution, property for taxation purposes cannot be valuated under a method that considers gross income. Rather, property must be assessed according to the value of that property, without reference to the income derived from the property. The Johnson court held that making gross earnings in the state the controlling factor in determining the taxation value of corporation property violated Section 2, which requires taxes on corporate property to be assessed in the same manner as that provided for taxes on individual property. The legislature does have the power under Section 2 to impose taxes on privileges, occupations, or licenses to do business, and the funds so collected may be appropriated for the purpose of regulation or revenue (Parker v. Youngquist, 1943). But the court in Parker recognized the general rule that license, privilege, or occupation taxes may not be imposed under authority of the police power for revenue purposes, and that the licenses required of useful occupations can carry with them only such fee as is necessary to pay the expense of licensing and supervision. The court in Botkin v. Welsh (1933) found that privilege and occupation taxes levied for the purpose of revenue were valid under Section 2.  And in Peterson Oil Company v.  Frary (1924), the court held that

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a law “which combines regulation with revenue sharing” does not violate the constitution. Section 3 Corporate Tax Power of State Not Suspended The power to tax corporations and corporate property shall not be surrendered or suspended by any contract or grant to which the state shall be a party.

In interpreting this section, the South Dakota Supreme Court upheld an imposition on insurance companies of an annual tax on the gross premiums received in the state during the preceding year. The court stated that this tax related solely to taxes on corporations and was not a tax on corporate property (Queen City Fire Insurance Company v. Basford, 1911). Section 4 Banks and Bankers Taxed The Legislature shall provide for taxing all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also for taxing the notes and bills discounted or purchased, moneys loaned and all other property, effects or dues of every description, of all banks and of all bankers, so that all property employed in banking shall always be subject to a taxation equal to that imposed on the property of individuals.

The court has held that even though this section provides for the taxing of financial investments, the bonds of a municipal corporation are not subject to taxation, for that would cause a conflict between the borrowing and taxation power of the state (National Surety Company v. Starkey, 1919). Section 5 Public Property Exempt from Taxation—Exceptions The property of the United States and of the state, county and municipal corporations, both real and personal, shall be exempt from taxation, provided, however, that all state owned lands acquired under the provisions of the rural credit act may be taxed by the local taxing districts for county, township and school purposes, and all state owned lands, known as public shooting areas, acquired under the provisions of § 25.0106 SDC 1939 and acts amendatory thereto, may be taxed by the local taxing districts for county, township and school purposes in such manner as the Legislature may provide.

A 1930 amendment added the provision permitting the taxation of rural credit lands. A 1948 amendment added the provision permitting the taxation of public shooting areas. Under this section, the properties owned by taxing districts and governmental subdivisions are not subject to taxation (City of Sioux Falls v.  State Board of Equalization, 1973). The constitutional exemption of

A r t ic l e X I   n   191

public property from taxation includes all property of municipal corporations, irrespective of the use of that property (Petition of CM Corporation, 1983). Furthermore, the constitutional exemption of government-owned property from taxation is self-executing and is not dependent on any condition other than ownership (Egan Independent Consolidated School District v. Minnehaha County, 1936). An independent consolidated school district is a “municipal corporation” within the meaning of Section 5 (Egan Independent Consolidated School District v. Minnehaha County, 1936). Property which is owned by a municipality, but which is leased and subleased in connection with an economic development project, is still exempt from taxation (Petition of CM Corporation, 1983). However, this section does not exempt a city-owned liquor store from a statutory tax of 10 percent of wholesale price of all stocks of liquor held in inventory as of a certain date, since the tax was not a property tax (City of Pierre v. Stout, 1937). As the court explained in Whittaker v. City of Deadwood (1909), a special assessment for a local improvement by a municipal corporation against property of the county or municipality does not fall within the Section 5 tax exemption. According to the court, a special assessment for local street improvement is not taxation, and such a special assessment does not conflict with a constitutional exemption of property from taxation. Thus, the power of cities to make special assessments is not restricted as to the ownership of the property against which the levy may be made. Section 6 Property Exempt from Taxation—Personal Property The Legislature shall, by general law, exempt from taxation, property used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, property acquired and used exclusively for public highway purposes, and personal property to any amount not exceeding in value two hundred dollars for each individual liable to taxation.

A 1958 amendment to this section exempted property used for highway purposes. This section is related to both Sections 2 and 5 of Article XI; thus, cases involving Section 6 may also involve those sections. In State v.  Johns (1920), the court stated that the provisions in Section 2 of Article XI giving the legislature the power to determine what property shall not be subject to taxation are consistent with the provision in Section 6 giving the legislature the power to exempt from taxation personal property of any amount not exceeding in value $200 for each individual liable to taxation. Because this section is not self-executing, it does not diminish the powers of the legislature to determine what class or classes of property shall be subject to taxation or what property is not subject to taxation (National College of Business v.  Pennington County, 1966). According to the court, the public policy expressed by Section 6 is to exempt from taxation all property owned

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by religious societies and used exclusively for religious purposes (McFarland v. Keenan, 1957). The determination of whether property is used exclusively for benevolent purposes within the meaning of a tax exemption statute requires an evaluation of the purpose of the property’s use (Loyal Order of Moose Lodge No. 1137 v. Pennington County, 1997). The property of a benevolent organization is not used exclusively for the purpose for which it is organized, as required by the tax exemption statute, if its activities and income inure primarily to the benefit of its members, even if there are incidental benefits to the public. For instance, a non-profit fraternal organization’s lodge was not entitled to a complete property tax exemption where the lodge was primarily used to facilitate social activities exclusive to its members, where the majority of income from member dues, fees, and donations was used to operate the facility; where the lodge was open to the public only on special occasions; and where the lodge’s bar and restaurant were maintained for the convenience of the members and the recruitment of new members. In another case, a wellness center that included exercise facilities, a retail sales area, and a cafeteria did not qualify as a charitable organization exempt from property tax, even though the center had a policy that no person would be denied membership based upon an ability to pay. It was found that of the 2,669 memberships involving 4,836 members, only 14 memberships were reduced or free—and there was no showing that the center provided a service that would otherwise have been provided by government (Appeal of Sioux Valley Hospital Association, 1994). An institution will be classified as charitable for tax exemption purposes if the dominant purpose of its work is for the public good and the work done for its members is but a means adopted for this purpose; but if the dominant purpose of its work is to benefit its members or a limited class of persons, it will not be so classed, even though the public may derive an incidental benefit from such work (South Dakota State Medical Association v. Jones, 1966). A benevolent property-owning corporation is not entitled to tax exemption solely on the basis of ownership; the property itself must also be used exclusively for charitable, benevolent, or religious purposes. The operation of a school for profit, in and of itself, does not exclude the school from acquiring a tax-exempt status as an educational institution (South Dakota Hair Styling Inc. v. Minnehaha County, 1975). To qualify for a property tax exemption as an educational institution, a for-profit school must be used exclusively for instructional or administrative purposes and must provide at least some substantial part of the educational training which would otherwise be furnished by tax-supported schools. For instance, a hair styling academy that taught only one subject slightly related to subjects taught in the public schools of the state and that was operated primarily for commercial purposes was not entitled to a property tax exemption as an educational institution. In another case, property owned

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by a privately-owned, for-profit business college, which offered courses similar to courses taught in tax-supported institutions, was exempt from taxation, even though the courses completed by students at the college were not given full faith by tax-supported colleges and universities of the state (National College of Business v. Pennington County, 1966). Section 7 Other Exemption Laws Void All laws exempting property from taxation other than that enumerated in §§ 5 and 6 of this article, shall be void.

For a related constitutional provision dealing with classes of property exempted by the legislature, see Section 2 of Article XI. Under Section 7, the legislature is without power to exempt property from taxation other than the classes of property that are mentioned in the constitution (National Surety Company v.  Starkey, 1919). Section 7 relates exclusively to property exemptions, and does not control, for instance, exemptions made under inheritance tax laws (In re McKennan’s Estate, 1910). Section 8 Object of Tax to Be Stated—Use of Vehicle and Fuel Taxes No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same, to which the tax only shall be applied, and the proceeds from the imposition of any license, registration fee, or other charge with respect to the operation of any motor vehicle upon any public highways in this state and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel except costs of administration and except the tax imposed upon gasoline or other liquid motor fuel not used to propel a motor vehicle over or upon public highways of this state shall be used exclusively for the maintenance, construction and supervision of highways and bridges of this state.

A 1940 amendment to this section added the provisions relating to motor vehicle fees and fuel taxes. The requirement that a tax law state the purpose of the tax prevents diversion of taxes that have been previously levied or collected or that have been appropriated to other purposes. However, amending a statute to provide a different use for taxes to be levied in the future does not violate this section (Meierhenry v. City of Huron, 1984). To award damages out of a state highway fund for a litigation claim arising out of work performed on a highway construction project, or as a result of a construction contract entered into by the state, would not violate this section, which requires that license and registration fees, as well as revenues from fuel taxes, be used exclusively for maintenance, construction, and supervision of public highways (Candee Construction Company Inc. v. South Dakota Department of Transportation, 1989).

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The intent of the framers and ratifiers of this section was to dedicate the proceeds of motor vehicle fuel taxes to the maintenance, construction, and supervision of public highways (South Dakota Auto Club Inc. v. Volk, 1981). However, this section does not prevent the state from compensating a Department of Transportation employee for salary that was not paid (Chilstrom v. State Dept. of Transportation, 1978). A statute requiring the state treasurer to transfer 10 percent of the gross tax receipts of the State Highway Commission to the state’s general fund violated Section 8, insofar as it diverts such funds to the general fund without providing any assurance that they will be used exclusively for highway purposes (Parker v. Youngquist, 1943). The statute contained no appropriation or allocation of these special funds in definite amounts to designated departments of government for highway administration, facilities, or services, with proper administrative regulation preventing the misuse of the funds. In addition, a statute that imposed an additional tax on motor fuels and appropriated the proceeds of that tax to fund railroad operations and maintenance was unconstitutional, violating the requirement that proceeds from any excise tax on motor fuels be used exclusively for highway construction and supervision (South Dakota Auto Club Inc. v. Volk, 1981). The court in Associated General Contractors of South Dakota Inc. v. Schreiner (1992) further elaborated on the highway fund provisions of Section 8. According to the court, the language of Section 8 indicates that “the people who ratified the constitutional amendment intended the taxes on fuel not used to propel vehicles on the state highways was excepted from the state highway fund.” In that case, the court found that the ethanol incentive tax was an unconstitutional diversion of highway funds under Section 8.  As the court explained the section: The history of Article XI, Section 8 of our constitution . . . and the cases of the South Dakota Supreme Court since the enactment of that constitutional provision clearly indicates that this is a restricted and impressed fund created by the constitution that prevents the use of the funds described in the article for payment of any obligation of the state other than those described in the article.

According to the court, the legislature is not allowed to directly appropriate the proceeds of the motor vehicle fuel tax for any use other than the maintenance, construction, and supervisions of highways and bridges. But through the use of tax credits applied before collection, the legislature was found to be indirectly diverting tax proceeds dedicated to the maintenance, construction, and supervision of highways and bridges. Thus, according to the court, the ethanol tax credit was an attempt by the legislature to do indirectly what it is forbidden to do directly. In Candee Construction Company Inc. v.  South Dakota Department of Transportation (1989), the South Dakota Supreme Court had to decide

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whether damages for a breach of contract action concerning a highway construction project could be paid out of the state highway fund, or whether Section 8 prevented such a payment, since it would not be “used exclusively for the maintenance, construction, and supervision of highways and bridges of the state.” Recognizing that previous opinions had strictly construed the meaning of Section 8 to prevent the payment of any state obligation other than those specifically described in the constitution, the court held that payment of damages for work performed on a highway construction project did not violate Section 8. In doing so, the court reversed an earlier decision in Lindekugel & Sons Inc. v. South Dakota State Highway Commission (1972), where the court had held that Section 8 did not authorize payment of damages for a breach of contract action brought by a contractor, as distinguished from payments due under a contract. Section 9 Taxes Paid into Treasury—Appropriations Required for Expenditure All taxes levied and collected for state purposes shall be paid into the state treasury. No indebtedness shall be incurred or money expended by the state, and no warrant shall be drawn upon the state treasurer except in pursuance of an appropriation for the specific purpose first made. The Legislature shall provide by suitable enactment for carrying this section into effect.

A proposed amended to this section was rejected on November 6, 1984. The primary purpose of Section 9, prohibiting the incurrence of indebtedness except in pursuance of a specific appropriation, was to limit indebtedness to such subjects and to such amounts as were expressly approved by the department of the government that was responsible for its payment (Carter v. Thorson, 1894). A statute authorizing circuit judges to act in circuits other than their own and providing that their expenses in so doing shall be paid out of any money in the state treasury not otherwise appropriated violated Section 9, which provides that no warrant be drawn on the state treasurer, except in pursuance of an appropriation for a specific purpose. In Candee Construction Company v. South Dakota Dept. of Transportation (1989), involving a breach of contract action brought against the State Department of Transportation by a highway construction company, the court held that Section 9 did not preclude an award for damages. The court found that the underlying statute provided a continuing appropriation for damages awarded against the state as a result of a lawsuit brought against the state pursuant to an authorizing statute. In so finding, the court stated that the previous interpretation provided by Lindekugel was overly restrictive. In Lindekugel & Sons Inc. v. South Dakota State Highway Commission (1972), the court adhered to the previous rule that where funds are only available for highway construction and maintenance, an action cannot be maintained by a contractor for damages for breach of contract. Prior to that, in Sigwald

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v. State (1926), the court had held that, pursuant to Section 9, monies levied and collected for state highway purposes were not available for the payment of damages for breach of contract actions. Essentially, the court found that there was no appropriation for payment of damages accruing from a breach of contract. In Brams v.  State (1935), the court stated that Section 9 is intended as a limitation upon the power of officers, departments, and agencies of the state other than the legislature; it does not prevent the legislature from incurring or directing the incurrence of indebtedness. The court in Brams found that if there was legislative authority for a contract, then there was also a liability created on the part of the state, which in turn constituted the appropriation for all liability incurred by that contract. Consequently, the court found that in fact the legislature had made an appropriation for payment of damages in a breach of contract action. Section 10 Special Assessments for Local Improvements—Taxes for Municipal Purposes The Legislature may vest the corporate authority of cities, towns and villages, with power to make local improvements by special taxation of contiguous property or otherwise. For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes; but such tax shall be uniform in respect to persons and property within the jurisdiction of the body levying the same.

Section 10, insofar as it requires municipal taxation to be uniform with respect to property within the jurisdiction of the body levying the tax, is applicable to general taxation only, whereas the authority to level special assessments is controlled by constitutional Article VI, Section 17 (Haggart v. Alton, 1912). Section 10 is not applicable to special assessments for local improvements levied against all property benefited by an improvement in proportion to the benefits conferred (Haggart v. Alton, 1912). Special taxation or special assessments are lawful only when based upon a special benefit accruing from the local improvement for which the tax or assessment was made. General taxes, on the other hand, are imposed by a governing body to raise funds for the general expenses of the particular community or district, and are levied against all taxable property without reference to special benefits to those taxed (Attorney General Opinion No. 85-28, 1985). A statute authorizing municipal corporations to acquire and maintain public convention halls and to finance costs of those halls by special assessments on all privately-owned property, except for one-family or two-family dwellings used only for residential purposes, violated the constitutional requirement that the legislature may vest local government units with the power to make

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local improvements by special taxation (Ruel v. Rapid City, 1969). Under a special assessment, the benefit to the property must be actual, physical, and material, and not merely speculative or conjectural. An assessment cannot be used to impose an unequal and non-uniform tax on a minority of property owners for the benefit of the public. Under the constitutional provision limiting the corporate authority of local governmental units to make local improvements by special taxation, the term “local improvement” is a public improvement which, by reason of its being confined to a locality, enhances the value of adjacent property as distinct from benefits diffused throughout the municipality. As the court explained: Special assessments are understood to refer to money raised or levied for some local municipal purpose to which the funds so collected are to be specifically applied in making the local improvements. The assessment is not laid upon a whole community, but only on a small and defined part thereof; and, while a tax is levied upon all property of a state, county, city, or town without any reference to special benefits to the individuals taxed, special assessments are presumed to be made on account of special benefits to the property assessed, conferred by the improvements for which the special tax is levied. We believe it has been made clear by our decisions that the benefit resulting to private property from the construction of a local public improvement in order to be the basis for a special assessment, must be a special benefit, by which is meant a benefit above and beyond that enjoyed in common with the public at large or the rest of the community. (Ruel v. Rapid City, 1969)

According to the court in Ruel, a public convention hall would undoubtedly on occasion attract large groups of people to Rapid City, thus contributing to the economy of the city. However, the benefit conferred by such a facility is general to the community and cannot be translated into a specific benefit to commercial and other non-exempt real estate within the city. Consequently, the court found that a special assessment for the public convention hall was not a local improvement and was thus unconstitutional. In essence, the assessment amounted to a special tax upon a minority of the property owners, even though the benefit was to the public at large. Furthermore, much of the real property within the proposed district would not at all be benefited by a public convention hall. Section 11 Unauthorized Use of Public Money as Felony The making of profit, directly or indirectly, out of state, county, city, town or school district money, or using the same for any purpose not authorized by law, shall be deemed a felony and shall be punished as provided by law.

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As explained by the court in State v. Douglas (1944), this section prohibits the making of a personal profit by the state treasurer as a consequence of the performance of any official duty. According to the court: Neither the constitution nor the statute in question makes it an offense for the Treasurer to profit by the performance of any official duty, but only by the use of state funds. Neither does the constitution nor the statute make it a felony for the State Treasurer to profit as a consequence of the use of such funds, but only to make profit out of the personal or private use of such funds. There is a marked distinction between making a profit out of state funds and making a profit as a consequence of using state funds. Section 12 Annual Statement of Receipts and Expenditures An accurate statement of the receipts and expenditures of the public moneys shall be published annually, in such manner as the Legislature may provide.

Because this section is not self-executing, the legislature must enact laws to make it effective (State v. South Dakota Rural Credit Board, 1922). Section 13 Vote Required to Increase Certain Tax Rates or Valuations The rate of taxation imposed by the state of South Dakota on personal or corporate income or on sales or services, or the allowable levies or the percentage basis for determining valuation as fixed by law for purposes of taxation on real or personal property, shall not be increased unless by consent of the people by exercise of their right of initiative or by two-thirds vote of all the members elect of each branch of the Legislature.

A 1978 amendment added this section to the constitution. To increase the rate on income, sales, or service taxes, voters must exercise the right of initiative, or each branch of the legislature must pass the rate increase by a two-thirds vote (In re Janklow, 1999). This provision, which specifies two exclusive methods by which the rate of taxation can be increased, is a strict limitation on the legislature’s inherent authority regarding taxation. However, any tax that is not imposed upon sales or income is not governed by this section; thus, a mineral severance tax was not subject to this provision (Homestake Mining Co. v. Johnson, 1985). Section 14 Vote Required to Impose or Increase Taxes The rate of taxation imposed by the State of South Dakota in regard to any tax may not be increased and no new tax may be imposed by the State of

A r t ic l e X I   n   19 9 South Dakota unless by consent of the people by exercise of their right of initiative or by two-thirds vote of all the members elect of each branch of the Legislature.

A 1996 amendment to the constitution added this section. Section 15 Inheritance Tax Prohibited No tax may be levied on any inheritance, and the Legislature may not enact any law imposing such a tax. The effective date of this section is July 1, 2001.

An initiated constitutional Amendment C, approved on November 7, 2000, added this section to the constitution.

Article XII Public Accounts and Expenditures

Section 1 Appropriation and Warrant Required for Payment from Treasury No money shall be paid out of the treasury except upon appropriation by law and on warrant drawn by the proper officer.

Before any liability can attach to the state, there must first be an appropriation by the legislature for that liability. The South Dakota Supreme Court has stated that a lawsuit against the state could not be maintained in the absence of a specific appropriation by the legislature for the specific purpose of paying the claims that are the subject of the lawsuit (Pietz v. State, 1936). If the legislature has not made an appropriation for the specific purpose of paying out the claims involved in the lawsuit, then Section 1 does not warrant any payment by the state to satisfy any judgment. According to the court in Pietz, “There is an unbroken chain of authorities holding that before any suit for payment can be brought there must be an appropriation for that specific purpose.” The South Dakota Supreme Court in State ex rel. Parker v. Youngquist (1943) defined the term “appropriation” as follows: An appropriation is legislative sanction for the disbursement of the public revenue . . . [T]‌he test of whether an act is an appropriation is whether the money may be paid or drawn from the State Treasury on authority of the act . . . [T]he act in question authorizes no disbursement of public revenue. No money may 201

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be drawn from the State Treasury on authority of the act . . . [T]he law is not an appropriation of public money. Section 2 Contents of General Appropriation Bill—Separate Appropriation Bills The general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for common schools. All other appropriations shall be made by separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the Legislature.

In State ex rel. Parker v.  Youngquist (1943), the court addressed the issue of whether a law amounted to an appropriation act, stating that the test of whether an act is an appropriation is whether the money may be paid or drawn from the state treasury on authority of the act. But if the act in question authorizes no disbursement of public revenue, it is not an appropriation. This constitutional provision applies regardless of whether the revenue in the state treasury is derived from general taxation, license fees or other sources (State ex rel. Jensen v. Kelly, 1937). Although the legislature is free to impose conditions on appropriated funds within a general appropriations bill, the legislature may not substantively legislate in that bill so as to change, amend, or repeal existing law (South Dakota Educational Association v. Barnett, 1998). Under this section, appropriations for ordinary and current expenses do not fall within the constitutional provision prohibiting extraordinary expenses from being included in general appropriations bills. Such expenses require the separate bill/two-thirds vote requirement (APA v. Butler, 2001). Special appropriations, unlike appropriations for ordinary or current expenses of state government, require a two-thirds vote of each house of the legislature for passage (Duxbury v. Harding, 1992). The purpose of the constitutional two-thirds vote requirement for special appropriations is to protect taxpayers and the public treasury against hasty and ill-advised outlays for extraordinary expenses (Duxbury v. Harding, 1992). Ordinary expenses mean any related expenses that recur with regularity and certainty (State ex rel. Oster v. Jorgenson, 1965). Current expenses include any usual and continuing expenditure for the maintenance of property and for conducting regular and authorized functions of the state. However, the cost of land acquisitions or the erection of permanent buildings, as well as other capital expenditures, are not current expenditures under this section mandating that general appropriation bills should embrace nothing but the current expenses of state institutions. The South Dakota Supreme Court has stated that an appropriations bill is not a law in the ordinary sense. Such bills pertain only to the administrative functions

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of government, and define no rights nor punish any wrongs. And because appropriation bills are administrative in nature, they should embrace nothing but appropriations (APA v. Butler, 2001). Consequently, legislators should be free to vote on such bills, knowing that nothing else is involved in those bills. In addition to specifying the distinct items of appropriation, the legislature may include in an appropriation bill certain qualifications, conditions, limitations, or restrictions on the expenditure of funds, particularly if these matters would not be dealt with more properly in a separate bill (South Dakota Educational Association v. Barnett, 1998). However, a clause in an appropriations bill concerning salary increases for certain employees of the state Board of Regents was found to be an attempt to change, amend, or repeal an existing law on the collective bargaining rights of the affected employees, thus constituting a subject other than appropriations. Consequently, the inclusion of that clause in an appropriations bill violated constitutional requirements on what may be included in a general appropriations bill (South Dakota Educational Association v. Barnett, 1998). This constitutional limitation on what can be included in a general appropriations bill was explained in State v. Jorgenson (1965): A general appropriations bill is not legislation in the true sense of the term. It is as its language implies “a setting apart of the funds necessary for the use and maintenance of the various departments of the state government already in existence and functioning.” In providing that it should embrace nothing else, the framers of the constitution undoubtedly intended that members of the legislature should be free to vote on it knowing that appropriations and nothing else were involved. Its singular object is the appropriation of money. It serves no other purpose and its contents are constitutionally defined and limited.

But a general appropriations bill is not limited specifically to a list of departments and the funds appropriated to those departments. The legislature may also include certain qualifications, conditions, limitations, or restrictions on the expenditure of funds. As the South Dakota Supreme Court has recognized, “there is a fine line between permissible qualifications, conditions, limitations and restrictions” on the expenditure of funds and altogether impermissible legislation in an appropriations bill (South Dakota Educational Association v. Barnett, 1998). Generally, an appropriations bill should contain only the appropriation of money for specific purposes, as well as such other matters that are incidental and necessary to ensuring that the money is properly spent for those purposes only. What the legislature cannot do in a general appropriations bill is to substantively legislature in a manner that changes, amends, or repeals existing law. In APA v. Butler (2001), the court held that modification of an appropriation is a proper subject in a general appropriations bill. Consequently, a modification of an existing law directed at appropriations does not violate Section 2 by changing, amending, or repealing existing laws on subjects other than appropriations.

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Section 2 requires that special appropriations be made by separate bills, each embracing only one object. Continuing appropriations also require a two-thirds vote of each house of the legislature (Duxbury v. Harding, 1992). Thus, a continuing appropriation constitutes a special appropriation (State ex rel. Jensen v. Kelly, 1937). Although the category of continuing appropriations are not explicitly recognized in the South Dakota Constitution, the court has stated that such appropriations are subject to the two-thirds voting requirement of Section 2. With respect to the treatment by Section 2 of “other appropriations,” aside from appropriations for the ordinary and current expenses of state government, the court has offered the following explanation: This constitutional provision allows a legislative majority to appropriate funds for the ordinary expenses of state government and denies to a minority the power to prevent, obstruct or stop the operation of the vital affairs of government by denying those necessary funds. But the door to the State Treasury is not so easily opened as to all other appropriations. They musts be the single subject of separate bills and receive the affirmative approval of two-thirds of all members of both houses of the legislature. Matters which could be included in the general appropriations bill may be the subjects of special appropriation bills without nullifying consequences. However, appropriations included within the general appropriations bill outside of and beyond its scope are void. (State ex rel. Oster v. Jorgenson, 1965)

Special appropriations, required to be the single subject of a separate bill passed by a two-thirds majority in both houses, are void if included in a general appropriations bill. In distinguishing between special appropriations and those for current and ordinary expenses, the Oster court referred to ordinary expenses as usual, normal, and not characterized by peculiar or unusual circumstances. Another definition used by a court for ordinary expenses of state government is whether they are necessary for the proper operation of the state government. As stated in Duxbury v. Harding (1992): The term ordinary expenses of the executive legislative and judicial departments of the state is construed to mean any related expenses which recurs with regularity and certainty. The term current expenses of state institutions on the other hand is equivalent to running expenses which includes any usual, regular and continuing expenditure for maintenance of property and for conducting the regular and authorized functions of the institution. Extraordinary, emergent and exceptional expenses for any purpose likewise fall within the category of all other appropriations.

As the court recognized in APA v.  Butler (2001), the longevity of a program often establishes it as an ordinary and recurring expense of state government.

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In Oster, the court explained the dangers against which the two-thirds vote requirement for special appropriations was meant to protect. This requirement arose from the impossibility of anticipating extraordinary contingencies, and the consequent impracticability of fixing an advanced rule for the control of taxes necessary to meet those contingencies. Furthermore, in examining the framers’ intent in adopting the two-thirds vote requirement, the court in In re Limitation of Taxation (1893) stated: This was doubtless regarded by the framers of the constitution as an adequate guarantee against unwise or imprudent use of public funds, a rule sufficiently flexible to meet emergencies, yet safe and trustworthy, because resting in the conscience and enlightened judgment of so large a proportion of the peoples’ immediate representatives.

But the constitutional two-thirds voting requirement is only imposed on the passage of special appropriations, not on the repeal or amendment of an existing special appropriation. Section 3 Extra Compensation Prohibited—Unauthorized Contracts—Change in Compensation of Officers—Appropriations for Defense of State The Legislature shall never grant any extra compensation to any public officer, employee, agent or contractor after the services shall have been rendered or the contract entered into, nor authorize the payment of any claims or part thereof created against the state, under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null and void; nor shall the compensation of any public officer be increased or diminished during his term of office: provided, however, that the Legislature may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion.

A related constitutional provision appears in Article XXI, Section 2, dealing with the two-thirds vote requirement for a change of salary for constitutional officers. The provision in Section 3 prohibiting the legislature from increasing or diminishing the compensation of any public officer during his or her term of office does not prevent a reduction in the salaries of county officers elected after a statute reducing those salaries went into effect (State ex rel. Lamm v. Spartz, 1934). Ordinarily, a public officer or employee cannot receive additional payment for performing services he or she is obligated by statute to provide (Department of Social Services of State ex rel. Wolf v. McCarty, 1993). However, a statute reducing a state’s attorney’s travel allowance did not violate Section 3, since that travel allowance constitutes expense reimbursement and not compensation within the meaning of Section 3 (Clark v. Board of Commissioners of Clark County, 1936). Expense reimbursement can be

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reduced during a term of office, as an expense allowance is not a grant of compensation—compensation being synonymous with salary (Christopherson v. Reeves, 1921). A retroactive application of a bill permitting extra compensation to be given pursuant to a contract between a state attorney and the Board of County Commissioners for legal services rendered would violate Section 3 (Simpson v. Tobin, 1985). However, a bill permitting counties to contract with part-time state attorneys for legal services, providing extra compensation to those attorneys, does not violate Section 3 if the bill is applied prospectively. Thus, Section 3 applies to retroactive grants of extra compensation, not to prospective changes in compensation. As the court explained, Section 3 prohibits bonuses in the form of extra compensation over and above that which was bargained for in the employment contract, while also prohibiting rewards after services have been rendered (Simpson v. Tobin, 1985). Section 4 Annual Statement Required An itemized statement of all receipts and expenditures of the public moneys shall be published annually in such manner as the Legislature shall provide, and such statement shall be submitted to the Legislature at the beginning of each regular session by the Governor with his message.

A related constitutional provision can be found in Article IV, Section 3, dealing with the governor’s message to the legislature. This is not a self-executing provision; hence, the legislature must make it effective through legislative enactment (State v. South Dakota Rural Credits Board, 1922). Section 5 Health Care Trust Fund Established—Investment—Appropriations There is hereby created in the state treasury a trust fund named the health care trust fund. The state treasurer shall deposit into the health care trust fund any funds on deposit in the intergovernmental transfer fund as of July 1, 2001, and thereafter any funds appropriated to the health care trust fund as provided by law. The South Dakota Investment Council or its successor shall invest the health care trust fund in stocks, bonds, mutual funds, and other financial instruments as provided by law. Beginning in fiscal year 2003, and each year thereafter, the state treasurer shall make a distribution from the health care trust fund into the state general fund to be appropriated by law for health care related programs. The calculation of the distribution shall be defined by law and may promote growth of the fund and a steadily growing distribution amount. The health care trust fund may not be diverted for other purposes nor may the principal be invaded unless appropriated by a three-fourths vote of all the members-elect of each house of the Legislature.

An amendment adding this section to the constitution was submitted to the voters on April 10, 2001 and approved.

A r t ic l e X I I   n   2 0 7 Section 6 Education Enhancement Appropriations

Trust

Fund

Established—Investment—

There is hereby created in the state treasury a trust fund named the education enhancement trust fund. The state treasurer shall deposit into the education enhancement trust fund any funds received as of July 1, 2001, and funds received thereafter by the state pursuant to the Master Settlement Agreement entered into on November 23, 1998, by the State of South Dakota and major United States tobacco product manufacturers or the net proceeds of any sale or securitization of rights to receive payments pursuant to the Master Settlement Agreement, any funds in the youth-at-risk trust fund as of July 1, 2001, and thereafter any funds appropriated to the education enhancement trust fund as provided by law. The South Dakota Investment Council or its successor shall invest the education enhancement trust fund in stocks, bonds, mutual funds, and other financial instruments as provided by law. Beginning in fiscal year 2003, and each year thereafter, the state treasurer shall make a distribution from the education enhancement trust fund into the state general fund to be appropriated by law for education enhancement programs. The calculation of the distribution shall be defined by law and may promote growth of the fund and a steadily growing distribution amount. The education enhancement trust fund may not be diverted for other purposes nor may the principal be invaded unless appropriated by a three-fourths vote of all the memberselect of each house of the Legislature.

This section was added to the constitution when the voters approved it on April 10, 2001. Section 7 Balanced Budget The Governor shall propose a budget in which expenditures or appropriations may not exceed anticipated revenue and existing funds available for expenditure or appropriation. Appropriations by the Legislature may not exceed anticipated revenue and existing funds available for expenditure or appropriation. Nothing in this section is intended to limit, restrict, expand, modify, or otherwise affect any other provision of this Constitution, including Article XIII.

This new section to Article XII was approved by the voters on November 6, 2012.

Article XIII Public Indebtedness

Section 1 State Enterprises—Legislative Vote Required—Defense of State— Rural Credits—Maximum Indebtedness For the purpose of developing the resources and improving the economic facilities of South Dakota, the state may engage in works of internal improvement, may own and conduct proper business enterprises, may loan or give its credit to, or in aid of, any association, or corporation, organized for such purposes. But any such association or corporation shall be subject to regulation and control by the state as may be provided by law. No money of the state shall be appropriated, or indebtedness incurred for any of the purposes of this section, except by the vote of two-thirds of the members of each branch of the Legislature. The state may also assume or pay any debt or liability incurred in time of war for the defense of the state. The state may establish and maintain a system of rural credits and thereby loan and extend credit to the people of the state upon real estate security in such manner and upon such terms and conditions as may be prescribed by general law. The limit of indebtedness contained in § 2 of this article shall not apply to the provisions of this section, but the indebtedness of the state for the purposes contained in this section shall never exceed one-half of one percent of the assessed valuation of the property of the state, provided however, that nothing contained in this section shall affect the refinancing or refunding of the present outstanding indebtedness of this State. .

This section originally prohibited the state, counties, townships, and municipalities from making loans or donations to any individual or individual 209

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corporation or association, except for the support of the poor or defense of the state in time of war. This section also prohibited the state from engaging in works of internal improvement and from owning stock in any association or corporation. A 1916 amendment empowered the state and counties to grant rural credit loans. A 1917 amendment (approved in 1918 and permitting the state to own and conduct proper business enterprises, to give loans to certain corporations, and to own certain corporate stock) rewrote the section, and a 1936 amendment added the final provision relating to refinancing and refunding. It also eliminated authority of the state to own stock in corporations. The South Dakota Supreme Court has stated that this section, authorizing only the state to give its credit to business enterprises, does not prohibit the legislature from authorizing municipalities to lend their credit to private parties (Meierhenry v. City of Huron, 1984). The state may own and conduct business enterprises, providing that those enterprises are for the purpose of developing resources and improving economic facilities of the state, that no money of the state is appropriated or any indebtedness incurred for the enterprise unless approved by two-thirds vote of each branch of the legislature, that the indebtedness of the state remains within the constitutional debt limitations, and that the enterprise is “proper” for the state to conduct (Matter of Advisory Opinion Concerning the Const. of HB 1255, 1990). According to the court, an agricultural processing facility could meet those requirements. However, the debt limitation requirements would have to be met. Although the enterprise would not be subject to the $100,000 debt limit of Section 2 of Article XIII, the debt incurred for the enterprise, along with all other Section 1 debt, could not exceed 0.5 percent of the assessed valuation of the property of the state. Although the state may become an owner of a business enterprise, subject to the constitutional debt limitations, this section does not permit the state to become a part owner of such a facility. The language of this section implies that the state must have full management control and ownership (Matter of Advisory Opinion Concerning the Const. of HB 1255, 1990). Nor does this section authorize the state to acquire a mere equity position in a business, since such an equity position is similar to part ownership, which is not allowed. As explained in an Attorney General Opinion, the 1936 amendment to this section, among other things, deleted the grant of authority for the state to own stock in corporations (1988 South Dakota Att’y Gen. Op. 240, 1988). Prior to the 1936 amendment, Section 1 stated as follows: For the purpose of developing the resources and improving the economic facilities of South Dakota, the state may engage in works of internal improvement, may own and conduct proper business enterprises, may loan or give its credit to, or in aid of, any association, or corporation, and may become the owner of the Stock of corporations, organized for such purposes . . .

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With respect to Section 1’s grant of authority to the state to engage in “works of internal improvement,” the court in Boe v. Foss (1956) ruled that the construction and operation of dormitory facilities did not constitute “works of internal improvement.” The court went on to describe in detail the scope and definition of this term: Works of internal improvement, as used in the constitution, means, not merely the construction or improvement of channels of trade and commerce, but any kind of public works, except those used by and for the state in performance of its governmental functions. Section 2 Maximum State Debt—Irrepealable Tax to Repay For the purpose of defraying extraordinary expenses and making public improvements, or to meet casual deficits or failure in revenue, the state may contract debts never to exceed with previous debts in the aggregate one hundred thousand dollars, and no greater indebtedness shall be incurred except for the purpose of repelling invasion, suppressing insurrection, or defending the state or the United States in war and provision shall be made by law for the payment of the interest annually, and the principal when due, by tax levied for the purpose or from other sources of revenue; which law providing for the payment of such interest and principal by such tax or otherwise shall be irrepealable until such debt is paid: provided, however, the state of South Dakota shall have the power to refund the territorial debt assumed by the state of South Dakota, by bonds of the state of South Dakota.

Other related constitutional provisions appear in Article VIII, Section 13, dealing with educational funds and municipal indebtedness limitations, and Article XIII, Section 16, dealing with works of internal improvement and municipal indebtedness limitations. An 1890 proposed amendment, which was rejected, would have increased the debt limit to $500,000. As the court has stated, there are various purposes underlying the constitutional provision limiting state debt. Those purposes are: shielding the taxpayer from the burdens of debt service, the fostering of public credit, and restraining one generation from enjoying benefits at the expense of future generations (Boe v. Foss, 1956). Unless specifically exempted, all indebtedness that the state incurs for purposes of developing resources and improving economic facilities of the state is subject to the constitutional debt limitation, even if the debt is incurred pursuant to another constitutional provision (Matter of Advisory Opinion Concerning the Const. of HB 1255, 1990). The debt limitation provisions in Section 2 do not apply to indebtedness incurred under Section 1 (Wheelon v.  South Dakota Land Settlement Board, 1921). Furthermore, the debt limitation provisions of Section 2 apply to the state and not to subdistricts that include only a small part of the state, such as a conservancy subdistrict (In re Oahe Conservancy Subdistrict, 1971).

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Much of the litigation involving this section entails the court’s definition and calculation of debt, as this term is used in this section. In an early case, the court determined that debt does not include appropriations satisfied out of current revenues or those revenues in the process of collection (In re State Warrants, 1895). As the court stated: By general law the legislature has provided for the levy of an annual tax for meeting the ordinary expenses of the state. By so providing, in a constitutional manner, for the levy of a sufficient tax, it has provided a revenue, without incurring an indebtedness therefor, within the meaning of Section 2, Article XIII of the constitution.

In State College Development Association v. Nissen (1938), the court examined a proposed contract between the State College Development Association and the Board of Regents regarding financing of the construction of the college dormitories. The question addressed by the court was whether this proposed contract would make the state incur an indebtedness in excess of the limit prescribed by Section 2. In addressing this question, the court examined the issue of what constitutes a debt within the meaning of Section 2. According to the court, the word “debt” does not include any contractually-imposed pecuniary obligation that is to be satisfied out of current revenues. In Nissen, the dormitories were to be financed out of the net revenues of those dormitories. The proposed financing contract did not impose any obligation on the state of South Dakota to levy a tax or to appropriate funds to pay any loss that may result from that contract. Thus, the court applied the rule in other jurisdictions that the pledge of revenues from a utility or other property in payment of a contract obligation does not constitute an indebtedness, within the definition of debts as used in the constitutional provisions regarding the state’s limitations as to the incurring of indebtedness. Under this so-called “special fund doctrine,” if particular bonds or obligations are secured by and payable only from the revenues from a particular utility or property, they do not constitute debts of the particular state or political subdivision. An indebtedness or liability occurs only when a governmental entity is obligated directly or indirectly to feed the special fund from general or other revenues in addition to those arising solely from the specific improvement contemplated. Because the court in Nissen found that there was no obligation on the state to pay any money other than the specified income from the dormitories, the contract did not create a Section 2 debt that in turn violated the constitutional debt-limitation provisions. In Boe v. Foss (1956), likewise involving the financing of college dormitories, the court found that under the proposed bond financing arrangement, the state was actually pledging, in payment of those bonds, resources and revenues in addition to the net income of the property to be acquired with the bond proceeds. Because of that pledge of additional funds of the state, the court found

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that a debt was incurred that would then fall under the debt limitation provisions of Section 2. Insofar as state college dormitory building bonds were payable only out of a fund derived from the net income of such buildings, the bonds did not create a state debt; but insofar as the bonds were also payable out of the net income of other dormitory buildings of such colleges, the bonds did in fact create such debt (Boe v. Foss, 1956). In finding that a debt had been created, the court in Boe v. Foss took a more critical look at the so-called special fund doctrine and examined in detail the purposes underlying the Section 2 limitations on state indebtedness. According to the court: These provisions were adopted in order to counteract the tendency of the living to obtain conveniences at the expense of unborn generations; in other words, to prevent the casting upon the shoulders of tomorrow the burdens that should be borne today. But only those laws should be held to be under the ban which have the purpose and effect of accomplishing that which these provisions are intended to prevent. No law can properly come under such ban which does not intend the actual incurring of a liability and the future levying of taxes to meet the same. If the law contemplates that the liability shall me met and cared for in a manner other than by general taxation, the mere possibility that a contingency may arise under which such liability or a part thereof shall need to be met through a general tax, at least unless it is apparent that such possibility is in fact a probability, is not enough to invalidate the law.

The court in Boe v. Foss concluded that the debt limiting provision of Section 2 did not relate only to debts for which taxes must be levied. According to the court, Section 2 foreclosed such a construction, since it directed that the provision for the repayment of indebtedness must be made by taxes levied for that purpose or from “other sources of revenue.” Consequently, according to the court, the framers of Section 2 intended to limit debts payable from income other than from the levy of a tax. As the court stated, “Practical minds would not fail to know that the ultimate incidence of any debt which consumes a public income or resource will be on the taxpayer, and that he cannot be insulated from that impact by the ingenious device of the so-called special fund.” The holding in Boe did not apply to McFarland v.  Barron (1969), where the court found that a proposed bond issuance did not create a debt within the meaning of Section 2.  Because the obligation of the state to pay rents on the proposed leases was subject to available appropriations and current revenues, the debt limitation provisions of Section 2 did not apply. This holding stemmed from the general rule that an appropriation that will be satisfied out of current revenues does not create an indebtedness. Although the leases may constitute an obligation, that obligation does not qualify as a constitutional indebtedness, since its payment is legally provided for by funds constructively in the treasury.

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In Associated General Contractors of South Dakota, Inc. v. Schreiner (1992), the court ruled that an ethanol tax credit statute that also included an appropriation to a council promoting the technical and marketing assistance to producers of certain crops did not lend or give the state’s credit to any association or corporation in violation of Section 2. The appropriations in question were not loans, and no debt was created. Section 3 State Debt as in Addition to Territorial Debt That the indebtedness of the state of South Dakota limited by § 2 of this article shall be in addition to the debt of the territory of Dakota assumed by and agreed to be paid by South Dakota.

There is no case law or commentary interpreting or applying this section. Section 4 Debt Limitations for Municipalities and Political Subdivisions The debt of any county, city, town or civil township shall never exceed five per centum upon the assessed valuation of the taxable property therein, for the year preceding that in which said indebtedness is incurred. The debt of any school district shall never exceed ten per centum upon the assessed valuation of the taxable property therein, for the year preceding that in which said indebtedness is incurred. In estimating the amount of the indebtedness which a municipality or subdivision may incur, the amount of indebtedness contracted prior to the adoption of the Constitution shall be included. Provided, that any county, municipal corporation, civil township, district, or other subdivision may incur an additional indebtedness, not exceeding ten per centum upon the assessed valuation of the taxable property therein, for the year preceding that in which said indebtedness is incurred, for the purpose of providing water and sewerage, for irrigation, domestic uses, sewerage and other purposes; and Provided, further, that in a city where the population is eight thousand or more, such city may incur an indebtedness not exceeding eight per centum upon the assessed valuation of the taxable property therein for the year next preceding that in which said indebtedness is incurred for the purpose of constructing street railways, electric lights or other lighting plants. Provided, further, that no county, municipal corporation, civil township, district or subdivision shall be included within such district or subdivision without a majority vote in favor thereof of the electors of the county, municipal corporation, civil township, district or other subdivision, as the case may be, which is proposed to be included therein, and no such debt shall ever be incurred for any of the purposes in this section provided, unless authorized by a vote in favor thereof by a majority of the electors of such county, municipal corporation, civil township, district or subdivision incurring the same.

An 1896 amendment added the second and fourth paragraphs to this section, except that sewerage was not an authorized purpose under the second paragraph. A 1902 amendment inserted the words “for the year preceding that

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in which said indebtedness is incurred” at the end of the first sentence and again in the second paragraph. It also added sewerage and other purposes as authorized purposes under the second paragraph. Finally, the 1902 amendment inserted the third paragraph. A 1954 amendment, which was identical to a proposed amendment rejected in 1950, removed school districts from the 5 percent limitation in the first sentence of the first paragraph; it also inserted the second sentence of the first paragraph. The South Dakota Supreme Court has ruled that liabilities incurred by municipalities or school districts during a fiscal year, in anticipation of revenue and within the limits of lawful tax levies, are not “debts” within the meaning of constitutional debt limits (Farrar v.  Britton Independent School District of Marshall County, 1948). In other words, the constitutional limit on indebtedness refers to an actual indebtedness for which a tax must be levied. Moreover, the court has held that a continuing contract for the furnishing of electric, water or other service to a municipality, for which the municipality agrees to pay in annual installments as the service is furnished, does not give rise to a constitutional indebtedness for the aggregate amount of the installments to become due (Robbins v. Rapid City, 1946). In Gross v. City of Bowdle (1921), the court held that bonds issued only for the purpose of funding a special assessment and paid for by funds to be collected from the special assessment and not by any general tax assessed against the property outside the special assessment district did not constitute an indebtedness within the meaning of Section 4. Similarly, in Mettet v. City of Yankton (1946), the court held that certain revenue bonds did not constitute a general obligation for Section 4 purposes, when the only source of payment of the bonds was the revenue from the operation of a bridge, which a city ordinance required be kept separate from other city funds and from which revenue of the bonds was to be paid. However, if bonds are to be payable from the general revenues of the city without limitation, then they count toward the constitutional debt limit. There have been numerous cases in which the court has explained the proper financial calculations of indebtedness. Such cases include Farrar v.  Britton Independent School District of Marshall County (1948), Ridgeland School District v. Biesmann (1946), and Lollich v. Hot Springs Independent School District (1924). In Meierhenry v. City of Huron, the court held that indebtedness created by tax incremental bonds issued by municipalities constitutes a debt subject to the constitutional debt limitations. On the other hand, where the only source of payment of interstate toll bridge bonds was the revenue from the operation of the bridge, and the revenue from that bridge was legally required to be kept separate from other city funds, those bonds did not constitute a debt within the constitutional provision limiting municipal indebtedness (Mettet v. City of Yankton, 1946). Furthermore, the issuance of bonds

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by a city only for the purpose of funding special assessments does not constitute a debt within the meaning of Section 4, since the bonds were to be paid by funds collected by special assessments and not by any general taxes that might be assessed against property outside of the assessment district (Gross v. City of Bowdle, 1921). Moreover, bonds issued for the purpose of refunding existing indebtedness are not considered in determining whether or not a city has reached its constitutional debt limit; hence, bonds issued for that purpose, even though the indebtedness in the aggregate exceeds the debt limit, are valid and do not create a new debt (National Life Insurance Co. of Montpelier, Vermont v. Mead, 1900). The amendments to this section providing that cities may incur an additional indebtedness not exceeding 10  percent on the assessed valuation of taxable property to provide water and sewerage, and an indebtedness not exceeding 8 percent on the assessed valuation to construct streets, railways, and lighting plants, were intended to except the power to incur indebtedness for those purposes from the 5-percent limitation imposed by the original provisions of Section 4 (Rice v. City of Watertown, 1938). Moreover, this permission to incur an additional indebtedness is conferred regardless of the existing indebtedness for other purposes. According to the court in Rice v. City of Watertown (1938), the 1896 and 1902 amendments to Section 4, which allowed municipalities to incur additional indebtedness of 10 percent and 8 percent for certain purposes, were intended to create an exception from the 5-percent debt limitation imposed by the original provisions of Section 4. Consequently, the resulting section contains the three independent and mutually exclusive limitations upon the indebtedness powers of cities. In Meierhenry v. City of Huron (1984), the court concluded that once bonds constituted a debt, the next issue to consider is whether Section 4 requires that an election be held to authorize the issuance of such bonds. In answering that question, the court looked to the history of Section 4. It cited the decision in Spangler v.  City of Mitchell (1915), which addressed the question of whether municipal indebtedness could ever be incurred without a vote of the electors: It will be seen that this Section, as originally adopted, constituted an absolute limitation on the powers of municipalities to incur an indebtedness for any purpose whatever in excess of five percent upon the assessed valuation of the taxable property therein for the year preceding that in which said indebtedness might be incurred, but contained no requirement that any proposed indebtedness should be submitted to a vote of the electors. The first of the two amendments, by way of provisos, authorized an additional indebtedness not exceeding ten percent for the purposes therein named; while the second amendment authorized an additional indebtedness not exceeding eight percent to be incurred by cities having a population of 8,000 or more, for the specific purposes named in that proviso. The third proviso is, in effect, nothing more than a limitation upon the exercises of the powers conferred by the two added provisos. It declares

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that: no such debt shall ever be incurred for any of the purposes in this Section provided, unless authorized by a vote in favor thereof by a majority of the electors of said county, municipality, etc. incurring the same.

Interpreting this section, the court held that it is only when the proposed indebtedness is to be incurred for water, sewerage, or for construction of streets, railways, or electric lights, in excess of the five percent limitation, that the provisions of Section 4 apply. Section 5 Irrepealable Tax to Repay Debt of Municipality or Political Subdivision Any city, county, town, school district or any other subdivision incurring indebtedness shall, at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof when due, and all laws or ordinances providing for the payment of the interest or principal of any debt shall be irrepealable until such debt be paid.

The court in Meierhenry v.  City of Huron (1984) held that the dedication of tax increments to the payment of the principal and interest on indebtedness resulting from the issuance of incremental bonds constitutes a sufficient guarantee to satisfy the constitutional requirement that a governmental body incurring indebtedness provide for the collection of an annual tax sufficient to pay the interest and principal on that debt. Section 6 Adjustment of Debts and Liabilities of Territory of Dakota In order that payment of the debts and liabilities contracted or incurred by and in behalf of the territory of Dakota may be justly and equitably provided for and made, and in pursuance of the requirements of an act of Congress approved February 22, 1889, entitled “An act to provide for the division of Dakota into two states and to enable the people of North Dakota, South Dakota, Montana and Washington to form Constitutions and state governments and to be admitted into the union on an equal footing with the original states, and to make donations of public lands to such states” the states of North Dakota and South Dakota, by proceedings of a joint commission, duly appointed under said act, the sessions whereof were held at Bismarck in said state of North Dakota, from July 16, 1889, to July 31, 1889, inclusive, have agreed to the following adjustment of the amounts of the debts and liabilities of the territory of Dakota which shall be assumed and paid by each of the states of North Dakota and South Dakota, respectively, to wit: 1. This agreement shall take effect and be in force from and after the admission into the union, as one of the United States of America, of either the state of North Dakota or the state of South Dakota. 2. The words “state of North Dakota” wherever used in this agreement, shall be taken to mean the territory of North Dakota, in case the state of South Dakota shall be admitted into the union prior to the admission into the union of the state of North Dakota; and the words “state of South

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Dakota,” wherever used in this agreement, shall be taken to mean the territory of South Dakota in case the state of North Dakota shall be admitted into the union prior to the admission into the union of the state of South Dakota. 3. The said state of North Dakota shall assume and pay all bonds issued by the territory of Dakota to provide funds for the purchase, construction, repairs or maintenance of such public institutions, grounds or buildings as are located within the boundaries of North Dakota, and shall pay all warrants issued under and by virtue of that certain act of the legislative assembly of the territory of Dakota, approved March 3, 1889, entitled an act to provide for the refunding of outstanding warrants drawn on the capitol building fund. 4. The said state of South Dakota shall assume and pay all bonds issued by the territory of Dakota to provide funds for the purchase, construction, repairs or maintenance of such public institutions, grounds or buildings as are located within the boundaries of South Dakota. 5. That is to say: The state of North Dakota shall assume and pay the following bonds and indebtedness, to wit: Bonds issued on account of the hospital for insane at Jamestown, North Dakota, the face aggregate of which is two hundred and sixty-six thousand dollars; also, bonds issued on account of the North Dakota University at Grand Forks, North Dakota, the face aggregate of which is ninety-six thousand seven hundred dollars; also, bonds issued on account of the penitentiary at Bismarck, North Dakota, the face aggregate of which is ninety-three thousand six hundred dollars; also, refunding capitol building warrants dated April 1, 1889, eighty-three thousand five hundred and seven dollars and forty-six cents.And the state of South Dakota shall assume and pay the following bonds and indebtedness, to wit: Bonds issued on account of the hospital for the insane at Yankton, South Dakota, the face aggregate of which is two hundred and ten thousand dollars; also, bonds issued on account of the school for deaf mutes, at Sioux Falls, South Dakota, the face aggregate of which is fifty-one thousand dollars; also, bonds issued on account of the university at Vermillion, South Dakota, the face aggregate of which is seventy-five thousand dollars; also, bonds issued on account of the penitentiary at Sioux Falls, South Dakota, the face aggregate of which is ninety-four thousand three hundred dollars; also, bonds issued on account of agricultural college at Brookings, South Dakota, the face aggregate of which is ninety-seven thousand five hundred dollars; also, bonds issued on account of the normal school at Madison, South Dakota, the face aggregate of which is forty-nine thousand four hundred dollars; also, bonds issued on account of school of mines at Rapid City, South Dakota, the face aggregate of which is thirty-three thousand dollars; also, bonds issued on account of the reform school at Plankinton, South Dakota, the face aggregate of which is thirty thousand dollars; also, bonds issued on account of the normal school at Spearfish, South Dakota, the face aggregate of which is twenty-five thousand dollars; also, bonds issued on account of the soldiers’ home at Hot Springs, South Dakota, the face aggregate of which is forty-five thousand dollars. 6. The states of North Dakota and South Dakota shall pay one-half each of all liabilities now existing or hereafter and prior to the taking effect of this agreement incurred, except those heretofore and hereafter incurred on account of public institutions, grounds or buildings, except as otherwise herein specifically provided.

A r t ic l e X I I I   n   219 7. The state of South Dakota shall pay to the state of North Dakota forty-six thousand five hundred dollars on account of the excess of territorial appropriations for the permanent improvement of territorial institutions which under this agreement will go to South Dakota, and in full of the undivided one-half interest of North Dakota in the territorial library and in full settlement of unbalanced accounts, and of all claims against the territory, of whatever nature, legal or equitable, arising out of the alleged erroneous or unlawful taxation of the Northern Pacific Railroad lands, and the payment of said amount shall discharge and exempt the state of South Dakota from all liability for or on account of the several matters hereinbefore referred to; nor shall either state be called upon to pay or answer to any portion of liability hereafter arising or accruing on account of transactions heretofore had, which liability would be a liability of the territory of Dakota had such territory remained in existence, and which liability shall grow out of matters connected with any public institution, grounds or buildings of the territory situated or located within the boundaries of the other state. 8. A final adjustment of accounts shall be made upon the following basis:  North Dakota shall be charged with all sums paid on account of the public institutions, grounds or buildings located within its boundaries on account of the current appropriations since March 8, 1889; and South Dakota shall be charged with all sums paid on account of public institutions, grounds or buildings located within its boundaries on the same account and during the same time. Each state shall be charged with one-half of all other expenses of the territorial government during the same time. All moneys paid into the treasury during the period from March 8, 1889, to the time of taking effect of this agreement by any county, municipality or person within the limits of the proposed state of North Dakota shall be credited to the state of North Dakota; and all sums paid into said treasury within the same time by any county, municipality or person within the limits of the proposed state of South Dakota shall be credited to the state of South Dakota; except that any and all taxes on gross earnings paid into said treasury by railroad corporations since the eighth day of March 1889, based upon earnings of years prior to 1888, under and by virtue of the act of the legislative assembly of the territory of Dakota, approved March 7, 1889, and entitled “An act providing for the levy and collection of taxes upon property of railroad companies in this territory,” being ­chapter 107 of the Session Laws of 1889 (that is, the part of such sum going to the territory) shall be equally divided between the states of North Dakota and South Dakota; and all taxes heretofore or hereafter paid into said treasury under and by virtue of the act last mentioned, based on the gross earnings of the year 1888, shall be distributed as already provided by law, except that so much thereof as goes to the territorial treasury shall be divided as follows: North Dakota shall have so (much) thereof as shall be or has been paid by railroads within the limits of the proposed state of North Dakota and South Dakota so much thereof as shall be or has been paid by railroads within the limits of the proposed state of South Dakota. Each state shall be credited also with all balances of appropriations made by the seventeenth legislative assembly of the territory of Dakota for the account of public institutions, grounds or buildings situated within its limits, remaining unexpended on March 8, 1889. If there be any indebtedness except

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the indebtedness represented by the bonds and refunding warrants hereinbefore mentioned, each state shall at the time of such final adjustment of accounts, assume its share of said indebtedness as determined by the amount paid on account of the public institutions, grounds or buildings of such state in excess of the receipts from counties, municipalities, railroad corporations or persons within the limits of said state as provided in this article; and if there should be a surplus at the time of such final adjustment, each state shall be entitled to the amounts received from counties, municipalities, railroad corporations or persons within its limits over and above the amount charged to it.

There has been no significant case law or commentary interpreting or applying this section. Section 7 Obligation of State to Pay Proportion of Territorial Debt And the state of South Dakota hereby obligates itself to pay such part of the debts and liabilities of the territory of Dakota as is declared by the foregoing agreement to be its proportion thereof, the same as if such proportion had been originally created by said state of South Dakota as its own debt or liability.

There has been no significant case law or commentary interpreting or applying this section. Section 8 Refunding Bond Issue Authorized for Territorial Debt Payment The territorial treasurer is hereby authorized and empowered to issue refunding bonds to the amount of one hundred seven thousand five hundred dollars, bearing interest not to exceed the rate of four percent per annum, for the purpose of refunding the following described indebtedness of the territory of Dakota, to wit: Seventy-seven thousand five hundred dollars, five percent bonds, dated May 1, 1883, issued for the construction of the west wing of the insane hospital at Yankton and thirty thousand dollars, six percent bonds dated May 1, 1 883, issued for permanent improvements [of the] Dakota penitentiary, at Sioux Falls, such refunding bonds, if issued, to run for not more than twenty years, and shall be executed by the Governor and treasurer of the territory, and shall be attested by the secretary under the great seal of the territory. In case such bonds are issued by the territorial treasurer as hereinbefore set forth, before the first day of October, 1889, then upon the admission of South Dakota as a state it shall assume and pay said bonds in lieu of the aforesaid territorial indebtedness.

There has been no significant case law or commentary interpreting or applying this section.

A r t ic l e X I I I   n   2 21 Section 9 Road Construction and Coal Supply by State The construction and maintenance of good roads and the supplying of coal to the people of the state from the lands belonging to the state are works of necessity and importance in which the state may engage but no expenditure of money for the same shall be made except by the vote of a two-thirds majority of the Legislature.

A 1916 amendment added this section to the constitution. Under this section, statutes that appropriate revenue or authorize the expenditure of money for highways require a two-thirds majority vote by members of both branches of the legislature (State ex rel. Mills v. Wilder, 1950). Section 10 State Cement Enterprises The manufacture, distribution and sale of cement and cement products are hereby declared to be works of public necessity and importance in which the state may engage, and suitable laws may be enacted by the Legislature to empower the state to acquire, by purchase or appropriation, all lands, easements, rights of way, tracks, structures, equipment, cars, motive power, implements, facilities, instrumentalities and material, incident or necessary to carry the provisions of this section into effect: provided, however, that no expenditure of money for the purposes enumerated in this section shall be made, except upon a vote of two-thirds of the members elect of each branch of the Legislature.

A 1918 amendment added both this section and Section 11 to the constitution. The sale of the state cement plant was not prohibited by this section, even though the Section states that the manufacture and sale of cement products are works of public necessity (Breck v. Janklow, 2001). Section 11 State Pledge to Fund Cement Enterprises The state may pledge such cement plants and all of the accessories thereto, and may pledge the credit of the state, to provide funds for the purposes enumerated in § 10 of this article, any provision in this Constitution to the contrary notwithstanding.

The state-owned cement plant was sold in 2001. This sale was approved in a special session of the Legislature. Amendment A was approved in a special election held on April 10, 2001; it authorized the creation of a trust fund for the proceeds of the sale. Section 12 State Electric Power Enterprises The manufacture, distribution and sale of electric current for heating, lighting and power purposes are hereby declared to be works of public necessity and

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importance in which the state may engage, and suitable laws may be enacted by the Legislature to empower the state to acquire, by purchase or appropriation all lands, easements, rights of way, tracks, structures, equipment, cars, motive power, implements, facilities, instrumentalities and material incident or necessary to the acquisition, ownership, control, development and operation of the water powers of this state, and to carry this provision into effect: provided, however, that no expenditure of money for the purposes enumerated in this section shall be made except by a vote of two-thirds of the members elect of each branch of the Legislature.

Both this section and Section 13 of Article XIII were added by a 1918 amendment. According to a 1920 South Dakota Supreme Court opinion, both this section and Section 13 were added so that the state could engage in an enterprise of this kind and pledge its credit without being limited by the other provisions of the constitution relating to works of internal improvement (In re Opinion of the Judges, 1971). This had to be its special purpose, since the state by reason of Section 1 already had the power generally to engage in such enterprises. And because the enterprise authorized by Section 12 is a work of internal improvement, the debt limit found in Article XIII, Section 2 does not apply to Section 12. Moreover, according to the court, the provisions of Section 12 were intended to be excepted from the operation of other sections of the constitution, including the debt limit of 0.5 percent of the assessed valuation of all property in the state. Specifically, according to the court, the provisions of Article XI, Section 1 do not apply to the operation of Article XIII, Section 12. Section 13 State Pledge to Fund Electric Power Enterprises The state may pledge such plants and all of the accessories thereto, and may pledge the credit of the state, to provide funds for the purposes enumerated in § 12 of this article, any provision in this Constitution to the contrary notwithstanding.

The adoption of Section 13 set apart this form of internal improvement from the provisions regulating internal improvements generally. Section 14 State Coal Mining Enterprises The mining, distribution and sale of coal are hereby declared to be works of public necessity and importance in which the state may engage, and the Legislature may enact suitable laws to carry this provision into effect and to empower the state to acquire, by purchase or appropriation, all lands, structures, easements, tracks, rights of way, equipment, cars, motive power, and all other facilities, implements, instrumentalities, and materials necessary or incidental to the acquisition, mining, manufacturing and distribution of coal for fuel purposes:  provided, however, that no expenditure of money for the purposes enumerated in this section shall be made except upon a vote of two-thirds of the members elect of each branch of the Legislature.

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This section, along with Section 15 of this article, was added to the constitution in November of 1918. This provision, forbidding indebtedness in the absence of appropriation, is a limitation on the power of officers, departments, and agencies of the state other than the legislature, and it does not prevent the legislature from incurring indebtedness to pay for services rendered to the state by a contractor stripping coal land under a contract with the Coal Mining Commission (Brams v. State, 1935). Section 15 State Pledge to Fund Coal Enterprises The state may pledge such plants and all of the accessories thereto, as well as the credit of this state, to provide funds for the purposes enumerated in § 14 of this article, any provision in this Constitution to the contrary notwithstanding.

Section 16 Works of Internal Improvement—State Indebtedness The state may engage in works of internal improvement, any provision in this Constitution, or limitation in § 2 of this article, to the contrary notwithstanding. The indebtedness of the state for the purposes contained in this section shall never exceed one-half of one percent of the assessed valuation of all property in this state and no such indebtedness shall be incurred nor money expended, except upon a two-thirds vote of the members elect in each branch of the Legislature.

This section was added to the constitution in 1918. Section 17 Home Loans by State—Debt Limitation Inapplicable The state may establish and maintain a system of credits for assisting in the building of homes by the people of the state, and therefor may loan money and extend credit to the people of the state upon real estate security in such manner and upon such terms and conditions as may be prescribed by general law. The limitations and provisions regarding the incurring of indebtedness elsewhere found in the Constitution shall not apply to this section, but the Legislature shall, at the time of incurring any indebtedness hereunder, provide for discharging same.

A 1920 amendment to the constitution added this section to Article XIII. Section 18 Compensation of Military and War Relief Personnel—Maximum Indebtedness The Legislature shall be authorized to provide by law for compensating honorably discharged soldiers, sailors, marines, and others, who have served

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with the armed forces of the United States, or who have engaged in war relief work in the World’s War, or other wars of the United States, including former American citizens, who served in allied armies against the central powers in the World’s War and who have been honorably discharged and repatriated; such compensation not to exceed the sum of fifteen dollars per month for the period of such service. For this purpose the Legislature may use the credit of the state, and any indebtedness created for this purpose shall not be a part of the indebtedness authorized or limited by other provisions of the Constitution; provided, that the amount of all indebtedness created by the state for the purposes specified in this section shall not exceed six million dollars.

A 1920 amendment added this section to Article XIII. Section 19 Bonus Paid to Veterans and Deceased Veterans’ Dependents 1. The Legislature shall be authorized to provide by law for compensating and paying a bonus in money to veterans and to dependents of deceased veterans, who were legal residents of the state of South Dakota for a period of not less than six months immediately preceding entry into the armed forces of the United States and who have served for ninety or more days in the armed forces of the United States between the period beginning December 7, 1941 and ending September 2, 1945 and who are still in the armed forces or were discharged therefrom under conditions other than dishonorable. Such bonus to be paid in cash, at the rate of fifty cents per day for each day of service in the armed forces within continental United States and at the rate of seventy-five cents per day for each day of service in the armed forces outside of continental United States, provided that any such person who served wholly within continental United States shall be entitled to receive not to exceed a bonus or total sum of five hundred dollars, and any such person who has served wholly outside of continental United States, or partly within and partly without, shall be entitled to receive not to exceed a bonus payment in the total sum of six hundred fifty dollars; such bonus to be paid on or before the thirty-first day of December 1950. For this purpose the Legislature may use credit of the state and any indebtedness created for this purpose shall not be a part of the indebtedness authorized or limited by other provisions of the Constitution; provided that the amount of indebtedness created by the state for the purpose specified in this section shall not exceed thirty million dollars. If upon computation the amount of thirty million dollars shall be inadequate to make the specified payments as stated in this section, the Legislature shall have the power to apportion the amount. 2. The term “armed forces” shall mean and include the following: United States Army, Army of the United States, United States Navy, United States Naval Reserves, United States Marine Corps, United States Marine Corps Reserve, United States Coast Guard, United States Coast Guard Reserve which shall be construed to include the United States Guard Temporary Reserve, Women’s Army Corps, United States Navy Women’s Reserve, United States Marine Corps Women’s Reserve, United States Coast Guard Women’s Reserve, Army Nurse Corps and Navy Nurse Corps.

A 1947 proposal, which was approved in November of 1948, added this section to Article XIII.

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Pursuant to this constitutional provision, the state legislature later created the Veterans Bonus Board and also provided for state veterans’ bonuses (Bandy v. Mickelson, 1950). Section 20 Trust Fund Created From Proceeds of State Cement Enterprise Sales—Investment—Annual Appropriation The net proceeds derived from the sale of state cement enterprises shall be deposited by the South Dakota Cement Commission in a trust fund hereby created to benefit the citizens of South Dakota. The South Dakota Investment Council or its successor shall invest the trust fund in stocks, bonds, mutual funds, and other financial instruments as provided by law.

This section, proposed in 2000, was approved by the voters on April 10, 2001. An amendment proposed in 2010, designated as Constitutional Amendment L, was rejected by the voters on November 2, 2010. Amendment L would have changed the annual distribution amounts made from the cement plant trust fund, which holds the proceeds from the sale of the state cement plant, to the state’s general fund. The proposed amendment reduced the current $12 million mandatory annual transfer to $8 million over a four-year period. Thereafter, the mandatory transfer would be eliminated and the legislature could transfer up to 4 percent of the trust fund to the state’s general fund, as long as the transfers do not cause the trust fund to fall below its original principal amount. The amendment also eliminated a distribution from the trust fund to support education. Proponents of Amendment L argued that it would keep the cement plant trust fund viable for the long term and avoid the potential self destruction that could eventually exhaust its value. When the cement plant trust fund was created, the constitution mandated a $12 million transfer to the state general fund each year, as well as a 5 percent distribution of funds, if the market value of the fund had growth by a sufficient amount. But when the stock market declined in 2008–2009, the market value of the trust fund diminished to a value less than when the trust was created, and the mandatory $12  million annual transfer reduced the fund even further. These two events, argued the amendment’s proponents, decreased the fund by nearly $103  million over a period of 21 months. Furthermore, if another sustained period of poor market performance occurred, the mandatory $12 million might exhaust the value of the fund. In the general election of November 6, 2012, voters approved an amendment striking out the last sentence of this section, which read: “Each fiscal year beginning in fiscal year 2001, a transfer of twelve million dollars shall be made from the trust fund to the state general fund as provided by law.”

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Section 21 Transfers from Trust Fund to General Fund in Support of Education The Legislature shall transfer from the trust fund to the state general fund four percent of the lesser of the average market value of the trust fund determined by adding the market value of the trust fund at the end of the sixteen most recent calendar quarters as of December thirty-first of that year and dividing the sum by sixteen, or the market value of the trust fund at the end of that calendar year for the support of education in South Dakota. The transfer shall be made prior to June thirtieth of the subsequent calendar year.

This section was also approved by the voters on April 10, 2001. Constitutional Amendment L, which would have rewritten the section, was rejected by the voters on November 2, 2010. An amendment passed by the voters on November 6, 2012 rewrote this section. The old section read: “Except as provided in Article XIII, section 20 of the Constitution of the State of South Dakota, the original principal of the trust fund shall forever remain inviolate. However, the Legislature shall, by appropriation, make distributions from the difference between the twelve million dollar annual general fund transfer and five percent of the market value of the trust fund for the support of education, but not for the replacement of state aid to general education or special education, if the increase in the market value of the trust fund in that fiscal year was sufficient to maintain the original principal of the trust fund after such distributions. Beginning with fiscal year 2006, the market value of the trust fund shall be determined by adding the market value of the trust fund at the end of the sixteen most recent calendar quarters, and dividing that sum by sixteen.”

According to an attorney general opinion, distributions must be based on the market value of the trust fund as of the close of markets on June 30 of each fiscal year and are not impacted by an increase or decrease in the value as of the time of appropriation (Op. Att’y Gen. 04-02, 2004).

Article XIV State Institutions

Section 1 Charitable and Penal Institutions The charitable and penal institutions of the State of South Dakota shall consist of a penitentiary, a hospital for the mentally ill, a school for the developmentally disabled, and a reform school for juveniles.

A 1944 amendment removed the School for the Deaf and the School for the Blind from the provisions in this section. A 1988 amendment changed the term “insane hospital” to “a hospital for the mentally ill.” It also changed “a school for the feeble minded” to “a school for the developmentally disabled.” Finally, the 1988 amendment added the last two words to this section. Pursuant to the power granted by this section, the state legislature invested the state Board of Charities and Corrections with all powers necessary for the proper management of penal institutions under its control (State ex rel. Collins v. Halladay, 1934). Section 2 Government of Charitable and Penal Institutions The state institutions provided for in the preceding section shall be governed under such rules and restrictions as the Legislature shall provide.

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Defeated in 1914, a proposed amendment would have substituted a three-member board of control for the Board of Charities and Corrections and would have placed the Soldiers’ Home under the board as well. A 1988 amendment rewrote this section. The former section read as follows:  “The state institutions provided for in the preceding section shall be under the control of the State Board of Charities and Corrections, governed 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.” Section 3 Board to Govern State Educational Institutions The state university, the agriculture college, the school of mines and technology, the normal schools, a school for the deaf, a school for the blind, 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.

During the territorial period, the public schools were administered by a board of education. But after statehood, control was given to a board of regents (State ex rel. Prchal v. Dailey, 1931). In its original form, this section provided for a nine-member board, specifically designated the Regents of Education, with three members to be appointed every second year for terms of six years. This section provided that the regents, in connection with the faculty of each institution, should fix the course of study in that institution. The section also provided for the legislature to determine the compensation of the regents. An 1896 amendment reduced the size of the board to five, but gave the legislature authority to increase it to nine; it also eliminated the specific designation as Regents of Education, and repealed the provision as to terms and compensation of members and control of the course of study. A 1944 amendment made the School of Mines and Technology, the School for the Deaf, and the School for the Blind subject to this section. Under this section, members of the Board of Regents hold their office for six years, with three members retiring every second year. Since there is no provision for their holding over, the term of a regent is absolutely fixed at six years. When the term expires, unless a successor has been appointed, the office becomes vacant (State ex rel. Wood v. Sheldon, 1896). The Board of Regents’ power over state educational institutions does not include the power of the purse, the power to change the character of the institutions, the power to create or establish schools, nor the power to determine educational policy of South Dakota (Kanaly v. State By and Through Janklow,

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1985). Even though this section gives the Board of Regents control over the state educational institutions, it also authorizes the legislature to restrict that control. This section does not grant the Board of Regents political autonomy (South Dakota Board of Regents v. Meierhenry, 1984). Thus, the Board of Regents is not a fourth branch of government, independent of legislative policies. As the court has stated: Though it be conceded the regents have very broad powers in respect to the curricula of the schools under their control, it is self-evident they cannot by the exercise of that power change their character. (State ex rel. Prchal v. Dailey, 1931)

Although the Board of Regents’ control over all institutions of higher learning is subject to constitutionally-authorized legislative rules and restrictions, these rules and restrictions must stop short of removing all power (Kanaly v. State By and Through Janklow, 1985). The legislature does not have unbridled power to regulate the Board of Regents; its constitutionally-authorized rules and restrictions must stop short of removing all power from the Board of Regents (South Dakota Board of Regents v. Meierhenry, 1984). In prescribing curricula for schools, the regents have wide discretion, subject to little if any control (State ex rel. Bryant v. Dolan, 1933). However, the Board of Regents does not have power to authorize curricula foreign to the purposes for which various schools were established in the enactments creating them (State ex rel. Prchal v. Dailey, 1931). The Board of Regents cannot change the character and purpose of an institution—and the character is largely determined by a school’s curriculum (Id.). Illustrative of the fact that the legislature does have power to restrict the power or control of the Board of Regents, the South Dakota Supreme Court found that a statute permitting the Department of Labor to hear and decide grievance matters involving salaries, qualifications, and discharge of employees at institutions under the Board of Regents’ control is a valid restriction on the authority of the Board of Regents (South Dakota Board of Regents v. Meierhenry, 1984). On the other hand, a tenure policy at a state college, under which the Board of Regents could not remove a faculty member for any reason or cause without prior action or approval of a President and Tenure Committee, constituted an unlawful encroachment upon the board’s constitutional and statutory power of control over the state college (Worzella v. Board of Regents, 1958). Section 4 [Repealed]

This section, relating to the trustees of institutions, was repealed in November of 1896. The former section read: 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

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five years, one member retiring annually. The trustees of each institution shall appoint the faculty of the same, and shall provide for the current management of the institution, but all appointments and removals must have the approval of the Regents to be valid. The trustees of the several institutions shall receive no compensation for their services, but they shall be reimbursed for all expenses incurred in the discharge of their duties, upon presenting an itemized account of the same to the proper officer. Board of Trustees at its first meeting shall decide by lot the order in which members shall retire from office. Section 5 Mining and Metallurgy to Be Taught 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 XV Militia

A proposed repeal of this article was rejected by the voters on November 5, 1974. A  similar repeal was also rejected on November 2, 1976. With a few exceptions, the basic substance of Sections 2 through 5 of the present Article XV would have been incorporated into Section 15 of a new Article III. The substance of present Sections 1, 6, and 7 of Article XV would have been repealed outright. Related provisions in the federal Constitution are found in the Second and Third Amendments. Section 1 Composition of Militia The militia of the state of South Dakota shall consist of all able-bodied male persons residing in the state, between the ages of eighteen and forty-five years, except such persons as now are, or hereafter may be, exempted by the laws of the United States or of this state.

As stated above, the proposed repeal of this section was rejected on November 5, 1974, and again on November 2, 1976. This same statement can be made of all the following sections in this article.

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Section 2 Legislative Provisions for Militia The Legislature shall provide by law for the enrollment, uniforming, equipment and discipline of the militia and the establishment of volunteer and such other organizations or both, as may be deemed necessary for the protection of the state, the preservation of order and the efficiency and good of the service.

Section 3 Conformity to Federal Regulations The Legislature in providing for the organization of the militia shall conform, as nearly as practicable, to the regulations for the government of the armies of the United States.

Section 4 Commissions of Officers of Militia All militia officers shall be commissioned by the Governor, and may hold their commissions for such period of time as the Legislature may provide, subject to removal by the Governor for cause, to be first ascertained by a court-martial pursuant to law.

Section 5 Militia Privileged from Arrest The militia shall in cases except treason, felony or breach of the peace, be privileged from arrest during their attendance at muster and elections and in going to and returning from the same.

Section 6 Safekeeping of Military Records and Relics All military records, banners and relics of the state, except when in lawful use, shall be preserved in the office of the adjutant general as an enduring memorial of the patriotism and valor of South Dakota; and it shall be the duty of the Legislature to provide by law for the safekeeping of the same.

Section 7 Conscientious Objectors No person having conscientious scruples against bearing arms shall be compelled to do military duty in time of peace.

Article XVI Impeachment and Removal from Office

There have been two proposals to repeal this article. The first was rejected by the voters on November 5, 1974, and the second was rejected on November 2, 1976. Section 1 Power of Impeachment in House—Majority Required The house of representatives shall have the sole power of impeachment. The concurrence of a majority of all members elected shall be necessary to an impeachment.

Both the 1974 and 1976 proposals to repeal this section would have incorporated similar provisions in Section 13 of Article III. Section 2 Trial of Impeachments—Presiding Officer All impeachments shall be tried by the senate. When sitting for that purpose the senators shall be upon oath or affirmation to do justice according to law and evidence. No person shall be convicted without the concurrence of two-thirds of the members elected. When the Governor or lieutenant governor is on trial the presiding judge of the Supreme Court shall preside.

Similar to the 1974 and 1976 proposals to repeal Section 1, the proposals to repeal Section 2 would have incorporated similar provisions in a new Section 233

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13 of Article III, with the exception that there would have been no requirement that the chief justice preside at a trial of the lieutenant governor and no requirement to put senators on oath. Section 3 Officers Subject to Impeachment—Grounds—Removal from Office— Criminal Prosecution The Governor and other state and judicial officers, except county judges, justices of the peace and police magistrates, shall be liable to impeachment for drunkenness, crimes, corrupt conduct, or malfeasance or misdemeanor in office, but judgment in such cases shall not extend further than to removal from office and disqualification to hold any office of trust or profit under the state. The person accused whether convicted or acquitted shall nevertheless be liable to indictment, trial, judgment and punishment according to law.

The 1974 and 1976 proposals to repeal this section would have incorporated in a new Section 13 of Article III certain provisions authorizing the legislature to determine the manner, procedure, and causes for impeachment. Also to be included in that new Section 13 of Article III would have been provisions similar to those contained in the present Section 3, limiting the effect of a judgment on impeachment and permitting further prosecution. As the supreme court held in an early case, this section does not prohibit a governor from removing at his pleasure the insurance commissioner, since Sections 3 and 4 of Article XVI apply only to the officers named in the constitution (State ex rel. Ayers v. Kipp, 1898). Section 4 Removals of Officers Not Subject to Impeachment All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance or crime or misdemeanor in office, or for drunkenness or gross incompetency, in such manner as may be provided by law.

Both the 1974 and 1976 proposals to repeal this section would have incorporated into a new Section 13 of Article III a sentence providing: Other proceedings for removal from public office may be provided by law or this constitution.

According to the South Dakota Supreme Court, the power of the governor to remove state officers may be exercised only for the causes specified in the constitution and relevant statutes (Craig v. Jensen, 1938). However, when reviewing a governor’s removal of a state officer for cause, the supreme court should not substitute its judgment for that of the governor and should sustain the governor’s action if there is any competent evidence tending to support that action (Craig v. Jensen, 1938).

A r t ic l e X V I   n   2 3 5 Section 5 Suspension of Duties Between Impeachment and Acquittal No officer shall exercise the duties of his office after he shall have been impeached and before his acquittal.

The 1974 and 1976 proposals to repeal this section were rejected by the voters in a general election. Section 6 Lieutenant Governor Not to Try Governor On trial of an impeachment against the Governor the lieutenant governor shall not act as a member of the court.

The 1974 and 1976 proposals to repeal this section were rejected by the voters in a general election. Section 7 Service of Copy of Impeachment Before Trial Required No person shall be tried on impeachment before he shall have been served with a copy thereof at least twenty days previous to the day set for trial.

The 1974 and 1976 proposals to repeal this section were rejected by the voters in a general election. Section 8 Impeachment Twice for Same Offense Prohibited No person shall be liable to impeachment twice for the same offense.

The 1974 and 1976 proposals to repeal this section were rejected by the voters in a general election.

Article XVII Corporations

Section 1 Special Corporation Laws Prohibited—State-Controlled Corporations Excepted No corporation shall be created or have its charter extended, changed or amended by special laws, except those for charitable, educational, penal or reformatory purposes, which are to be and remain under the patronage and control of the state; but the Legislature shall provide, by general laws, for the organization of all corporations hereafter to be created.

Proposed amendments to Sections 1, 5, and 8 were defeated on November 6, 2012. The court has ruled that this section applies to private corporations and not to municipal corporations invested with the power of eminent domain, such as the creation of a conservancy sub-district (In re Oahe Conservancy Sub-District, 1971). It should also be noted that this section exempts corporations created for charitable, educational, penal, or reformatory purposes. Section 2 Invalidation of Charters Without Bona Fide Organization and Business All existing charters, or grants of special or exclusive privileges under which a bona fide organization shall not have taken place and business been commenced in good faith at the time this Constitution takes effect, shall thereafter have no validity.

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This section has not been the subject of any significant commentary or case law. Section 3 Laws for Benefit of Corporation as Conditioned on Compliance with Constitutional Provision The Legislature shall not remit the forfeiture of the charter of any corporation now existing nor alter or amend the same nor pass any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution.

This section has not been the subject of any significant commentary or case law. Section 4 Corporations Subject to Eminent Domain—Police Power The exercise of the right of eminent domain shall never be abridged or so construed as to prevent the Legislature from taking the property and franchises of incorporated companies and subjecting them to public use, the same as the property of individuals; and the exercise of the police power of the state shall never be abridged or so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals or the general well-being of the state.

A repeal of this section was proposed in 1975 but rejected on November 2, 1976. As the South Dakota Supreme Court has ruled, this section and the state police power created under it cannot be minimized or restrained by a municipal exercise of police power. For instance, where a city exercised its police power to impose certain conditions on the provision of telephone service, such conditions are subject to the state’s police power under the section, which in turn allowed the state to impose conditions which deviate from the terms and conditions specified in the telephone company’s franchise with the municipality (City of Mitchell v.  Board of Railroad Commissioners, 1921). Section 5 Casting of Votes for Directors or Managers In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer.

A proposed repeal of this section was rejected by the voters on November 4, 2008. This section has not been the subject of any significant commentary or case law.

A r t ic l e X V I I   n   2 39 Section 6 Place of Business and Authorized Agent Required of Foreign Corporation No foreign corporation shall do any business in this state without having one or more known places of business and an authorized agent or agents in the same upon whom process may be served.

This section states that no foreign corporation shall do business in the State of South Dakota without having one or more known places of business, as well as an authorized agent upon whom process may be served. However, this section does not prohibit a foreign corporation that has not complied with the terms therein from doing business in the state to such an extent as to make its contracts void (Wright v. Lee, 1892). This section was not intended as a prohibition upon foreign corporations to make lawful contracts in the state, to the extent that such contracts could be declared void by the courts, but was merely intended to furnish the means by which citizens could procure personal judgments against those corporations and to bring such corporations within the jurisdiction of the courts of the state. Section 7 Business to Be Expressed in Charter—Real Estate Restricted No corporation shall engage in any business other than that expressly authorized in its charter, nor shall it take or hold any real estate except such as may be necessary and proper for its legitimate business.

According to the South Dakota Supreme Court, Section 7 constitutes the only limitations on the amount of property that a corporation may hold (Jordheim v. Bottum, 1957). Consequently, as the court ruled, the failure of a charitable corporation to set forth in its articles of incorporation the amount of property it could hold did not make the corporation incapable of taking bequests, thus making any bequests to that corporation void. Section 8 Indebtedness Increase No corporation shall issue stocks or bonds except for money, labor done, or money or property actually received; and all fictitious increase of stock or indebtedness shall be void. The stock and indebtedness of corporations shall not be increased except in pursuance of general law, nor without the consent of the persons holding the larger amount in value of the stock first obtained, at a meeting to be held after sixty days’ notice given in pursuance of law.

A proposed repeal of this section was rejected by the voters on November 4, 2008. As the court has interpreted this section, a promissory note qualifies as property within the meaning of Section 8 (Schiller Piano Co. v. Hyde, 1917).

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Thus, the acceptance of a promissory note that is equal to the value of the corporate stock issued does not violate this section. However, a promissory note taken in exchange for the issuance of corporate stock may violate Section 8 if the stock issued or the indebtedness occurred is for less than full consideration. But in general, the payment of stock subscriptions need not be in cash; they may be in whatever form desired or bargained for, as long as the payment represents to the corporation a fair and equivalent compensation to the amount subscribed. In Golden v. Oahe Enterprises, Inc. (1980), the court found that Section 8 was violated when the stock in one company traded for stock in another was grossly less than the value of that stock in the other. The court found that the valuation of the stock of the first company was substantially based on future growth and profit, and that Section 8 of the South Dakota Constitution prohibits the use of future or potential value for purposes of valuing property exchanged for corporate stock, since value based on future potential is speculative and arbitrary. Moreover, a statutory authorization for the issuance of stock in exchange for property does not permit such issuance when the property is overvalued or is worth substantially less than the par value of the stock. The court has also ruled that where a corporation issues stock to directors for services to be performed at a later time, such an issuance is void, since the stock was not issued for “labor done” (Thompson v.  Commonwealth Finance Corp., 1922). Services to be performed at some point in the future do not qualify as “labor done,” as required by this section. Therefore, because no consideration moved from the recipient to the issuer, the shares of stock were void in the hands of the recipient. Section 9 Legislature’s Power to Alter, Revise, or Annul Corporate Charters— Creation, Renewal, or Extension The Legislature shall have the power to alter, revise or annul any charter of any corporation now existing and revocable at the taking effect of this Constitution, or any that may be created, whenever in their opinion it may be injurious to the citizens of this state, in such a manner, however, that no injustice shall be done to the incorporators. No law hereafter enacted shall create, renew or extend the charter of more than one corporation.

Because of this section, the legislature has the power to annul any corporate charter without causing an unconstitutional impairment of contract (State ex rel. Dunker v. Spink Hutterian Brethren, 1958). Section 10 Local Consent Required for Grant of Street Railroad Right No law shall be passed by the Legislature granting the right to construct and operate a street railroad within any city, town or incorporated village, without

A r t ic l e X V I I   n   2 41 requiring the consent of the local authorities having the control of the street or highway proposed to be occupied by such street railroad.

There has been no significant commentary or case law on this section. Section 11 Construction and Maintenance of Telegraph Lines—Controlling Interest in Competing Company Prohibited Any association or corporation organized for the purpose, or any individual, shall have the right to construct and maintain lines of telegraph in this state and to connect the same with other lines; and the Legislature shall by general law of uniform operation provide reasonable regulations to give full effect to this section. No telegraph company shall consolidate with or hold a controlling interest in the stock or bonds of any other telegraph company owning a competing line, or acquire by purchase or otherwise, any other competing line of telegraph.

There has been no significant commentary or case law on this section. Section 12 Railroad Corporations Every railroad corporation organized or doing business in this state under the laws or authority thereof shall have and maintain a public office or place in this state for the transaction of its business, where transfers of its stock shall be made, and in which shall be kept for public inspection books in which shall be recorded the amount of capital stock subscribed, and by whom; the names of the owners of its stock, and the amount owned by them respectively; the amount of stock paid in, and by whom; the transfers of said stock; the amount of its assets and liabilities; and the names and place of residence of its officers. The directors of every railroad corporation shall annually make a report, under oath, to the auditor of public accounts or some officer or officers to be designated by law, of all their acts and doings, which report shall include such matters relating to railroads as may be prescribed by law, and the Legislature shall pass laws enforcing by suitable penalties the provisions of this section.

There has been no significant commentary or case law on this section. Section 13 Movable Property of Railroad Corporation Considered Personalty— Execution and Sale The rolling stock, and all other movable property belonging to any railroad company or corporation in this state shall be considered personal property, and shall be liable to execution and sale in the same manner as the personal property of individuals, and the Legislature shall pass no laws exempting such property from execution and sale.

There has been no significant commentary or case law on this section.

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Section 14 Consolidation of Railroad Lines—Forfeiture of Charter for Evasion of Provisions No railroad corporation shall consolidate its stock, property or franchises with any other railroad corporation owning a parallel or competing line; and in no case shall any consolidation take place except upon public notice given out, at least sixty days to all stockholders, in such manner as may be provided by law. Any attempt to evade the provisions of this section, by any railroad corporation, by lease or otherwise, shall work a forfeiture of its charter.

There has been no significant commentary or case law on this section. Section 15 Railways and Rail Companies Declared Public Highways and Common Carriers—Regulation of Rates Railways heretofore constructed or that may hereafter be constructed, in this state are hereby declared public highways, and all railroad and transportation companies are declared to be common carriers and subject to legislative control; and the Legislature shall have power to enact laws regulating and controlling the rates of charges for the transportation of passengers and freight as such common carriers from one point to another in this state.

This section is closely related to the following Section 16 and should be read accordingly. This section, declaring railroads to be “public highways,” was intended to give the state legislature the power to control railroad development, not to permit the legislature to treat railroads as highways that in turn could be financed pursuant to constitutional provisions requiring proceeds from any excise tax on gasoline or other liquid motor fuel to be used exclusively for highway construction and supervision (South Dakota Auto Club, Inc. v. Volk, 1981). Because the safety of railroad crossings is a matter of statewide concern that should not be left to uncoordinated regulations by various individual municipalities, the safety of railroad crossings requires uniformity of state regulation (Northwestern Bell Telephone Co. v.  Chicago & Northwestern Transportation Co., 1976). Consequently, as the court has ruled under this section and various state statutes, the question of safety of railroad crossings is one within the jurisdiction of the Public Utilities Commission. With respect to the right to cross other railroads, the right of the public is superior to the interests or rights of any particular railroad company. Consequently, the public has a right to demand the construction of railroad tracks across the lines of other railway companies, so long as the rights of the companies crossed are not materially and unlawfully impaired (Great Northern Railway Co. v.  Chicago, St. Paul, Minneapolis and Omaha Railway Co., 1959). Every railroad company in the state acquires its rights and privileges on the condition that its tracks may be crossed by other railroad

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companies. As a result, the rights of way of railway companies are subject to the right of the public to have other railroads construct lines crossing their rights of way. Section 16 Right to Construct and Operate Railroad—Passengers, Tonnage, and Cars Any association or corporation organized for the purpose shall have the right to construct and operate a railroad between any points within this state, and to connect at the state line with railroads of other states. Every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad, and shall receive and transport each the other’s passengers, tonnage and cars, loaded or empty, without delay or discrimination.

This section has been implemented by a statutory scheme, under which every railroad company within the state has the power to intersect and join its railroad lines with any other railroad lines, along with the necessary turnouts, sidings, and switches. However, if the two railroads cannot agree upon the amount of compensation to be made to the railroad whose line is being intersected or joined, nor the details of such crossings and connections, then those terms and conditions shall be determined by the Public Utilities Commission (Great Northern Railway Co. v.  Chicago, St. Paul, Minneapolis and Omaha Railway Co., 1959). A showing of public necessity is not a required prelude to the right of one railroad to cross another. Although the Public Utilities Commission can determine the point of crossing, the manner of crossing, and the compensation to be made for that crossing, whenever the two railroads cannot agree on those terms, the commission is not empowered to inquire into or determine “whether” the crossing should be made, since this issue of public necessity has already been predetermined by the legislature (Id.). Even though the crossing of one railroad by another does impose a burden upon the road crossed, it is a burden that every railroad in the state consents to and is obligated to assume. Every railway company acquires its franchise rights and privileges upon the condition that its tracks may be crossed by the tracks of other railway companies. As the court has explained: Rights of way are acquired subject to the right of the public to have other roads, and whenever it is necessary for one railway company in the construction of its line to cross the right-of-way of another company, the right to cross that company’s line, subject to certain conditions hereafter referred to, always exists. This right is based on public interest and necessity. The rights of the public are superior to the interests of any particular railroad company, and the public have a right to determine the construction of railroads across the lines of other railway companies so long as the rights of the companies crossed are not materially and unlawfully impaired. The right which any particular company acquires to

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its line and right-of-way is not, in this sense, exclusive; it is taken subject to the exercise of the right of eminent domain in favor of the public or public corporation. (Id. at 443) Section 17 Rate Discrimination Prevention The Legislature shall pass laws to correct abuses and prevent discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this state, and enforce such laws by adequate penalties, to the extent, if necessary for that purpose, of forfeiture of their property and franchises.

This section has not been the subject of any significant commentary or case law. Section 18 Compensation for Private Property Taken for Public Use—Assessment of Damages Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction. The Legislature is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporation or individuals made by viewers or otherwise; and the amount of such damages in all cases of appeal shall, on the demand of either party, be determined by a jury as in other civil cases.

A repeal of this section was rejected by the voters on November 2, 1976. This section should also be read in light of the eminent domain provisions in Article VI of the South Dakota Constitution. As the South Dakota Supreme Court has applied this section, the condemning authority gains no right to possession of the property until it pays the full amount of condemnation judgment and costs (Lewis & Clark Rural Water System, Inc. v. Seeba, 2006). Section 19 Corporations Defined The term “corporations,” as used in this article, shall be construed to include all joint stock companies or associations having any of the powers or privileges of corporations not possessed by individuals or partnerships.

A repeal of this section proposed in 2008 was rejected by the voters on November 4, 2008. The South Dakota Constitution requires the payment of money, property, or labor for issuance of corporate stock and bonds; prohibits the increase of corporate stock and debt without consent of stockholders holding a larger

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value of stock first obtained; and protects cumulative voting rights of stockholders. Constitutional Amendment H would have repealed these provisions and permitted the Legislature to enact a law allowing a corporation to restrict cumulative voting and to issue corporate stock for any consideration determined to be adequate by its board of directors. Amendment H stemmed from a review of the Corporation Articles of the Constitution by the State Bar of South Dakota. It was part of an attempt to update South Dakota’s corporate laws—an attempt that began with the adoption of an updated Business Corporation Act in 2005. Several provisions of this updated act could not be adopted in South Dakota because of a conflict with the constitution. Amendment H would have allowed those provisions to become law and, according to advocates of Amendment H, helped South Dakota remain competitive in attracting economic development. Section 20 Monopolies and Trusts Prohibited—Combinations in Restraint of Trade—Legislative Powers Monopolies and trusts shall never be allowed in this state and no incorporated company, co-partnership or association of persons in this state shall directly or indirectly combine or make any contract with any incorporated company, foreign or domestic, through their stockholders or the trustees or assigns of such stockholders, or with any co-partnership or association of persons, or in any manner whatever to fix the prices, limit the production or regulate the transportation of any product or commodity so as to prevent competition in such prices, production or transportation or to establish excessive prices therefor. The Legislature shall pass laws for the enforcement of this section by adequate penalties and in the case of incorporated companies, if necessary for that purpose may, as a penalty, declare a forfeiture of their franchises.

This section was added to the constitution in November of 1896. Related to this section is federal case law on antitrust and restraint of trade. According to the South Dakota Supreme Court, a monopoly as prohibited by Section 20 exists only where all or so nearly all of a product or commodity within a community is brought into the hands of one party as to practically bring the handling or production of the commodity within a single control, to the exclusion of any outside competition (Miles Laboratories v.  Owl Drug Company, 1940). Section 20 covers not only monopolies acquired by combination, but also those obtained through unfair competition (State v. Central Lumber Co., 1909). The court has found that a statute imposing an excise tax on the selling of butter substitutes to consumers does not violate Section 20, since the purpose of the statute was to raise revenue, and not to create a subsidy for the butter industry (Schmitt v. Nord, 1947). According to the court, a legislative act creating a subsidy for the benefit of the butter industry would be unconstitutional, but a revenue act is within the proper power of the legislature.

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Section 21 (Sections 21 through 24 have been ruled unconstitutional.) Corporate or Syndicate Farming Prohibited—Definitions—Restrictions No corporation or syndicate may acquire, or otherwise obtain an interest, whether legal, beneficial, or otherwise, in any real estate used for farming in this state, or engage in farming. The term, corporation, means any corporation organized under the laws of any state of the United States or any country. The term, syndicate, includes any limited partnership, limited liability partnership, business trust, or limited liability company organized under the laws of any state of the United States or any country. A  syndicate does not include general partnerships, except general partnerships in which nonfamily farm syndicates or nonfamily farm corporations are partners. The term, farming, means the cultivation of land for the production of agricultural crops, fruit, or other horticultural products, or the ownership, keeping, or feeding of animals for the production of livestock or livestock products.

Section 22 Restrictions—Application The restrictions in § 21 of Article XVII do not apply to: (1) A family farm corporation or syndicate. A family farm corporation or syndicate is a corporation or syndicate engaged in farming or the ownership of agricultural land, in which a majority of the partnership interests, shares, stock, or other ownership interests are held by members of a family or a trust created for the benefit of a member of that family. The term, family, means natural persons related to one another within the fourth degree of kinship according to civil law, or their spouses. At least one of the family members in a family farm corporation or syndicate shall reside on or be actively engaged in the day-to-day labor and management of the farm. Day-to-day labor and management shall require both daily or routine substantial physical exertion and administration. None of the corporation’s or syndicate’s partners, members, or stockholders may be nonresident aliens, or other corporations or syndicates, unless all of the stockholders, members, or partners of such entities are persons related within the fourth degree of kinship to the majority of partners, members, or stockholders in the family farm corporation or syndicate; (2) Agricultural land acquired or leased, or livestock kept, fed or owned, by a cooperative organized under the laws of any state, if a majority of the shares or other interests of ownership in the cooperative are held by members in the cooperative who are natural persons actively engaged in the day-to-day labor and management of a farm, or family farm corporations or syndicates, and who either acquire from the cooperative, through purchase or otherwise, such livestock, or crops produced on such land, or deliver to the cooperative, through sale or otherwise, crops to be used in the keeping or feeding of such livestock; (3) Nonprofit corporations organized under state nonprofit corporation law; (4) Agricultural land, which, as of the approval date of this amendment, is being farmed, or which is owned or leased, or in which there is a legal or beneficial interest, directly or indirectly owned, acquired, or obtained by a corporation or syndicate, if such land or other interest is held in continuous ownership

A r t ic l e X V I I   n   2 47 or under continuous lease by the same such corporation or syndicate. For the purposes of this exemption, land purchased on a contract signed as of the approval date of this amendment is considered as owned on that date; (5) Livestock, which as of the approval date of this amendment, is owned by a corporation or syndicate. For the purposes of this exemption, livestock to be produced under contract for a corporation or syndicate are considered as owned, if the contract is for the keeping or feeding of livestock and is signed as of the approval date of this amendment, and if the contract remains in effect and is not terminated by either party to the contract. This exemption does not extend beyond the term of any contract signed as of the approval date of this amendment; (6) A farm operated for research or experimental purposes, if any commercial sales from the farm are only incidental to the research or experimental objectives of the corporation or syndicate; (7) Land leases by alfalfa processors for the production of alfalfa; (8) Agricultural land operated for the purpose of growing seed, nursery plants, or sod; (9) Mineral rights on agricultural land; (10) Agricultural land acquired or leased by a corporation or syndicate for immediate or potential nonfarming purposes, for a period of five years from the date of purchase. A corporation or syndicate may hold such agricultural land in such acreage as may be necessary to its nonfarm business operation, but pending the development of the agricultural land for nonfarm purposes, such land may not be used for farming except under lease to a family farm corporation or family farm syndicate or a nonsyndicate or noncorporate farm; (11) Agricultural lands or livestock acquired by a corporation or syndicate by process of law in the collection of debts, or by any procedures for the enforcement of a lien, encumbrance, or claim thereon, whether created by mortgage or otherwise. Any lands so acquired shall be disposed of within a period of five years and may not be used for farming before being disposed of, except under a lease to a family farm corporation or syndicate, or a nonsyndicate or noncorporate farm. Any livestock so acquired shall be disposed of within six months; (12) Agricultural lands held by a state or nationally chartered bank as trustee for a person, corporation or syndicate that is otherwise exempt from the provisions of §§ 21 to 24, inclusive, of Article XVII; (13) A bona fide encumbrance taken for purposes of security; (14) Custom spraying, fertilizing, or harvesting; (15) Livestock futures contracts, livestock purchased for slaughter within two weeks of the purchase date, or livestock purchased and resold within two weeks.

Section 23 Loss of Qualification—Requalification or Dissolution If a family farm corporation or family farm syndicate that has qualified under all the requirements of a family farm corporation or a family farm syndicate ceases

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to meet the defined criteria, it has twenty years, if the ownership of the majority of the stock of such corporation, or the majority of the ownership interest of such syndicate, continues to be held by persons related to one another within the fourth degree of kinship or their spouses, and their land holdings are not increased, to either requalify as a family farm corporation or family farm syndicate or dissolve and return to personal ownership.

Section 24 Annual Report—Violations—Action and Enforcement Any corporation or syndicate that owns agricultural land or engages in farming is required to report information necessary for the enforcement of §§ 21 to 24, inclusive, of Article XVII to the secretary of state on an annual basis, under rules promulgated by the secretary pursuant to state law. The secretary of state shall monitor such reports and notify the attorney general of any possible violations, and any resident of the state may also notify the attorney general of any possible violations. If a corporation or syndicate violates any provision of §§ 21 to 24, inclusive, of Article XVII, the attorney general shall commence an action in circuit court to enjoin any pending illegal purchase of land or livestock, or to force divestiture of land or livestock held in violation of §§ 21 to 24, inclusive, of Article XVII. The court shall order any land held in violation of §§ 21 to 24, inclusive, of Article XVII to be divested within two years and any livestock to be divested within six months. If land so ordered by the court has not been divested within two years, the court shall declare the land escheated to the state. If the attorney general fails to bring an action in circuit court to enforce §§ 21 to 24, inclusive, of Article XVII, any resident of the state has standing in circuit court to sue for enforcement.

These sections dealing with prohibitions of corporate farming in the state of South Dakota were added to the constitution in a 1998 referendum. A proposed repeal of these sections was submitted to the voters on June 4, 2002 but was rejected. These sections, known as Amendment E, were declared unconstitutional by the U.S. Eighth Circuit Court of Appeals in South Dakota Farm Bureau, Inc. v.  Hazeltine (2003). Subject to certain exemptions, Amendment E generally prohibited corporations from acquiring farmland or from otherwise engaging in farming in South Dakota. The Eighth Circuit ruled that these provisions violated the dormant Commerce Clause. Under the dormant Commerce Clause, states may not enact laws that discriminate against or unduly burden interstate commerce, unless the state can show that it has no other means of advancing a legitimate state interest. In Hazeltine, the court found that the South Dakota state legislature had a discriminatory purpose in enacting Amendment E. In so ruling, the court found that the record contained a substantial amount of evidence of discriminatory intent against out-of-state businesses. The court then found that the state did not meet its burden of showing that other reasonable nondiscriminatory alternatives existed to advance any legitimate state interests.

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According to one commentator, the purpose of Amendment E was to keep large hog producers out of South Dakota.108 But even though Amendment E was intended to keep large out-of-state agri-businesses from coming into South Dakota, it also prevented other types of industries from operating in South Dakota.109 Amendment E was the successor to South Dakota’s Family Farm Corporation Act, which was passed in 1974 to address “the importance of the family farm to the economic and moral stability of the state” and because “the existence of the family farm is threatened by conglomerates in farming.”110 Amendment E was similar to a host of laws in other rural states aimed at protecting small family farms from corporate takeover.111 Specifically, Amendment E resembled Nebraska’s anti-corporate farming law.112 However, while similar anti-corporate farming laws in North Dakota, Missouri, and Nebraska had been upheld against constitutional challenges under the Privileges or Immunities Clause, the Contract Clause, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the South Dakota anti-corporate farming provisions were struck down under the dormant Commerce Clause.113

Neal Fulton, Amendment E: The Constitutional Dimensions of Unintended Consequences, 49 S.D. L. Rev. 781 (2004). 109 Id. at 783–85. 110 Fulton, Amendment E. 111 Meredith Redlin & Brad Redlin, Amendment E: Rural Communities and the Family Farm, 49 S.D. L. Rev. 787 (2004). 112 Id. at 792. 113 Susan Stokes & Christy Brekken, The Eighth Circuit Grants Corporate Interests a New Weapon Against State Regulation in South Dakota Farm Bureau v. Hazeltine, 49 S.D. L. Rev. 795, 796 (2004). 108

Article XVIII Banking and Currency

Section 1 General Banking Law—Provisions Required If a general banking law shall be enacted it shall provide for the registry and countersigning by an officer of this state of all bills or paper credit designed to circulate as money, and require security to the full amount thereof, to be deposited with the state treasurer, in the approved securities of the state or of the United States, to be rated at ten per centum below their par value, and in case of their depreciation the deficiency shall be made good by depositing additional securities.

A 1984 proposed amendment that would have substituted the state treasurer and administrator of school lands for the state treasurer was rejected. Section 2 Bank to Cease Operations within Twenty Years of Organization— Reorganization Every bank, banking company or corporation shall be required to cease all banking operations within twenty years from the time of its organization, and promptly thereafter close its business, but shall have corporate capacity to sue or be sued until its business is fully closed, but the Legislature may provide by general law for the reorganization of such banks.

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Section 3 Liability of Banking Corporation Shareholders and Stockholders— Exemption Under Federal Law The shareholders or stockholders of any banking corporation shall be held individually responsible and liable for all contracts, debts and engagements of such corporation to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares or stock and such individual liability shall continue for one year after any transfer or sale of stock by any stockholder or stockholders. Provided that if the shareholders and stockholders of any national banking corporation shall be exempt from liability by federal law then and in that event the liability upon shareholders and stockholders of state banking corporations herein imposed shall not be operative in the event that such state banking corporation has membership in the federal deposit insurance corporation.

An amendment that added the proviso for exemption from liability for banks belonging to the Federal Deposit Insurance Corporation was approved in November of 1936. This amendment exempted from double liability those stockholders in state banks that had membership in the Federal Deposit Insurance Corporation (Federal Deposit Insurance Corporation of Washington, D.C. v. Ensteness, 1942). In so doing, Section 3 attempted to harmonize state and federal laws regarding liability. This section, providing for bank stockholders’ liability is self-executing; moreover, the liability created by this section cannot be diminished by legislative action (Smith v. Olson, 1926). However, pursuant to this section, the legislature may prescribe the method for enforcement of the constitutional liability of the stockholders of a closed bank (Himrich v. Walter, 1935). The constitutional and statutory liability of a bank stockholder is for the benefit of creditors, and the bank has no authority or power to collect or release it (Hopkins v. Glendenning, 1941). The reorganization of an insolvent bank does not relieve stockholders from liability to the non-consenting deposit creditors (Bush v. Lien, 1930). In addition, a stockholder’s claims against the bank is no defense to an action to enforce the stockholder’s liability for the benefit of the bank’s creditors (Farmers State Bank of Lane, South Dakota v. Erickson, 1929). Neither the bank nor the directors of the bank have authority over or can collect on the personal liability of the stockholders to the creditors of that bank (Smith v. Goldsmith, 1926).

Article XIX Congressional and Legislative Apportionment

Section 1 Congressional Representatives Elected at Large Until otherwise provided by law, the members of the house of representatives of the United States, apportioned to this state, shall be elected by the state at large.

The apportionment of members of Congress is governed by the Fourteenth Amendment of the U.S. Constitution. Section 2 Senatorial and Representative Districts—Apportionment Until otherwise provided by law, the senatorial and representative districts shall be formed, and the senators and representatives shall be apportioned as follows:  DISTRICTS [Omitted—See S.D. Codified Laws § 2-2-1 et seq. for current provisions.]

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Article XX Seat of Government

Section 1 Temporary Seat of Government—Vote The question of the location of the temporary seat of government shall be submitted to a vote of the electors of the proposed state of South Dakota in same manner and at the same election at which this Constitution shall be submitted, and the place receiving the highest number of votes shall be the temporary seat of government until a permanent seat of government shall be established as hereinafter provided.

Pursuant to the election required by this section, the vote was substantially in favor of Pierre, followed by Huron, Watertown, Sioux Falls, and Mitchell in that order. Section 2 Permanent Seat of Government—Vote The Legislature at its first session after the admission of this state, shall provide for the submission of the question of a place for a permanent seat of government to the qualified voters of the state at the next general election thereafter, and that place which receives a majority of all the votes cast upon that question shall be the permanent seat of government.

At an election held in November of 1890, Pierre was selected as the permanent state capital. Pierre received 41,876 votes, with Huron receiving 34,252. 255

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An amendment to change the site of the permanent capital to Mitchell was defeated in an election in November of 1904. Section 3 Election Between Two Places with Highest Votes If Majority Vote Not Received Should no place voted for at said election have a majority of all votes cast upon this question, the Governor shall issue his proclamation for an election to be held in the same manner at the next general election to choose between the two places having received the highest number of votes cast at the first election on this question. This election shall be conducted in the same manner as the first election for the permanent seat of government, and the place receiving the majority of all votes cast upon this question shall be the permanent seat of government.

Article XXI Miscellaneous

Section 1 Seal and Coat of Arms The design of the great seal of South Dakota shall be as follows: A circle within which shall appear in the left foreground a smelting furnace and other features of mining work. In the left background a range of hills. In the right foreground a farmer at his plow. In the right background a herd of cattle and a field of corn. Between the two parts thus described shall appear a river bearing a steamboat. Properly divided between the upper and lower edges of the circle shall appear the legend, “Under God the People Rule” which shall be the motto of the state of South Dakota. Exterior to this circle and within a circumscribed circle shall appear, in the upper part, the words, “State of South Dakota,” in the lower part the words, “Great Seal,” and the date in Arabic numerals of the year in which the state shall be admitted to the union.

Section 2 Salary of Constitutional Officers The Legislature by two-thirds vote of each branch thereof at any regular session may fix the salary of any or all constitutional officers including members of the Legislature. In fixing any such salary the Legislature shall determine the effective date thereof and may in its discretion decrease or increase the salary of any officer during his term.

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The original text of this section provided fixed salaries for the constitutional officers of the state, with limited authority in the legislature to increase the salaries of the governor and the judges of the state courts. Proposed amendments dealing generally with increasing salaries, were rejected in 1916, 1918, 1920, 1922, 1926, 1930, and 1932. A proposed amendment rejected in 1942 would have set the salary of the supreme court judges at $6,000. An amendment approved in 1946 rewrote this section in its present form. Section 3 Oath of Office Every person elected or appointed to any office in this state, except such inferior offices as may be by law exempted, shall, before entering upon the duties thereof, take an oath or affirmation to support the Constitution of the United States and of this state, and faithfully to discharge the duties of his office.

A proposal to repeal this section was rejected by the voters on November 5, 1974. The South Dakota Supreme Court, in applying this section, has held that the office of assessor is an inferior office (Potts v. Miller, 1959). Section 4 Exemptions The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sale a homestead, the value of which shall be limited and defined by law, to all heads of families, and a reasonable amount of personal property, the kind and value of which to be fixed by general laws.

A proposed amendment, rejected in 1894, would have made the homestead exemption ineffective against mortgage foreclosures, vendors’ liens and improvement liens. A proposal rejected in 1976 would have repealed this section, as well as Section 5. As the South Dakota Supreme Court has explained, the purpose of creating the homestead exemption is to provide a family with a home that is protected and secure against the claims of creditors. No inroads upon the homestead exemption are to be recognized, except those that are clearly consistent with constitutional mandates and clearly expressed by the legislature (Brodsky v.  Maloney, 1960). The object of all homestead legislation, according to the court, is to furnish shelter for the family, as well as to promote the interests and welfare of society by restricting alienation or encumbrance (Beck v. Lapsley, 1999). Section 4 is not self-executing. It requires the legislature to enact laws creating a homestead exemption, the value of which is limited and defined by law (Somers v. Somers, 1914). This section exempts from a forced sale the

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homestead and a reasonable amount of personal property, with a mandate to the legislature to define the limits of that homestead and a reasonable amount of personal property. This section was violated by a homestead statute stating that the homestead exemption “shall not be limited” for a person who is 70 years old, since Section 4 states that the value of the exemption “shall be limited and defined by law” (In re Davis, 2004). Under this section, the legislature does not have power to differentiate between debts nor discriminate between creditors by providing that the homestead be subject to certain debts but not to others. The legislature only has power to define the homestead and specify the property or limit the amount in value that shall be exempt (Home Lumber Company v. Heckel, 1940). Although this section grants the homestead exemption to the head of the family, the section does not limit the legislative power to define heads of families. For instance, an individual in the occupancy of a homestead constitutes a family under the homestead law (Somers v. Somers, 1914). The court has been somewhat liberal in extending homestead rights. For instance, where the head of a family owning no other residence purchases the site of an intended home and begins erection of that house, with the intent to establish it as a place of residence for himself and his family, and such intention is followed by occupancy as soon as the house is completed, the property possesses the homestead character even before the house is completed (Brodsky v. Maloney, 1960). The right of homestead may be waived, just as any other right can be waived (Schutterle v. Schutterle, 1977). With respect to the waiver issue, a mortgagee does not violate the “forced sale” clause of Section 4 by foreclosing on a mortgage that contains a clause allowing the mortgagee, upon default by mortgagor, to foreclose and sell the property (In re Kelley, 1980). Essentially, the sale of a homestead under a power of sale contained in a mortgage agreement is not a forced sale within the meaning of Section 4 (Karcher v. Gans, 1900). The homestead right is not an estate in land but is a privilege granted by the legislature in fulfillment of the constitutional mandate in Section 4 (In re Clouse’s Estate, 1934). It consists of the right of occupancy given to the surviving spouse and minor children, and does not pass by succession. Thus, when the need for protection for the family ceases, there is no longer any reason for the homestead (Wisner v. Pavlin, 2006). Section 5 Rights of Married Women The real and personal property of any woman in this state, acquired before marriage, and all property to which she may after marriage become in any manner rightfully entitled, shall be her separate property, and shall not be liable for the debts of her husband.

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A proposed repeal of this section was rejected in 1976. This proposal would have also repealed certain portions of Article VI, as well as Sections 4 and 18 of Article XVII, and would have added new sections to Article VI. There is little in the record regarding this proposed repeal. A 1975 session law (1975 S.L. ch. 3) provided, along with numerous other proposed amendments, that Section 5 of Article XXI would be repealed. At the time, there was no information put out by the secretary of state regarding the repeal of Section 5. Section 6 Drainage of Agricultural Lands The drainage of agricultural lands is hereby declared to be a public purpose and the Legislature may provide therefor, and may provide for the organization of drainage districts for the drainage of lands for any public use, and may vest the corporate authorities thereof, and the corporate authorities of counties, townships and municipalities, with power to construct levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this state, by special assessments upon the property benefited thereby, according to benefits received.

An amendment, adopted in 1906, added this section to the constitution. Under this section, drainage of lands for any public use other than the drainage of agricultural lands must be carried out by drainage districts established by the legislature (Risty v. Chicago, R.I. & P. Ry. Co., 1924). Furthermore, pursuant to both this section and relevant statute, there is the same authority to repair an old ditch that there is to construct a new one (Gilseth v. Risty, 1923). Section 7 Irrigation of Agricultural Lands The irrigation of agricultural lands is hereby declared to be a public purpose and the Legislature may provide for the organization of irrigation districts for the irrigation of land, and may vest the corporate authorities thereof and the corporate authorities of counties, townships and municipalities with the power to construct, operate and maintain irrigation dams, reservoirs, canals, flumes, ditches and laterals, and to keep in repair all irrigation dams, reservoirs, canals, flumes, ditches and laterals heretofore constructed, under the laws of the state, by special assessments upon the property benefited thereby, according to the benefits received.

This section was added to the constitution in 1916, after having been rejected in 1914. This section authorizes the legislature to delegate various powers to conservancy districts. Except for the limitations of area and power, as defined by statute, a conservancy sub-district necessarily partakes of the same governmental characteristics as its parent body. Although it is not a true municipal

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corporation, it is vested with some of the powers and attributes of a municipality and hence may be described as quasi-municipal (In re Oahe Conservancy Subdistrict, 1971). Section 8 Hail Insurance The providing of insurance against loss or damage to crops by hail is hereby declared to be a public purpose, and the Legislature is authorized and empowered to levy an assessment upon agricultural land for such purpose, with such exemptions as may be provided by law. The state may be divided into hail insurance districts and the assessment per acre in the different districts shall be as the Legislature may determine, but such assessment shall be uniform upon all land of the same district that is similarly situated. The assessment hereby authorized may be levied by the Legislature direct, or by the corporate authorities of the districts herein provided for, or by such other agency as may be authorized by general law.

This section was added to the constitution in 1918. According to the South Dakota Supreme Court, this section, which requires that the assessment for hail insurance be uniform on all land similarly situated in the same district, nullified a statute fixing the annual premium for state hail insurance in each of four districts and specifying that the insurance would take place in some of the counties on different dates than in others (Stavig v. Van Camp, 1923). Section 9 Marriage Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota.

By an amendment designated as Constitutional Amendment C, this section was approved on November 7, 2006 and added to the constitution.

Article XXII Compact with the United States

The following article shall be irrevocable without the consent of the United States and the people of the state of South Dakota expressed by their legislative assembly: First. That perfect toleration of religious sentiment shall be secured, and that no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship. Second. That we, the people inhabiting the state of South Dakota, do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundary of South Dakota, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States; and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; that the lands belonging to citizens of the United States residing without the said state shall never be taxed at a higher rate than the lands belonging to residents of this state; that no taxes shall be imposed by the state of South Dakota on lands or property therein belonging to or which may hereafter be purchased by the United States, or reserved for its use. But nothing herein shall preclude the state of South Dakota from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relation and has obtained from the United States, or from any person a title thereto by patent or other grant save and except such lands as have been or may be granted to any Indian or Indians under any act of Congress containing a provision exempting the lands thus granted from taxation. All such lands

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which may have been exempted by any grant or law of the United States, shall remain exempt to the extent, and as prescribed by such act of Congress. Third. That the state of South Dakota shall assume and pay that portion of the debts and liabilities of the territory of Dakota as provided in this Constitution. Fourth. That provision shall be made for the establishment and maintenance of systems of public schools, which shall be open to all the children of this state, and free from sectarian control.

Related provisions within the South Dakota Constitution can be found in Article VI, Section 3 and Article VIII, dealing with freedom of religion and the public school system. Also related to this section is a significant body of federal law dealing with criminal jurisdiction over Native Americans, hunting and fishing rights of Native Americans, Native American land, contracts involving Native Americans, and tribal jurisdiction. In determining issues of jurisdiction, the court’s inquiry is over whether actions of the state would infringe on the right of tribes to make and be governed by their own laws (Matter of Guardianship of D.L.L., 1980). This article, concerning jurisdiction of Congress over Indian lands within South Dakota, serves to maintain the supreme powers of the United States to fully respond to its obligations to Indians. Its intent is that the state should exercise only a limited jurisdiction over Indian reservations within state boundaries (Anderson v. Brule County, 1940). Generally, however, either the federal government or the Indian tribe, and not the state, has jurisdiction over crimes committed in Indian country (State v. Owen, 2007). Article XXII was required as a condition for South Dakota’s admission into the Union in 1889. As one commentator has noted, “since the earliest days of the Republic, Indians in Indian Country have been considered subject to federal and tribal jurisdiction rather than state jurisdiction,” and that “until 1986, it was clear that state criminal jurisdiction in South Dakota did not extend to Indians on reservations.”114 To comply with the congressional act conferring South Dakota statehood, the 1889 constitution included a disclaimer of jurisdiction over Indian lands. Thus, subject to various federal laws concerning state and federal jurisdiction in Indian Country, such as the Indian Civil Rights Act, South Dakota under Article XXII has generally exercised “jurisdiction in Indian country only when Indians were not involved.”115 Under this section, for instance, the state has been precluded from exercising jurisdiction in actions involving the possession or right to possession of Indian reservation lands, such as an action of trespass brought by a tribal Indian against an Indian agent to recover damages for the latter’s act in

Keith Cable, Rosebud vs. South Dakota: How Does Tribal Sovereignty Affect the Determination of State Jurisdiction on Reservation Highways?, 36 S.D. L. Rev. 400 (1991). 115 Id. at 401. 114

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destroying fences erected by the former on land within the reservation (Peano v. Brennan, 1906). Similarly, state courts have been denied jurisdiction over an action by one Indian against other Indians for damages resulting from an automobile accident on a state highway within the territorial limits of an Indian reservation (Smith v. Temple, 1967). It has also been ruled that an Indian tribal court has exclusive jurisdiction over a landowner’s claim against tribal members relating to property held in trust for the tribe (Risse v. Meeks, 1998). Exceptions for when a tribe may regulate the use of non-Indian fee land include: 1) the power to regulate, through taxation, licensing, or other means, activities of non-members who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements; and 2) the exercise of jurisdiction over the conduct of non-Indians on fee lands within reservations when that conduct threatens or has some direct effect on the political integrity, economic security, or health or welfare of the tribe (Plains Commerce Bank v. Long Family Land and Cattle Company, 2008).

Article XXIII Amendments and Revisions of the Constitution

In 1976, a proposed amendment to this article was rejected by the voters. The proposed amendment would have added a new Section 4, which would have required the legislature by resolution to arrange the constitution every ten years in an orderly fashion in appropriate articles, deleting obsolete sections, but not changing the language of any sections. This “arranging” would have required a two-thirds majority vote of all members of each house for passage, and made the resolution subject to referendum. Section 1 Amendments Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment.

A 1972 amendment rewrote the entire article. It also divided the subject matter of the previous Section 1 into Sections 1 and 3, and deleted a requirement 267

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that legislators’ votes on a proposed amendment be recorded in the journals. This 1972 amendment also deleted a requirement that proposed amendments be submitted at the next general election, and added provisions for proposal of amendments by initiative petition. Finally, it added the last sentence. Under this section, separate amendments must be submitted to the voters separately (Barnhart v. Herseth, 1974). In Barnhart v. Herseth, decided after the 1972 amendment to this section, a constitutional amendment that made several changes in the executive branch of state government, including extending the term of the governor, reducing the number of governmental departments, authorizing the governor to reorganize the departments of government, and deleting the office of state superintendent of public construction, contained matters all rationally related to the overall plan of making the executive branch of state government more efficient and responsible. Thus, this amendment was properly submitted to the voters as one amendment. With respect to constitutional amendments, the legislative history and historical background can be of assistance to courts interpreting those amendments if there is an ambiguity in the constitutional language that requires interpretation by principles of construction (Cummings v. Mickelson, 1993). While rejected constitutional amendments may be considered in determining the intent of the framers, the court has recognized that it is difficult to draw any conclusion as to the will of the people from that failure, since the law is not made by defeating bills or proposed constitutional amendments (Bone Shirt v. Hazeltine, 2005). Section 2 Revision A convention to revise this Constitution may be called by a three-fourths vote of all the members of each house. The calling of a constitutional convention may be initiated and submitted to the voters in the same manner as an amendment. If a majority of the voters voting thereon approve the calling of a convention, the Legislature shall provide for the holding thereof. Members of a convention shall be elected on a nonpolitical ballot in the same districts and in the same number as the house of representatives. Proposed amendments or revisions approved by a majority of all the members of the convention shall be submitted to the electorate at a special election in a manner to be determined by the convention.

Constitutional conventions proposed in 1913 and 1923 were rejected by the voters. A 1915 proposed amendment, which was rejected in 1916, would have based representation in a constitutional convention on senatorial rather than house districts; extended the time for a convening of the convention from three to five months after the election; and required the 1917 legislature to call a convention.

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A 1972 amendment, approved on November 7, 1972, revised the entire article. It increased from two-thirds to three-fourths the legislative vote required to call a convention, and dispensed with the requirement for approval by the electorate of a convention called by the legislature. This amendment also inserted the second and third sentences, and provided for the calling of a convention by an initiative petition. The 1972 amendment added a requirement that members of a convention be elected on a non-political ballot, and it deleted a requirement that a convention meet within three months after election of its members. Finally, the 1972 amendment added the final sentence, and provided for a special election on proposals made by a convention. Section 3 Ratification Any constitutional amendment or revision must be submitted to the voters and shall become a part of the Constitution only when approved by a majority of the votes cast thereon. The Legislature may provide for the withdrawal by its sponsors of an initiated amendment at any time prior to its submission to the voters.

This section originally appeared in the 1889 constitution as Article XXIII, Section 1. A 1972 amendment, approved on November 7, 1972, divided the previous subject matter of Section 1 into Sections 1 and 3, and deleted the requirements for twelve weeks’ publication and for separate submission of separate amendments. This amendment also added the second sentence and provided for withdrawal by sponsors of initiated amendments. According to the South Dakota Supreme Court, and in its interpretation of South Dakota statutes, the basic purpose of the attorney general’s ballot statement as to the legal effect of a proposed constitutional amendment is to identify and summarize the purpose and legal effect of that amendment to an informed electorate; it is not to educate the electorate (Hoogestraat v. Barnett, 1998).

Article XXIV Prohibition [Repealed]

Former Article XXIV, relating to prohibition, was adopted by a separate vote at the time of adoption of the South Dakota Constitution. It was then repealed in November 1896. Article XXIV, as later adopted in 1916, was subsequently repealed in November of 1934.

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Article XXV Minority Representation [Rejected]

Article XXV, relating to minority representation, was submitted to a separate vote, as provided by the schedule and ordinance, at the time of the adoption of the constitution in 1889. This article was rejected in that election.

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Article XXVI Schedule and Ordinance

Section 1 Continuation of Prior Writs, Actions, Claims, and Bodies Corporate— Validation of Previously Issued Process That no inconvenience may arise from the change of the territorial government to the permanent state government, it is hereby declared that all writs, actions, prosecutions, claims and rights of individuals, and all bodies corporate, shall continue as if no change had taken place in this government; and all process which may be before the organization of the judicial department, under this Constitution, issued under the authority of the territory of Dakota, within the boundary of this state, shall be as valid as if issued in the name of the state of South Dakota.

This section was adopted to effectuate the transition from territorial to state government. It provides that, on the change from the territorial to the state government, existing rights and actions shall continue as if no change had taken place (Smith v.Tosini, 1891). Section 2 Fines, Forfeitures, and Escheats of Territory to Accrue to State That all fines, penalties, forfeitures and escheats accruing to the territory of Dakota, within the boundary of the state of South Dakota, shall accrue to the use of said state.

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Section 3 Recognizances, Bonds, Obligations, and Undertakings—Criminal Prosecutions and Penal Actions That all recognizances, bonds, obligations or other undertakings, heretofore taken, or which may be taken before the organization of the judicial department under this Constitution, shall remain valid, and shall pass over to, and may be prosecuted in the name of the state of South Dakota; and all bonds, obligations or undertakings, executed to this territory, within the boundaries of the state of South Dakota, or to any officer in his official capacity, shall pass over to the proper state authority, and to their successors in office, for the uses therein respectively expressed, and may be sued for and recovered accordingly. All criminal prosecutions and penal actions, which have arisen, or which may arise before the organization of the judicial department under this Constitution, and which shall then be pending, may be prosecuted to judgment and executed in the name of the state.

Section 4 Civil and Military Officers All officers, civil and military, now holding their offices and appointments in this territory under the authority of the United States, or under the authority of the territory of Dakota, shall continue to hold and exercise their respective offices and appointments until superseded under this Constitution: provided, that the provisions of the above sections shall be subject to the provisions of the act of Congress providing for the admission of the state of South Dakota, approved by the president of the United States on February 22, 1889.

This section provides that, during the transition from territory to state, certain officers shall continue to hold and exercise their respective offices until superseded under the new state constitution (Driscoll v. Jones, 1890). As with the previous sections, this constitutional provision seeks to effectuate the transition from territorial to state government. Section 5 Election of Constitution and State Officers—Ballots This Constitution shall be submitted for adoption or rejection to a vote of the electors qualified by the laws of this territory to vote at all elections, at the election to be held on Tuesday, October 1, 1889. At the said election the ballots shall be in the following form: For the Constitution: Yes. No. For prohibition: Yes. No. For minority representation: Yes. No. As a heading to each of said ballots shall be printed on each ballot the following instructions to voters: All persons desiring to vote for the Constitution, or for any of the articles submitted to a separate vote, must erase the word “No.”

A r t ic l e X X V I   n   2 7 7 All persons who desire to vote against the Constitution, or against any article submitted separately, must erase the word “Yes.” Any person may have printed or written on his ballot only the words “for the Constitution,” or “against the Constitution,” and such ballot shall be counted for or against the Constitution accordingly. The same provision shall apply to articles submitted separately. In addition to the foregoing election for the Constitution and for the articles submitted by this convention for a separate vote thereon, an election shall be held at the same time and places, by the said qualified electors, for the following state officers, to be voted for on the same ballot as above provided for votes on the Constitution and separate articles, to wit: A Governor, lieutenant governor, secretary of state, auditor, treasurer, attorney general, superintendent of public instruction, commissioner of school and public lands, judges of the Supreme, circuit and county Courts, representatives in Congress, state senators, and representatives in the Legislature. All the elections above provided for shall be held in the same manner and form as provided for the election for the adoption or rejection of the Constitution. And the names of all the officers above specified to be voted for at such election shall be written or printed upon the same ballots as the vote for or against the Constitution. The judges of election in counting the ballots voted at such election shall count all the affirmative ballots upon the Constitution as votes for the Constitution; and they shall count all the negative ballots voted at said election upon the Constitution as votes against the Constitution; and ballots voted at said election upon which neither of said words “yes” or “no” following the words “for the Constitution” are erased, shall not be counted upon such proposition. And they shall count all affirmative ballots so voted upon the article on prohibition separately submitted, as votes for such article, and they shall count all negative ballots so voted upon such article as votes against such article; and ballots upon which neither the words “yes” or “no” following the words “for prohibition” are erased, shall not be counted upon such proposition; and they shall count all the affirmative ballots so voted upon the article on minority representation, separately submitted, as votes for such article. And they shall count all negative ballots so voted upon such article as votes against such article; and ballots upon which neither of said words “yes” or “no” following the words “for minority representation” are erased, shall not be counted upon such proposition. If it shall appear in accordance with the returns hereinafter provided for, that a majority of the votes polled at such election, for and against the Constitution, are for the Constitution, then this Constitution shall be the Constitution of the state of South Dakota. If it shall appear, according to the returns hereinafter provided for, that a majority of all votes cast at said election for and against “prohibition” are for prohibition then said article XXIV shall be and form a part of this Constitution, and be in full force and effect as such from date of said election, but if a majority of said votes shall appear, according to said returns to be against prohibition, then article XXIV shall be null and void and shall not be a part of this Constitution. And if it appear, according to the returns hereinafter provided for, that a majority of all votes cast at said election for and against “minority representation” are for minority representation, then article XXV shall be and form a part of said Constitution,

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and be in full force and effect as such from the date of said election; but if a majority of said votes shall appear, according to said returns, to be against minority representation, then said article XXV shall be null and void and shall not be a part of this Constitution. At such election the person voted for, for any one of the offices to be filled at such election, who shall receive the highest number of votes cast at said election, shall be declared elected to said office.

Section 6 Election for Temporary Seat of Government At the same time and places of election there shall be held by said qualified electors an election for the place of the temporary seat of government. On each ballot, and on the same ballot on which are the matters voted for or against, as hereinbefore provided, shall be written or printed the words “for temporary seat of government,” (Here insert the name of the city, town or place, to be voted for.) And upon the canvass and return of the vote, made as hereinafter provided for, the name of the city, town or place which shall have received the largest number of votes for said temporary seat of government, shall be declared by the Governor, chief justice and secretary of the territory of Dakota, or by any two of them, at the same time that they shall canvass the vote for or against the Constitution, together with the whole number of votes cast for each city, town or place, and the officers above named, shall immediately after the result of said election shall have been ascertained, issue a proclamation directing the Legislature elected at said election to assemble at said city, town or place so selected, on the day fixed by this schedule and ordinance.

Section 7 Conduct of Election The election provided for herein shall be under the provisions of the Constitution herewith submitted, and shall be conducted in all respects as elections are conducted under the general laws of the territory of Dakota, except as herein provided. No mere technicalities or informalities in the manner or form of election, or neglect of any officer to perform his duty with regard thereto, shall be deemed to vitiate or avoid the same, it being the true intent and object of this ordinance to ascertain and give effect to the true will of the people of the state of South Dakota, as expressed by their votes at the polls.

Section 8 Election Returns Immediately after the election herein provided for, the judges of election at each voting place shall make a true and complete count of all the votes duly cast at such election, and shall certify and return the result of the same, with the names of all the candidates and the number of votes cast for each candidate, and the number of votes cast for and against the Constitution, and the number of votes cast for and against prohibition, and the number of votes cast for and against minority representation, and the number of votes cast for each city, town or place for the “temporary seat of government,” to the county clerk, or auditor of the respective counties, together with one of the poll lists and election books used in said election.

A r t ic l e X X V I   n   2 7 9 Section 9 Canvass of Vote—Filing with County Clerks or Auditors Within five days after said election the several boards of county canvassers provided by law for the canvassing of the results of the election, shall make and certify to the secretary of the territory of Dakota the true and correct return of the total number of votes cast for the Constitution, and against the Constitution, of the number of votes cast for and against “prohibition,” and the number of votes cast for and against “minority representation,” and the number of votes cast for each city, town or place as the “temporary seat of government,” and of the number of votes cast for each person voted for at such election, except county officers and members of the Legislature, and shall transmit the same to the secretary of the territory of Dakota, by mail, and shall file with the county clerk or auditor of each of said counties a duplicate and certified copy of said return. Said board of county canvassers shall issue certificates of election to the persons who shall have received the highest number of votes cast for the respective offices of judge of the county court, and representatives in the Legislature, and for state senator or senators.

Section 10 Certification of Senator or Representative from Multi-County District When two or more counties are connected in one senatorial or representative district, it shall be the duty of the clerks and auditors of the respective counties to attend at the office of the county clerk of the senior county in the date of organization within twenty days after the date of election, and they shall compare the votes given in the several counties comprising such senatorial and representative district and such clerks or auditors shall immediately make out a certificate of election to the person having the highest number of votes in such district for state senator or representative or both; which certificate shall be delivered to the person entitled thereto on his application to the clerk of the senior county of such district.

Section 11 Delivery of Returns to Proper State Officer—Certification to President— Proclamation of Election Result—Lists of Elected Officers—Certificates of Election The secretary of the territory shall receive all returns of election transmitted to him as above provided, and shall preserve the same, and after they have been canvassed as hereinafter provided, and after the admission of the state of South Dakota into the union, he shall deliver said returns to the proper state officer of said state of South Dakota. Within fifteen days after said election the secretary of the territory, with the Governor and chief justice thereof, or any two of them, shall canvass such returns and certify the same to the president of the United States, as provided in the Enabling Act. They shall also ascertain the total number of votes cast at such election for the Constitution and against the Constitution; the total number of votes cast for and against prohibition; and the total number of votes cast for and against minority representation; and the total number of votes cast for each city, town or place as the “temporary seat of government”; and the total number of votes

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cast for each person voted for, for any office at said election, excepting county judges and members of the Legislature, and shall declare the result of said election in conformity with such vote, and the Governor of the territory shall thereupon issue a proclamation at once thereof. They shall also make and transmit to the state Legislature, immediately upon its organization, a list of all the state and judicial officers who shall thus be ascertained to be duly elected. The various county and district canvassing boards shall make and transmit to the secretary of the territory the names of all persons declared by them to be elected members of the senate and house of representatives of the state of South Dakota; he shall make separate lists of the senators and representatives so elected, which list shall constitute the rolls under which the senate and house of representatives shall be organized. The Governor of the territory shall make and issue certificates of election to the persons who are shown by the canvass to have received the highest number of votes for Governor, lieutenant governor, secretary of state, auditor, treasurer, attorney general, superintendent of public instruction, commissioner of school and public lands and judges of the Supreme and circuit Courts. Such certificates to be attested by the secretary of the territory.

Section 12 Apportionment of State Legislature—Number of Senators and Representatives Initially Elected The apportionment made in this Constitution shall govern the elections above provided for members of the state Legislature, until otherwise provided by law. At the first election held under this ordinance for senators and representatives of the Legislature, there shall be elected forty-five senators and one hundred and twenty-four representatives in the state Legislature respectively.

Section 13 First Assembly of Legislature—Oaths of Office The Legislature elected under the provisions of this ordinance and Constitution shall assemble at the temporary seat of government on the third Tuesday in October, in the year a.d. 1889, at 12 o’clock noon, and on the first day of their assemblage the Governor and other state officers shall take the oath of office in the presence of the Legislature. The oath of office shall be administered to the members of the Legislature and to the state officers by the chief justice of the territory, or by any other officer duly authorized by the laws of the territory of Dakota to administer oaths.

Section 14 Election of Two United States Senators—Two Representatives Immediately after the organization of the Legislature and taking the oath of office by the state officers, the Legislature shall then and there proceed to the election of two senators of the United States for the state of South Dakota, in the mode and manner provided by the laws of Congress for the election of United States senators. And the Governor and the secretary of the state of South Dakota shall certify the election of the said senators and two representatives in Congress, in the manner required by law.

A r t ic l e X X V I   n   2 81 Section 15 Adjournment After Election of Senators—Next Meeting Immediately after the election of the United States senators as above provided for, said Legislature shall adjourn to meet at the temporary seat of government on the first Tuesday after the first Monday of January, 1890, at 12 o’clock m.; provided, however, that if the state of South Dakota has not been admitted by proclamation or otherwise at said date, then said Legislature shall convene within ten days after the date of the admission of the state into the union.

Section 16 Legislature and Officers to Exercise Necessary and Authorized Powers Only Pending Admission of State into Union Nothing in this Constitution or schedule contained shall be construed to authorize the Legislature to exercise any powers except such as are necessary to its first organization, and to elect United States senators, and to adjourn as above provided. Nor to authorize any officer of the executive, administrative or judiciary departments to exercise any duties of his office until the state of South Dakota shall have been regularly admitted into the union, excepting such as may be authorized by the Congress of the United States.

Section 17 Validity of Ordinances and Schedule The ordinances and schedule enacted by this convention shall be held to be valid for all the purposes thereof.

Section 18 Freedom of Religion—Public Lands—Indian Lands—Uniformity of Taxation—Territorial Debt—Public Schools—Federal Reservations— Irrevocability That we, the people of the state of South Dakota, do ordain: First. That perfect toleration of religious sentiment shall be secured, and that no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship. Second. That we, the people inhabiting the state of South Dakota, do agree and declare, that we forever disclaim all right and title to the unappropriated public lands lying within the boundaries of South Dakota; and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; that the lands belonging to citizens of the United States residing without the said state, shall never be taxed at a higher rate than the lands belonging to residents of this state. That no taxes shall be imposed by the state of South Dakota on lands or property therein belonging to or which may hereafter be purchased by the United States, or reserved for its use. But nothing herein shall preclude the state of South Dakota from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relation and has obtained from the United States, or from any person a

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title thereto by patent or other grant save and except such lands as have been, or may be granted to any Indian or Indians under any act of Congress containing a provision exempting the lands thus granted from taxation, all such lands which may have been exempted by any grant or law of the United States, shall remain exempt to the extent, and as prescribed by such act of Congress. Third. That the state of South Dakota shall assume and pay that portion of the debts and liabilities of the territory of Dakota as provided in this Constitution. Fourth. That provision shall be made for the establishment and maintenance of systems of public schools, which shall be open to all the children of this state, and free from sectarian control. Fifth. That jurisdiction is ceded to the United States over the military reservations of Fort Meade, Fort Randall and Fort Sully, heretofore declared by the president of the United States: provided legal process, civil and criminal, of this state shall extend over such reservations, in all cases of which exclusive jurisdiction is not vested in the United States, or of crimes not committed within the limits of such reservations. These ordinances shall be irrevocable without the consent of the United States, and also the people of the said state of South Dakota, expressed by their legislative assembly.

This section, disclaiming any rights to lands owned or held by Indians or Indian tribes, and dealing with the jurisdiction over and taxation of Indian lands, relates also to the significant body of federal law governing this area. This body of federal law, as reflected, for instance, in Plains Commerce Bank v. Long Family Land and Cattle Company (2008), deals with the parameters of tribal sovereignty and jurisdiction over tribal lands.116 There is near universal tribal civil authority over non-Indians for activities that take place on trust land and a strong but rebuttable presumption in accordance with Montana v. U.S. (1981) that there is no tribal civil authority over non-Indians involving activities that take place on fee land. For a case dealing with the issue of concurrent jurisdiction between state and federal governments over military reservations, see State v. Cochran (1980). Section 19 Tenure of Elected Officers The tenure of all officers, whose election is provided for in this schedule, on the first day of October, a.d. 1889, shall be as follows: The Governor, lieutenant governor, secretary of state, auditor, treasurer, attorney general, superintendent of public instruction, commissioner of school and public lands, judges of county courts, shall hold their respective offices until the first Tuesday, after the first Monday, in January, a.d. 1891, at twelve o’clock p.m., and until their successors are elected and qualified.

See generally Lisa Slepnikoff, More Questions Than Answers:  Plains Commerce Bank v.  Long Family Land and Cattle Co. and the U.S. Supreme Court’s Failure to Define the Extent of Tribal Civil Authority over Non-Members on Non-Indian Land, 54 S.D. L. Rev. 460 (2009). 116

A r t ic l e X X V I   n   2 8 3 The judges of the Supreme Court and circuit courts shall hold their offices until the first Tuesday, after the first Monday, in January, a.d. 1894, at twelve o’clock p.m., and until their successors are elected and qualified; subject to the provisions of § 26 of article V of the Constitution. The terms of office of the members of the Legislature, elected at the first election held under the provisions of this Constitution, shall expire on the first Tuesday, after the first Monday, in January, 1891.

Section 20 Time of General Election That the first general election under the provisions of this Constitution shall be held on the first Tuesday, after the first Monday, in November, 1890, and every two years thereafter.

Section 21 Form of Ballot The following form of ballot is adopted: Constitutional Ticket INSTRUCTIONS TO VOTERS All persons desiring to vote for the Constitution, or for any of the articles submitted to a separate vote, may erase the word “No.” All persons who desire to vote against the Constitution, or any articles separately submitted may erase the word “Yes.” For the Constitution: Yes. No. For Prohibition: Yes. No. For Minority Representation: Yes. No. For ____ as the temporary seat of government. For Governor. __________ For Lieutenant Governor. __________ For Secretary of State. __________ For Auditor. ________ For Treasurer. __________ For Attorney General. __________ For Superintendent of Public Instruction. _________

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_________ For Judges of the Supreme Court. First District __________ Second District __________ Third District __________ For Judge of the Circuit Court ____ Circuit. For Representatives in Congress. __________ For State Senator. __________ For Representative in the Legislature. __________ For County Judge

Section 22 Enrollment of Constitution—Delivery to Secretary of State—Inclusion in State Laws—Copy to President of United States This Constitution shall be enrolled and after adoption and signing by the convention shall be delivered to Hon. A. J. Edgerton, the president of the constitutional convention, for safekeeping, and by him to be delivered to the secretary of state as soon as he assumes the duties of his office, and printed copies thereof shall be prefixed to the books containing the laws of the state and all future editions thereof. The president of this convention shall also supervise the making of the copy that must be sent to the president of the United States; said copy is to be certified by the president and chief clerk of this convention.

Section 23 Agreement by Joint Commission Concerning Territorial Records, Books, and Archives The agreement made by the joint commission of the constitutional conventions of North and South Dakota concerning the records, books, and archives of the territory of Dakota is hereby ratified and confirmed, which agreement is in the words following: That is to say: The following books, records and archives of the territory of Dakota shall be the property of North Dakota, to wit: All records, books and archives in the offices of the Governor and secretary of the territory (except records of articles of incorporation of domestic corporations, returns of election of delegates to the constitutional convention of 1889, for South Dakota, returns of elections held under the so-called local option law in counties within the limits of South Dakota, bonds of notaries

A r t ic l e X X V I   n   2 8 5 public appointed for counties within the limits of South Dakota, papers relating to the organization of counties situate within the limits of South Dakota, all of which records and archives are a part of the records and archives of said secretary’s office; excepting also census returns from counties situate within the limits of South Dakota and papers relating to requisitions issued upon the application of officers of counties situate within the limits of South Dakota, all which are part of the records and archives of said Governor’s office.) And the following records, books and archives shall also be the property of the state of North Dakota, to wit: Vouchers in the office or in the custody of the auditor of this territory relating to expenditures on account of public institutions, grounds or buildings situate within the limits of North Dakota; one warrant register in the office of the treasurer of this territory, being a record of warrants issued under and by virtue of chapter twenty-four of the laws enacted by the eighteenth legislative assembly of Dakota territory; all letters, receipts and vouchers in the same office now filed by counties and pertaining to counties within the limits of North Dakota; paid and canceled coupons in the same office representing interest on bonds which said state of North Dakota is to assume and pay; reports of gross earnings of the year 1888 in the same office, made by corporations operating lines of railroad situated wholly or mainly within the limits of North Dakota; records and papers of the office of the public examiner of the second district of the territory; records and papers of the office of the second district board of agriculture; records and papers in the office of the board of pharmacy of the district of North Dakota. All records, books and archives of the territory of Dakota which it is not herein agreed shall be the property of North Dakota, shall be the property of South Dakota. The following books shall be copied and the copies shall be the property of North Dakota, and the cost of such copies shall be borne equally by the said states of North Dakota and South Dakota. That is to say: Appropriation ledger for the years ending November, 1889 and 1890—one volume. The current warrant auditor’s register—one volume. Insurance record for 1889—one volume. Treasurer’s cash book “D.” Assessment ledger “B.” Dakota territory bond register—one volume. Treasurer’s current ledger—one volume. The originals of the foregoing volumes which are to be copied, shall at any time after such copying shall have been completed, be delivered on demand to the proper authorities of the state of South Dakota. All other records, books and archives which it is hereby agreed shall be the property of South Dakota shall remain at the capital of North Dakota until demanded by the Legislature of the state of South Dakota, and until the state of North Dakota shall have had a reasonable time after such demand

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is made to provide copies or abstracts or such portions thereof as the said state of North Dakota may desire to have copies or abstracts of. The state of South Dakota may also provide copies or abstracts of such records, books and archives which is agreed shall be the property of North Dakota as said state of South Dakota shall desire to have copies or abstracts of. The expense of all copies or abstracts of records, books and archives which it is herein agreed may be made, shall be borne equally by said two states.

Article XXVII

State Control of Manufacture and Sale of: Liquor [Repealed]

Article XXVII, relating to the state control of the manufacture and sale of liquor, which was adopted in November 1898, was repealed by amendment adopted in November of 1900.

287

Article XXVIII County Investment of Permanent School and Endowment Funds

A 1975 proposal to repeal this article, along with Sections 6 to 14 and 18 of Article VIII, and to amend Sections 2 to 5 of Article VIII, was rejected by the voters on November 2, 1976. A later proposal to repeal this article and to amend Section 11 of Article VIII was rejected on November 7, 1978. Section 1 School and Governmental Bonds—Farm Loans The several counties of the state shall invest the moneys of the permanent school and endowment funds in bonds of school corporations, state, county and municipal bonds or in first mortgages upon good improved farm lands within their limits respectively, under such regulations as the Legislature may provide, but no farm loan shall exceed one thousand dollars to any one person, firm or corporation.

An amendment adopted in 1900 added this article to the constitution.

289

Article XXIX State Elevators, Warehouses, Flouring Mills and Packing Houses

Section 1 Provision for Elevators and Warehouses—Marketing of Agricultural Products—Flouring Mills and Packing Houses The Legislature may provide by law and appropriate money for the purchase or construction and operation of elevators and warehouses, within or without the state, for the marketing of agricultural products; and provided, further, that the Legislature may provide by law and appropriate money to buy or construct and operate flouring mills and packing houses within the state, if, in the future, and in the judgment of the Legislature, the public necessities may so require.

A 1918 amendment added this article to the constitution. According to the South Dakota Supreme Court, flouring mills, within the meaning of this article, does not include other agricultural processing facilities, such as corn wet-milling plants (Matter of Advisory Opinion Concerning the Construction of HB 1255, 1990).

291

n  Table of Cases

A Abbott v. Hunhoff, 491 N.W.2d 450 (1992), 159 Accounts Management Inc. v. Williams, 484 N.W.2d 297 (1992), 75 Adams v. Leapley, 489 N.W.2d 381 (1992), 130 Alexander v. Hamilton, 525 N.W.2d 41 (1994), 104 Anderson v. Brule County, 292 N.W. 429 (1940), 264 Anderson v. South Dakota High School Activities Association, 247 N.W.2d 481 (1976), 162 APA v. Butler, 638 N.W.2d 57 (2001), 202–204 Appeal of Sioux Valley Hospital Association, 513 N.W.2d 562 (1994), 192 Application of Dakota Transportation of Sioux Falls, 291 N.W. 589 (1940), 55 Application of Nelson, 163 N.W.2d 533 (1968), 48 Application of Trevithick, 260 F. Supp. 852 (D. S.D. 1966), 122 Arcon Construction Company v. South Dakota Cement Plant, 349 N.W.2d 407 (1984), 90 Asphalt Surfacing v. South Dakota Dept. of Transportation, 385 N.W.2d 115 (1986), 70–71 Associated General Contractors of South Dakota Inc. v. Schreiner, 492 N.W.2d 916 (1992), 79–80, 194, 214 Aune v. B-Y Water District, 464 N.W.2d 1 (1990), 89

B Bailey v. City of Sioux Falls, 132 N.W. 703 (1911), 118 Bailey v. Jones, 139 N.W.2d 385 (1966), 148 Baker v. Carr (1962), 148 Baker v. Jackson, 372 N.W.2d 142 (1985), 57 Baldridge v. Weber, 746 N.W.2d 12 (2008), 123, 130 Bandy v. Mickelson, 44 N.W.2d 341 (1950), 225 Barnhart v. Herseth, 222 N.W.2d 131 (1974), 93, 268 Barnsdall Refining Corp. v. Welsh, 269 N.W. 853 (1936), 72, 74 Bayer v. Johnson, 349 N.W.2d 447 (1984), 83 Beck v. Lapsley, 593 N.W.2d 410 (1999), 258 Bego v. Gordon, 407 N.W.2d 801 (1987), 86, 89 Behrns v. Burke, 229 N.W.2d 86 (1975), 79 Benson v. State, 710 N.W.2d 131 (2006), 140, 142 Beveridge v. Baer, 241 N.W. 727 (1932), 117 Bjornson v. City of Aberdeen, 296 N.W.2d 896 (1980), 62 Boe v. Foss, 77 N.W.2d 1 (1956), 48, 211–213 Boever v. South Dakota Board of Accountancy, 561 N.W.2d 309 (1997), 55 Bogue v. Clay County, 60 N.W.2d 218 (1953), 141 Bone Shirt v. Hazeltine, 700 N.W.2d 746 (2005), 65, 268 Botkin v. Welsh, 251 N.W. 189 (1933), 189 Brams v. State, 262 N.W. 89 (1935), 196, 223

293

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Breck v. Janklow, 623 N.W.2d 449 (2001), 55, 57–58, 60, 102, 221 Brendtro v. Nelson, 720 N.W.2d 670 (2006), 62 Brodsky v. Maloney, 105 N.W.2d 911 (1960), 258–259 Bryant v. Butte County, 457 N.W.2d 467 (1990), 88 Buchholz v. Storsve, 740 N.W.2d 107 (2007), 139 Budahl v. Gordon and David Associates, 287 N.W.2d 489 (1980), 147 Bult v. Leapley, 507 N.W.2d 325 (1993), 152–153 Burlington Northern Railroad Company v. Green, 624 N.W.2d 826 (2001), 189 Burns v. Kurtenbach, 327 N.W.2d 636 (1982), 103 Bush v. Lien, 234 N.W. 29 (1930), 252 Butte Co. v. Vallery, 602 N.W.2d 284 (1999), 173 Byre v. City of Chamberlain, 362 N.W.2d 69 (1985), 56

C Candee Construction Company Inc. v. South Dakota Department of Transportation, 447 N.W.2d 339 (1989), 193–195  Carter v. Thorson, 59 N.W. 469 (1894), 195 Certificate of a Question of Law from the United States District Court, 372 N.W.2d 113 (1985), 175 Chilstrom v. State Dept. of Transportation, 271 N.W.2d 4 (1978), 194 Christensen v. Carson, 533 N.W.2d 712 (1995), 57 Christopherson v. Reeves, 184 N.W. 1015 (1921), 66, 206 Cid v. South Dakota Department of Social Services, 598 N.W.2d 887 (1999), 143, 147 City of Brookings v. Winker, 554 N.W.2d 827 (S.D. 1996), 115 City of Chamberlain v. R. E. Lien, Inc., 521 N.W.2d 130 (1994), 84 City of Mitchell v. Board of Railroad Commissioners, 184 N.W. 246 (1921), 238 City of Pierre v. Blackwell, 635 N.W.2d 581 (2001), 117 City of Pierre v. Siewert, 261 N.W. 42 (1935), 77 City of Pierre v. Stout, 276 N.W. 922 (1937), 191 City of Rapid City v. Boland, 271 N.W.2d 60 (1978), 85, 118–119, 140 City of Sioux Falls v. Marshall, 204 N.W. 999 (1925), 131 City of Sioux Falls v. Sioux Falls Regional Emergency Medical Services Authority, 234 N.W.2d 35 (1975), 83 City of Sioux Falls v. State Board of Equalization, 203 N.W.2d 419 (1973), 190 City of Sioux Falls v. Walser, 187 N.W. 821 (1922), 131 City of Watertown v. Christnacht, 164 N.W. 62 (1917), 112 Claggett v. Department of Revenue, 464 N.W.2d 212 (1990), 104 Clark v. Board of Commissioners of Clark County, 267 N.W. 138 (1936), 205 Clem v. City of Yankton, 160 N.W.2d 125 (1968), 102 Cody v. Leapley, 476 N.W.2d 257 (1991), 140 Commercial National Bank of Sturgis v. Smith, 244 N.W. 521 (1932), 143 Commercial State Bank of Wagner v. Wilson, 220 N.W. 152 (1928), 189 Conaty v. Solem, 422 N.W.2d 102 (1988), 154 Conway v. Humbert, 145 N.W.2d 524 (1966), 86, 89 County of Tripp v. State, 264 N.W.2d 213 (1978), 148, 180 Craig v. Jensen, 278 N.W. 545 (1938), 234 Culhane v. Equitable Life Assurance Society of the United States, 274 N.W. 315 (1937), 57, 77 Cummings v. Mickelson, 495 N.W.2d 493 (1993), 105–106, 109, 268

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D Dailey v. Ryan, 21 N.W.2d 61 (1945), 46 Darnall v. State, 108 N.W.2d 201 (1961), 139 Dean v. Coddington, 131 N.W.2d 700 (1964), 145 Department of Social Services of State ex rel. Wolf v. McCarty, 506 N.W.2d 144 (1993), 205 Diesel Machinery Inc. v. B. R. Lee Industries, Inc., 418 F.3d 820 (8th Cir. 2005), 120 Doe v. Nelson, 680 N.W.2d 302 (S.D. 2004), 95–96 Double Diamond Construction v. Farmers Coop. Elevator Assoc. of Beresford, 656 N.W.2d 744 (2003), 103 Driscoll v. Jones, 44 N.W. 726 (1890), 276 Dunker v. Brown Co. Board of Education, 121 N.W.2d 10 (1963), 48, 55 Duxbury v. Harding, 490 N.W.2d 740 (1992), 202, 204

E Egan Independent Consolidated School District v. Minnehaha County, 270 N.W. 527 (1936), 191 Eischen v. Minnehaha County, 363 N.W.2d 199 (1985), 147 Elbe v. Yankton Independent School Dist., 640 F. Supp. 1234 (D. S.D. 1986), 124 Engelcke v. Farmers State Bank of Canistota, 246 N.W. 288 (1932), 58 Equipment Manufacturers Institute v. Janklow, 300 F.3d 842 (8th Cir. 2002), 139 Ericson v. Weber, 748 N.W.2d 739 (2008), 122 Ewert v. Taylor, 160 N.W. 797 (1916), 189 Ex Parte Hawley, 115 N.W. 93 (S.D. 1908), 115n72

F Fairview Indep. School District v. County Board of Education of Hand County, 197 N.W.2d 413 (1972), 162 Farmers Educational and Coop Union v. Circuit Court of Charles Mix Co., 40 N.W.2d 402 (1949), 118 Farmers State Bank of Lane, South Dakota v. Erickson, 223 N.W. 306 (1929), 252 Farrar v. Britton Independent School District of Marshall County, 32 N.W.2d 627 (1948), 215 Federal Deposit Insurance Corporation of Washington, D.C. v. Ensteness, 4 N.W.2d 209 (1942), 252 First National Bank of Philip v. Temple, 642 N.W.2d 197 (2002), 128 Fisher v. Herseth, 374 F. Supp. 745 (D. S.D. 1974), 159 Flockhart v. Wyant, 467 N.W.2d 473 (S.D. 1991), 115n72 Fritz v. Fritz, 187 N.W. 719 (1922), 144

G Garrey v. Schnider, 105 N.W.2d 860 (1960), 76 Gasper v. Freidel, 450 N.W.2d 226 (1990), 86, 89 General Contractors of South Dakota, Inc. v. Schreiner, 492 N.W.2d 916 (1992), 188 Gilbert v. Flandreau Santee Sioux Tribe, 725 N.W.2d 249 (2006), 115n72, 126 Gilseth v. Risty, 193 N.W. 132 (1923), 260 Golden v. Oahe Enterprises, Inc., 295 N.W.2d 160 (1980), 240 Gould v. Pennington Co. Board of Equalization, 570 N.W.2d 846 (1997), 173–174 Gravning v. Zellmer, 291 N.W.2d 751 (1980), 59–60, 77

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Gray v. Gienapp, 727 N.W.2d 808 (2007), 48, 63, 68 Great Northern Ry Co. v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 99 N.W.2d 439 (1959), 242–243 Green v. Siegal, Barnett & Schutz, 557 N.W.2d 396 (1996), 149 Gross v. City of Bowdle, 182 N.W. 629 (1921), 215–216 Gross v. Solem, 446 N.W.2d 49 (1989), 129

H Haggart v. Alton, 137 N.W. 372 (1912), 196 Hancock v. Western South Dakota Juvenile Services Center, 647 N.W.2d 722 (2002), 149 Hannon v. Weber, 638 N.W.2d 48 (2001), 101 Hensley v. Yankton Independent School District, 227 N.W.2d 441 (1975), 117 High Elk v. State, 344 N.W.2d 497 (1984), 130 High-Grade Oil Company Inc. v. Sommer, 295 N.W.2d 736 (1980), 88 Himrich v. Walter, 262 N.W. 232 (1935), 139, 252 Hogen v. South Dakota State Board of Transportation, 245 N.W.2d 493 (1976), 55 Hohn v. Circuit Court of Davison County, 269 N.W. 77 (1936), 77 Home Lumber Company v. Heckel, 293 N.W. 549 (1940), 259 Homestake Mining Co. v. Johnson, 374 N.W.2d 357 (1985), 198 Hoogestraat v. Barnett, 583 N.W.2d 421 (1998), 269 Hopkins v. Glendenning, 299 N.W. 905 (1941), 252 Hurley v. State, 143 N.W.2d 722 (1966), 141

I In re A. Egan, 123 N.W. 478 (1909), 127 In re Certification of a Question of Law from U.S. Dist. Ct., Dist. of SD, 615 N.W.2d 590 (2000), 55, 64–65 In re Clouse’s Estate, 257 N.W. 106 (1934), 259 In re Davis, 681 N.W.2d 452 (2004), 259 In re Estate of Siebrasse, 640 N.W.2d 747 (2002), 118 In re Gorsuch, 75 N.W.2d 644 (1956), 127 In re Hughes, 244 B.R. 805 (Bkrcy. D. S.D. 1999), 116 In re Janklow, 589 N.W.2d 624 (1999), 104, 198 In re Kelley, 7 B.R. 384 (Bkrcy. S.D. 1980), 259 In re Limitation of Taxation, 54 N.W. 417 (1893), 186, 205 In re Matter of the Construction of Article III, Section 5 of the SD Constitution, 464 N.W.2d 825 (1991), 103–104 In re McKennan’s Estate, 126 N.W. 611 (1910), 187, 193 In re Oahe Conservancy Sub-District, 185 N.W.2d 682 (1971), 55, 83, 211, 237, 261 In re Opinion of the Judges, 182 N.W.2d 849 (1971), 104, 188, 222 In re Opinion of the Supreme Court Relative to Executive Order 73-1, 204 N.W.2d 184 (1973), 99 In re Request for Opinion of Supreme Court, 379 N.W.2d 822 (1985), 90 In re Request of Governor Janklow, 615 N.W.2d 618 (2000), 97 In re Rounds, 659 N.W.2d 374 (2003), 66, 97 In re State Bonds, 63 N.W. 223 (1895), 163–164, 172 In re State Warrants, 62 N.W. 101 (1895), 212 In re Watson, 97 N.W. 463 (1903), 145 In the Matter of Oahe Conservancy Subdistrict, 185 N.W.2d 682 (1971), 83

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Independent Community Bankers Assoc. of South Dakota, Inc. v. State by and through Meierhenry, 346 N.W.2d 737 (1984), 73, 75, 155

J Johnson v. Wells Fargo Company, 239 U.S. 234 (1915), 189 Jordheim v. Bottum, 85 N.W.2d 731 (1957), 239

K Kanaly v. State By and Through Janklow, 368 N.W.2d 819 (1985), 169–170, 228–229 Kane v. Kundert, 371 N.W.2d 172 (1985), 65, 98 Karcher v. Gans, 83 N.W. 431 (1900), 259 Katz v. South Dakota State Board of Medical and Osteopathic Examiners, 432 N.W.2d 274 (1988), 115–116 Kelo v. City of New London, 545 U.S. 469 (2005), 141n82 Kent v. United of Omaha Life Insurance Co., 430 F. Supp. 946 (D. S.D. 2006), 120 Kermmoade v. Quality Inn, 612 N.W.2d 583 (2000), 109 Kirschenman v. Hutchinson Co. Board of Commissioners, 656 N.W.2d 330 (2003), 57 Knowles v. United States, 829 F. Supp. 1147 (D. S.D. 1993), 79, 116 Knowles v. United States, 544 N.W.2d 183 (S.D. 1996), 115n71, 116n75, 120 Krier v. Dell Rapids TP., 709 N.W.2d 841 (2006), 142 Kringen v. Shea, 333 N.W.2d 445 (1983), 85 Kyllo v. Panzer, 535 N.W.2d 896 (1995), 86, 88, 151

L Landers v. Linn, 108 N.W.2d 340 (1961), 168, 172 Levasseur v. Wheeldon, 112 N.W.2d 894 (1962), 120 Lewis & Clark Rural Water System Inc. v. Seeba, 709 N.W.2d 824 (2006), 244 Lindekugel & Sons Inc. v. South Dakota State Highway Commission, 202 N.W.2d 125 (1972), 195 Lindstrom v. Goetz, 47 N.W.2d 566 (1951), 57 Little Thunder v. State of South Dakota, 518 F.2d 1253 (8th Cir. 1975), 159 Livestock State Bank v. State Banking Commission, 127 N.W.2d 139 (1964), 48 Lollich v. Hot Springs Independent School District, 201 N.W. 354 (1924), 215 Lovett v. Ferguson, 71 N.W. 765 (1897), 75 Loyal Order of Moose Lodge No. 1137 v. Pennington County, 566 N.W.2d 132 (1997), 192 Lyons v. Lederle Laboratories, 440 N.W.2d 769 (1989), 147

M Mackey v. Reeves, 175 N.W. 359 (1919), 188 Mapp v. Ohio, 367 U.S. 643 (1961), 138n85 Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976), 146n92 Matter of Advisory Opinion Concerning the Construction of HB 1255, 456 N.W.2d 546 (1990), 210–211, 291 Matter of Butte Co., 385 N.W.2d 108 (1986), 173 Matter of Certain Territorial Electric Boundaries v. Northwestern Public Service Company, 281 N.W.2d 65 (1979), 79 Matter of Certification of a Question of Law, 372 N.W.2d 113 (1985), 124

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Matter of Chamley, 349 N.W.2d 56 (1984), 120 Matter of Construction of Article III, Section 5, of the South Dakota Constitution, 464 N.W.2d 825 (1991), 104 Matter of Election Contest as to Reorganization of New Effington Indep. School District, 462 N.W.2d 185 (1990), 160 Matter of Estate of Washburn, 575 N.W.2d 245 (1998), 115, 115nn71–72 Matter of Guardianship of D.L.L., 291 N.W.2d 278 (1980), 264 Matter of Refusal of State Board of Equalization to Hear Appeal of Lake Poinsett Area Development Association, 330 N.W.2d 754 (1983), 189 Matthews v. Twin City Const. Co., 357 N.W.2d 500 (1984), 120 McClain v. Williams, 73 N.W. 72 (1897), 149n96 McDonald v. City of Chicago, IL, 130 S. Ct. 3020 (2010), McDonald v. School Board of Yankton Independent School Dist. No. 1, 246 N.W.2d 93 (1976), 124, 175 McFarland v. Barron, 164 N.W.2d 607 (1969), 102, 213 McFarland v. Keenan, 84 N.W.2d 884 (1957), 192 McIntyre v. Wick, 558 N.W.2d 347 (1996), 69 McMacken v. State, 320 N.W.2d 131 (1982), 76 Meierhenry v. City of Huron, 354 N.W.2d 171 (1984), 79, 187–189, 193, 210, 215–217 Meinders v. Weber, 604 N.W.2d 248 (2000), 138 Merrill v. Birhanzel, 310 N.W.2d 522 (1981), 79 Mettet v. City of Yankton, 25 N.W.2d 460 (1946), 215 Miles Laboratories v. Owl Drug Company, 295 N.W. 292 (1940), 245 Minnehaha Co. v. South Dakota State Board of Equalization, 176 N.W.2d 56 (1970), 74 Montana v. U.S., 450 U.S. 544 (1981), 282 Moran v. Rapid City Area School District No. 51-4, 281 N.W.2d 595 (1979), 117 Morrow v. Wipf, 115 N.W. 1121 (1908), 76

N Nader 2000 Primary Committee Inc. v. Hazeltine, 110 F. Supp.2d 1201 (D.S.D. 2000), 75 Nancolas v. Jones, 196 N.W. 749 (1924), 187 National Bank of South Dakota v. Leir, 325 N.W.2d 845 (1982), 87–88 National College of Business v. Pennington County, 146 N.W.2d 731 (1966), 191, 193 National Life Insurance Co. of Montpelier, Vermont v. Mead, 82 N.W. 78 (1900), 216 National Surety Company v. Starkey, 170 N.W. 582 (1919), 190, 193 Nebraska Electrical Generation and Transmission Coop Inc. v. Markus, 241 N.W.2d 142 (1976), 180 Nollan v. California Coastal Commission, 483 U.S. 825 (1987), 142, 142n88 Norbeck and Nicholson Co. v. State (II), 144 N.W. 658 (1913), 71 Norbeck and Nicholson Co. v. State, 142 N.W. 847 (1913), 71 Northwest South Dakota Production Credit Ass’n v. Dale, 361 N.W.2d 275 (1985), 117 Northwestern Bell Telephone Co. v. Chicago & Northwestern Transportation Co., 245 N.W.2d 639 (1976), 242 Northwestern Public Service Co. v. Cities of Chamberlain, Huron, Mitchell, Redford, Webster and Yankton, 265 N.W.2d 867 (1978), 55

O O’Toole v. Board of Trustees of South Dakota Retirement System, 648 N.W.2d 342 (2002), 101 Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (1981), 55, 85 Oien v. City of Sioux Falls, 393 N.W.2d 286 (1986), 86, 90, 149, 151

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Olson v. Guindon, 771 N.W.2d 318 (2009), 161 Op. Att’y Gen. 84-24 (1984), 71n43 Op. Att’y Gen. 85-28 (1985), 196 Op. Att’y Gen. 86-42 (1986), 177 Op. Att’y Gen. 87-02 (1987), 176 Op. Att’y Gen. 87-21 (1987), 177 Op. Att’y Gen. 88-51 (1988), 71n43 Op. Att’y Gen. 88-240 (1988) WL 483264, 210 Op. Att’y Gen. 89-09 (1989), 159 Op. Att’y Gen. 89-14 (1989), 166, 171 Op. Att’y Gen. 90-45 (1990), 71n44 Op. Att’y Gen. 92-04 (1992), 176 Op. Att’y Gen. 93-14 (1993), 159 Op. Att’y Gen. 97-06 (1997), 172 Op. Att’y Gen. 04-02 (2004), 226 Op. Att’y Gen. 08-06 (2008), 181 Opinion of the Judges, 166 N.W.2d 427 (1969), 67, 74 Opinion of the Justices, 203 N.W.2d 256 (1973), 93 Orr v. Kneip, 287 N.W.2d 480 (1979), 127

P Palmer v. State, 75 N.W. 818 (1898), 71 Parker v. Youngquist, 11 N.W.2d 84 (1943), 189, 194, 201 Peano v. Brennan, 106 N.W. 409 (1906), 265 Pennington Co. v. State ex rel. Unified Judicial System, 641 N.W.2d 127 (2002), 180 People in Interest of L.V.A., 248 N.W.2d 864 (1976), 116 People in Interest of Z.B., 757 N.W.2d 595 (2008), 147 Peterson Oil Company v. Frary, 192 N.W. 369 (1924), 189 Petition of CM Corporation, 334 N.W.2d 675 (1983), 191 Petition of Famous Brands Inc., 347 N.W.2d 882 (1984), 47, 102 Petition of N.C.B. Careers, Inc., 298 N.W.2d 526 (1980), 175 Phenix Ins. Co. of Brooklyn, N.Y., v. Perkins, 101 N.W. 1110 (1905), 73 Pietz v. State, 270 N.W. 648 (1936), 201 Pitts v. Larson, 638 N.W.2d 254 (2001), 70 Plains Commerce Bank v. Long Family Land and Cattle Company, 554 U.S. 316 (2008), 265, 282 Poppen v. Walker, 520 N.W.2d 238 (1994), 82–83 Potts v. Miller, 39 N.W.2d 667 (1959), 258

Q Queen City Fire Insurance Company v. Basford, 130 N.W. 44 (1911), 190

R Randall v. Weber, 655 N.W.2d 92 (2002), 130 Rapid City Journal v. Circuit Court, 283 N.W.2d 563 (1979), 126, 128 Read v. Jerauld County, 17 N.W.2d 269 (1945), 80 Request for Opinion, 379 N.W.2d 822 (1985), 90 Rice v. City of Watertown, 281 N.W. 116 (1938), 216 Ridgeland School District v. Biesmann, 21 N.W.2d 324 (1946), 215

3 0 0 

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Risse v. Meeks, 585 N.W.2d 875 (1998), 265 Risty v. Chicago, R.I. & P. Ry. Co., 297 F. 710 (8th Cir. 1924), 260 Robbins v. Rapid City, 23 N.W.2d 144 (1946), 215 Roddewig v. Kutcher, 2 N.W.2d 669 (1942), 145 Rodriguez v. Weber, 617 N.W.2d 132 (2000), 121 Romer v. Evans, 517 U.S. 620 (1996), 146n91 Ross v. Ward, 85 N.W. 182 (1901), 127 Ruel v. Rapid City, 167 N.W.2d 541 (1969), 197

S Schaffer v. Edward D. Jones & Co., 552 N.W.2d 801 (1996), 119 Schelle v. Foss, 83 N.W.2d 847 (1957), 165 Schiller Piano Co. v. Hyde, 162 N.W. 937 (1917), 239 Schlichenmayer v. Johnson, 141 N.W.2d 408 (1966), 159 Schmitt v. Nord, 27 N.W.2d 910 (1947), 144, 245 Schryver v. Schirmer, 171 N.W.2d 634 (1969), 84, 55–56 Schutterle v. Schutterle, 260 N.W.2d 341 (1977), 259 SD High School Interscholastic Activities Association v. St. Mary’s Inter-Parochial High School of Salem, 141 N.W.2d 477 (1966), 125, 175 Sigwald v. State, 208 N.W. 162 (1926), 195 Simmons v. Ericson, 223 N.W. 342 (1929), 174 Simons v. Kidd, 38 N.W.2d 883 (1949), 86, 150 Simpson v. Tobin, 367 N.W.2d 757 (1985), 75–76, 206 Sioux City Boat Club v. Mulhall, 117 N.W.2d 92 (1962), 46 Sioux Falls Argus Leader v. Miller, 610 N.W.2d 76 (2000), 103 Skoglund v. Staab, 312 N.W.2d 29 (1981), 128 Smith v. Goldsmith, 207 N.W. 977 (1926), 252 Smith v. Olson, 208 N.W. 585 (1926), 252 Smith v. Temple, 152 N.W.2d 547 (1967), 265 Smith v. Tosini, 48 N.W. 299 (1891), 275 Smith v. Ward, 197 N.W. 684 (1924), 159 Somers v. Somers, 146 N.W. 716 (1914), 258–259 South Dakota Assoc. of Tobacco and Candy Distributors v. State By and Through Dept. of Revenue, 280 N.W.2d 662 (1979), 77 South Dakota Auto Club Inc. v. Volk, 305 N.W.2d 693 (1981), 194, 242 South Dakota Board of Regents v. Meierhenry, 351 N.W.2d 450 (1984), 229 South Dakota Board of Regents v. Meister, 309 N.W.2d 121 (S.D. 1981), 99 South Dakota Department of Health v. Heim, 357 N.W.2d 522 (1984), 140 South Dakota Department of Health v. Owen, 350 N.W.2d 48 (1984), 119, 140 South Dakota Educational Association by and through Roberts v. Barnett, 582 N.W.2d 386 (1998), 77, 202–203 South Dakota Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583 (8th Cir. 2003), 248 South Dakota Hair Styling Inc. v. Minnehaha County, 227 N.W.2d 431 (1975), 192 South Dakota State Medical Association v. Jones, 146 N.W.2d 725 (1966), 192 Spangler v. City of Mitchell, 152 N.W. 339 (1915), 216 Specht v. City of Sioux Falls, 526 N.W.2d 727 (1995), 84 State College Development Association v. Nissen, 281 N.W. 907 (1938), 212 State ex rel. Ayers v. Kipp, 74 N.W. 440 (1898), 234 State ex rel. Baker v. Jameson, 38 N.W.2d 441 (1949), 121 State ex rel. Botkin v. Morrison, 249 N.W. 563 (1933), 60

t a b l e of c a s e s  State ex rel. Botkin v. Welsh, 251 N.W. 189 (1933), 145 State ex rel. Bryant v. Dolan, 249 N.W. 923 (1933), 229 State ex rel. Collins v. Halladay, 252 N.W. 733 (1934), 227 State ex rel. Dunker v. Spink Hutterian Brethren, 90 N.W.2d 365 (1958), 240 State ex rel. Jensen v. Kelly, 274 N.W. 319 (1937), 202, 204 State ex rel. Lamm v. Spartz, 255 N.W. 797 (1934), 80, 205 State ex rel. Larsgaard v. Larsgaard, 298 N.W.2d 381 (1980), 80 State ex rel. Lavin v. Bacon, 85 N.W. 605 (1901), 61 State ex rel. Mills v. Wilder, 42 N.W.2d 891 (1950), 221 State ex rel. Oster v. Jorgenson, 136 N.W.2d 870 (1965), 202, 204 State ex rel. Parker v. Youngquist, 11 N.W.2d 84 (1943), 187, 201–202 State ex rel. Payne v. Anderson, 181 N.W. 839 (1921), 96 State ex rel. Prchal v. Dailey, 234 N.W. 45 (1931), 162, 228–229 State ex rel. Smith v. Jameson, 19 N.W.2d 505 (1945), 76 State ex rel. Van Emmerik v. Janklow, 304 N.W.2d 700 (1981), 79 State ex rel. Walter v. Gutzler, 249 N.W.2d 271 (1977), 68–69 State ex rel. Wieber v. Hennings, 311 N.W.2d 41 (1981), 147 State ex rel. Wood v. Sheldon, 67 N.W. 613 (1896), 228 State Highway Commission v. Bloom, 93 N.W.2d 572 (1958), 141 State v. Apple, 759 N.W.2d 283 (2008), 123 State v. Ashbrook, 586 N.W.2d 503 (1998), 136 State v. Asmussen, 713 N.W.2d 580 (2006), 130 State v. Auen, 342 N.W.2d 236 (1984), 129 State v. Banks, 387 N.W.2d 19 (1986), 129 State v. Bowers, 498 N.W.2d 202 (1993), 129 State v. Bowker, 754 N.W.2d 56 (2008), 132 State v. Central Lumber Co., 123 N.W. 504 (1909), 245 State v. Cochran, 297 N.W.2d 483 (1980), 282 State v. Cody, 323 N.W.2d 863 (1982), 122 State v. Coe, 286 N.W.2d 340 (1979), 133 State v. Corle, 294 N.W.2d 799 (1980), 133 State v. Dickey, 459 N.W.2d 445 (1990), 132 State v. Dillon, 738 N.W.2d 57 (2007), 137 State v. Dornbusch, 384 N.W.2d 682 (1986), 130 State v. Douglas, 16 N.W.2d 489 (1944), 198 State v. Dove, 67 N.W.2d 917 (1955), 121 State v. Flittie, 318 N.W.2d 346 (S.D. 1982), 135 State v. Fogg, 115 N.W.2d 889 (1962), 129 State v. Geise, 656 N.W.2d 30 (2002), 145–146 State v. Gerdes, 252 N.W.2d 335 (1977), 148 State v. Goetz, 47 N.W.2d 566, 567 (1951), 61 State v. Goodroad, 521 N.W.2d 433 (1994), 129 State v. Groves, 473 N.W.2d 456 (1991), 133 State v. Guthrie, 631 N.W.2d 190 (2001), 109 State v. Haar, 772 N.W.2d 157 (2009), 137 State v. Haas, 8 N.W.2d 569 (1943), 122 State v. Hahn, 9 N.W.2d 502 (1943), 56 State v. Hanson, 278 N.W.2d 198 (1979), 122, 137 State v. Hatchett, 667 N.W.2d 680 (2003), 153 State v. Hejhal, 438 N.W.2d 820 (1989), 135n81 State v. Hejhal, 438 N.W.2d 820 (1989), 135

n 

3 01

3 0 2 

n

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State v. Hinz, 103 N.W.2d 656 (1960), 131 State v. Hirning, 592 N.W.2d 600 (1999), 136 State v. Holland, 346 N.W.2d 302 (1984), 133 State v. Jackson, 616 N.W.2d 412 (2000), 136 State v. Johns, 178 N.W. 945 (1920), 191 State v. Johnson, 739 N.W.2d 1 (2007), 132, 134 State v. Karlen, 589 N.W.2d 594 (1999), 129 State v. Kauffman, 108 N.W. 246 (1906), 131 State v. Knecht, 563 N.W.2d 413 (1997), 152–153 State v. Knoche, 515 N.W.2d 834 (1994), 131–132 State v. Kottman, 707 N.W.2d 114 (2005), 135 State v. Krana, 272 N.W.2d 75 (1978), 129 State v. Labine, 733 N.W.2d 265 (2007), 138 State v. Lane, 82 N.W.2d 286 (1957), 136 State v. Larson, 138 N.W.2d 1 (1965), 58 State v. Lockstedt, 695 N.W.2d 718 (2005), 137 State v. Madsen, 760 N.W.2d 370 (2009), 134 State v. Matteson, 205 N.W.2d 512 (1973), 76–77 State v. McCreary, 142 N.W.2d 240 (1966), 136 State v. Mellette, 92 N.W. 395 (1902), 80 State v. Meyer, 587 N.W.2d 719 (1998), 136–137 State v. Miller, 717 N.W.2d 614 (2006), 116 State v. Mitchell, 309 N.W.2d 829 (1981), 144 State v. Moeller, 616 N.W.2d 424 (2000), 129, 152 State v. Moschell, 677 N.W.2d 551 (2004), 47–48 State v. Muetze, 368 N.W.2d 575 (1985), 122 State v. Nagele, 129 N.W.2d 537 (1964), 129 State v. Nelson, 587 N.W.2d 439 (1998), 121 State v. Neville, 346 N.W.2d 425 (1984), 122, 131 State v. Nuss, 114 N.W.2d 633 (1962), 113, 115 State v. Opperman, 247 N.W.2d 673 (1976), 132, 135 State v. Owen, 729 N.W.2d 356 (2007), 264 State v. Patten, 694 N.W.2d 270 (2005), 130 State v. Piper, 709 N.W.2d 783 (2006), 152 State v. Rechtenbach, 650 N.W.2d 290 (2002), 138 State v. Roadifer, 346 N.W.2d 438 (1984), 132 State v. Rollinger, 314 N.W.2d 871 (1982), 139 State v. Ruth, 68 N.W. 189 (1896), 87, 166 State v. Schwartz, 689 N.W.2d 430 (2004), 134–135 State v. Secrest, 331 N.W.2d 580 (1983), 147–148 State v. Seidschlaw, 304 N.W.2d 102 (1981), 133 State v. Shearer, 548 N.W.2d 792 (1996), 138 State v. Smith, 473 N.W.2d 515 (1998), 79, 133 State v. Sorensen, 688 N.W.2d 193 (2004), 138 State v. South Dakota Rural Credit Board, 189 N.W. 704 (1922), 198, 206 State v. Taylor, 178 N.W. 985 (1920), 58 State v. Tiegen, 744 N.W.2d 578 (2008), 129 State v. Van Daalan, 11 N.W.2d 523 (1943), 124 State v. Violett, 111 N.W.2d 598 (1961), 129 State v. Walt, 278 N.W. 12 (1938), 59 State v. Weatherford, 416 N.W.2d 47 (1987), 121

t a b l e of c a s e s 

n 

State v. Weaver, 648 N.W.2d 355 (2002), 133 State v. Weekley, 240 N.W.2d 80 (1976), 133 State v. West, 260 N.W.2d 215 (1977), 133, 136 State v. Westerfield, 567 N.W.2d 863 (1997), 136 State v. Wikle, 291 N.W.2d 792 (1980), 129 State v. Wilson, 618 N.W.2d 513 (2000), 104, 106, 108–109 State v. Zoss, 360 N.W.2d 523 (1985), 122 Stavig v. Van Camp, 192 N.W. 760 (1923), 261 Stormo v. Strong, 469 N.W.2d 816 (1991), 109 Stumes v. Delano, 508 N.W.2d 366 (1993), 138 Sunnywood Common School Dist. No. 46 v. Co. Bd. of Educ. of Minnehaha Co., 131 N.W.2d 105 (1964), 55 Swanson v. State Department of Commerce & Regulation, 417 N.W.2d 385 (1987), 117

T Thares v. Brown Co. Board of Equalization, 616 N.W.2d 380 (2000), 173–174 Thompson v. Commonwealth Finance Corp., 191 N.W. 447 (1922), 240 Tidball v. Miller, 32 N.W.2d 683 (1948), 187 Torigian v. Saunders, 97 N.W.2d 586 (1959), 188

U United States v. Virginia, 518 U.S. 515 (1996), 146n93

V Vesley v. Charles Mix County, 287 N.W. 51 (1939), 140 Viland v. Board of Education, 158 N.W. 906 (1916), 80 Vitek v. Bon Homme Co. Board of Commissioners, 644 N.W.2d 231 (2002), 57

W Washington v. Glucksberg, 521 U.S. 702 (1997), 115n72 Wegleitner v. Sattler, 582 N.W.2d 688 (1998), 48 Weiker v. Solem, 515 N.W.2d 827 (1994), 133 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), 113n70 West Two Rivers Ranch v. Pennington County, 650 N.W.2d 825 (2002), 173, 189 Wheelon v. South Dakota Land Settlement Board, 181 N.W. 359 (1921), 187, 211 White Eagle Oil and Refining Company v. Gunderson, 205 N.W. 614 (1925), 188 White Eagle v. State, 280 N.W.2d 659 (1979), 144 Whittaker v. City of Deadwood, 122 N.W. 590 (1909), 191 Wigg v. Sioux Falls School District, 382 F.3d 807 (8th Cir. 2004), 125 Wilson v. Hogan, 473 N.W.2d 492 (1991), 90 Wisner v. Pavlin, 719 N.W.2d 770 (2006), 259 Worzella v. Board of Regents, 93 N.W.2d 411 (1958), 229 Wright v. Lee, 51 N.W. 706 (1892), 239 Wuest v. Winner School District, 607 N.W.2d 912 (2000), 117 Wilson v. Hogan, 473 N.W.2d 492 (1991), 90 Wyatt v. Kundert, 375 N.W.2d 186 (1985), 56

303

n Index

Abatement of public nuisance, 118–119 Absentee voting, 159–160 Access to courts, 149–151 Accused, rights of, 114, 128–130 Acts, legislative. See Legislation Adjournment of legislative houses, 73 Administrative rules, suspension of, 91 Advisory opinions of Supreme Court, 103–104 Age requirements governor and lieutenant governor, 94 judges, 105 legislators, 63 voters, 158 Agriculture. See Farms Aliens equal protection challenges, 147 property rights, 142–143 suffrage, 158 Amendment C, 261 Amendment E, 248–249 Amendment H, 245 Amendment of state constitution, 154–155, 267–269 Constitutional Revision (1972), 34–39, 108 description of amendment incorporation into Constitution, 34–35n265 by initiative, 54 passage rate of amendments, 37n269 popular call for, 39 ratification, 269 American Institute of Architects standard form, 84 Annual property tax, 185–186 Annual reports, corporate, 248–249 Annual statement of state receipts and expenditures, 198 Anti-corruption concerns. See Bribery and corruption Antitrust and restraint of trade, 245 Apportionment of fund income among schools, 166

Apportionment of legislative districts, 64–65, 253, 280 Appraisal of school lands, 167 Appropriations. See Public finance and expenditures Arbitration involving municipalities, 84 Armed forces. See Military Arms, right to bear, 112, 153–154 Armstrong, Moses, 4 Arrests legislative privilege from arrest, 70 militia privilege from arrest, 232 search and seizure, 134 Assembly and association, right of, 125–126 Assessor, office of, 258 Attainder bills, prohibited, 151–152 Attorneys disbarment of, 127 effective assistance of counsel, 128, 130 right to counsel, waiver of, 122, 130 Audit of losses to permanent educational funds, 172 Australian Ballot, 32 Automobile exception to warrant requirement, 137 Bad Check Law, 144 Bail excessive bail, prohibited, 152–153 rights, 130–131, 152 Balanced budget, 207 Ballots. See Elections Banking, 251–252 general banking law, 251 liability of banking corporation shareholders, 252 taxes on banks and bankers, 190 twenty-year limit on bank operations, 251 Banking Act (1891), 115 Beadle, W. H. H., 5–6, 9, 12, 13, 17, 161 Benevolent organizations, tax exempt, 192 Bill of attainder, prohibited, 151–152 305

3 0 6 

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  I n de x

Bill of Rights, 111–155 access to courts, 149–151 accused, rights of, 114, 128–130 amendment of state Constitution, 154–155 arms, right to bear, 153–154 assembly, right of, 125–126 attainder bills, prohibited, 151–152 bail, rights to, 130–131, 152 contract obligations, impairment of, 138–139 criminal proceedings, due process, 114, 121–123 cruel punishments, prohibited, 152–153 damages awards, due process, 119–120 debt, no imprisonment for, 143–144 double jeopardy, 133 due process, 114–119 elections and voting rights, 148–149, 155 eminent domain, 139–142 equal privileges and immunities, 145–148 excessive fines or bail, prohibited, 152–153 ex post facto laws, 138–139 freedom of religion, 123–125 freedom of speech, 126–127 fundamental principles, 155 habeas corpus, 130–131 highways or railways, fee in, 139–142 indictment or information, 133–134 inherent rights, 112–114 jury trial, 126–128 maintenance of free government, 155 military subordinate to civil power, 144 petition, right of, 125–126 political power inherent in people, 154–155 private property not taken without just compensation, 139–142 privilege or immunity, 138–139 procedural due process, 117–118 proposed, 16, 24 quartering of soldiers, 144 remedies for injuries, 149–151 resident aliens’ property rights, 142–143 right-to-work guarantee, 120–121 search and seizure, 134–138 secrecy of ballots, 155. See also Elections self-incrimination, 131–133

state as part of United States, 154–155 substantive due process, 114, 115–117 suffrage, right of, 148–149 suspension of laws prohibited, 151 taxation, requirements of uniformity and consent, 144–145 treason, 154 truth as defense, 126–127 Bills, legislative. See Legislation Bismarck, selection as capital, 7–8, 13 Black Hills Gold Rush, 5, 81 Blaine, James, 29 Blaine Amendment, 28–29, 124 Blair, Henry, 28 Board of Charities and Corrections, 227–228 Board of Regents. See Regents, Board of Bonds indebtedness and issuance of, 239–240 indebtedness created by tax incremental bonds, 215–216 refunding bond issue authorized for territorial debt payment, 220 territorial recognizances, bonds, obligations, and undertakings, continued validity of, 276 Boundaries of state, 45–46 Branches of government. See also Executive Department; Judicial Department; Legislative Department separation of powers, 47–49 Bribery and corruption legislators, 51–52, 90–91 in statehood formation, 16, 19 Buchanan, James, 3 Campbell, Hugh, 5, 13, 14, 15, 22 Cape, William, 34n265, 112 Capital punishment, 152 Cement enterprises, 90, 221, 225 Census as basis for reapportionment, 64–65 Charitable gifts for educational purposes, 168–170 Charitable institutions, 192, 227–228 Charters. See Corporations Chief justice, 38, 102, 106, 107 Church, Louis, 11, 13 Circuit Courts, 31–32, 102, 105–108 Citizens League, 13–14 Civic republicanism, 155

I n de x   n   3 0 7

Civil proceedings. See also Damages medical malpractice. See Medical malpractice claims right to jury trial, 127 Civil unions, 261 Clemency, 95–96 Cleveland, Grover, 11, 12, 27 Coal Mining Commission, 223 Coal mining enterprises, 222–223 Coal supply from state lands, 221 Coat of arms of state, 257 Combinations in restraint of trade, prohibited, 245 Commerce Clause, 248 Commissioner of school and public lands, 98, 166, 171, 283 Common carriers as corporations, 242–243 Compact with United States, 263–265 Compensation extra compensation prohibited, 205–206 legislators, 66–67 military and war relief personnel, 223–224 salary of constitutional officers, 80, 205–206, 257–258 takings to pay. See Eminent domain veterans and deceased veterans’ dependents bonus, 224–225 Condemnation proceedings. See Eminent domain Conflicts of interest legislators, 70–71 making profit from use of public monies, 197–198 Confrontation, right to, 128 Congressional apportionment. See Apportionment of legislative districts Congressmen, U.S. election at large, 253 first election of, 280 term limits for, 92 Conscientious objectors, 232 Constitution, state. See also Amendment of state constitution; Bill of Rights arranging, amendment rejected for, 267–268 Constitutional Revision (1972), 34–39 criticisms of, 35–36 election for adoption of (1889), 276–279, 283

enrollment of, 284 obsolete provisions, 35, 35n266 ratification (1883), 17–20 Constitution, U.S. See also specific amendments arms, right to bear, 153 assembly and association, freedom of, 126 Bill of Attainder Clause (Article I, Section 9), 151–152 Bill of Rights, 111 compared to state constitution, 55, 112, 126, 128, 141 contract clause, 139 cruel and unusual punishment, 152–153 dormant Commerce Clause, 248 elections, 157 equal privileges and immunities, 145 Establishment Clause, 124–125, 174–176 ex post facto laws (Article I, Section 10), 138 Free Exercise Clause, 123–125 free speech, 111 habeas corpus (Article I, Section 9), 130 one-person/ one-vote rule, 65, 148 Privileges and Immunities Clause (Article IV, Section 2), 154 search and seizure, 134–137 self-incrimination, 131 separation of powers, 68 speech, freedom of, 126–127 taking without just compensation, prohibited, 139–141, 140 treason (Article III, Section 3), 154 Constitutional conventions, 13–34 debate topics, 23–26, 31–33 Huron Convention (1883), 8, 13–14 popular call for, 39 ratification campaign (1883), 17–20 rejection of revision to, 268–269 Sioux Falls Convention (1883), 14–17 Sioux Falls Convention (1885), 20–23 Sioux Falls Convention (1889), 12, 26–33. See also Territorial status for transition provisions to statehood Constitutional Revision Commission, 34, 37

3 0 8 

n

  I n de x

Contracts contract clause, impairment of obligations, 138–139, 249 freedom of contract, 113 legislators and state or county contracts, 70–71 unauthorized contracts, 205–206 Conventions. See Constitutional conventions Corporations, 237–249 annual reports, 248–249 charters, legislature’s power to alter, revise, or annul, 240 charters to specify business, 239 combinations in restraint of trade, prohibited, 245 common carriers, 242–243 defined, 244–245 directors or managers, shareholder election of, 238 eminent domain applicable to, 238 farming by corporate or syndicate, 246–248 foreign corporations, place of business and authorized agent required, 239 indebtedness and issuance of stocks or bonds, 239–240 invalidation of charters without bona fide organization and business, 237–238 monopolies and trusts, prohibited, 245 police power and, 238 railroads and railways, 241–244 real estate holdings, 239 special laws, prohibited, 237–238 state-controlled corporations, 237 in statehood formation, 15–16 street railroad right, local consent required for grant of, 240–241 taxation on, 187, 190 telegraph lines, 241 Corruption. See Bribery and corruption Counties. See also Local government investment of permanent school and endowment funds, 289 taxes, 23 unorganized counties, 180 Courts. See Judicial Department; specific courts Criminal conviction, disqualification from legislative office for, 63

Criminal proceedings accused, rights of, 114, 128–130 bail, 130–131, 152 double jeopardy, 133 due process, 114, 121–123 effective assistance of counsel, 128, 130 exculpatory evidence, disclosure of, 121–122 grand jury, 134 guilty pleas, 122–123 indictment or information, 133–134 privilege from arrest, 70 right to counsel. See Right to counsel right to jury trial, 127–128, 129 search and seizure, 134–138 self-incrimination, 131–133 speedy trial, right to, 129 unauthorized use of public money as felony, 197–198 venue, 129 voluntariness of confession, 132–133 Cruel punishments, prohibited, 152–153 Dakota Territory. See Territorial status Dakota Territory (Lamar), 34 Damages punitive damages, 119–120 state highway fund paying, 193, 195 statutory damage caps, 120 tort actions, 101 Deadwood, 81–82 Death penalty, 152 Debt. See Indebtedness; Public indebtedness Declaratory judgment actions, 128 Defense of state, 209–211 appropriations for, 205–206 Defense of truth, 126–127 Delegation of legislative power, 48, 55–56, 83 Directors, shareholder election of, 238 Disbarment of attorney, 127 Disenfranchisement, 159 Domestic partnerships, 261 Dormant Commerce Clause, 248 Double jeopardy, 133 impeachment liability, 235 Drainage of agricultural lands, 260 Driving-while-intoxicated trial, 122 Due process, 114–120 anti-corporate farming provisions, 249

I n de x   n   3 0 9

damages awards, 119–120 police power and, 113 procedural, 117–118 property deprivation, 140 substantive, 114, 115–117 Economic liberty, 112, 113 Edgerton, Judge, 22 Education and school lands, 161–177. See also Sectarian schools apportionment of fund income among schools, 166 appraisal of school lands, 167 audit of losses to permanent educational funds, 172 commissioner of school and public lands, 98, 166, 171, 283 constitutional debate over funding, 22 county investment of permanent school and endowment funds, 289 free public schools, 28, 161–162, 282 governor’s disapproval of sale, lease, or investment, 172 grant of school lands, 28n214 interest in sale of school equipment, prohibited, 176 investment of permanent educational funds, 171–172, 289 lease of school lands, 170 mineral rights, 31, 176–177 mining and metallurgy to be taught in state institution, 230 perpetual trust fund for maintenance of public schools, 162–165 perpetual trust fund from proceeds of grants and gifts, 168–170 protection and defense of school lands, 172 Regents, Board of, 99, 212, 228–230 sale of school lands, 167–170, 172 school districts, formation of, 162 statehood linked to saving school lands, 5n18, 6, 9, 9n46, 12, 17, 26, 28, 169 superintendent of public instruction, 98, 283 taxation to support schools, 173–174 tax exempt status of schools, 192 territorial trust fund, 226 textbooks, loan to non-public school children, 124, 175, 177

trespassers’ claims, 171 uniform system of free public schools, 161–162, 282 Education enhancement trust fund, 207 Effective assistance of counsel, 128, 130 Effective date of acts, 77–78 Eighth Amendment, 152–153 Elections, 148–149, 155, 157–160 absentee voting, 159–160 administration of elections, 159–160 Constitution’s adoption, election for (1889), 276–279, 283 disenfranchisement, 159 executive offices, 94 first election, ballot for (1889), 283–284 frequency, 157, 283 initiative and referendum, 39, 52–54, 56–62 military members, voting by, 159–160 nomination of candidates, 159–160 one-person/ one-vote rule, 65, 148–149 residence requirements for voting, 159–160 returns, each house as judge of, 67–69 revision by amendment (1974), 157 secrecy of ballots, 32, 155, 159–160 suffrage, right of, 39, 148–149, 157. See also Women’s suffrage voter qualifications, 158–159 voter registration, 159–160 voting rights, 157 Electric utilities, 79–80, 221–222 Elevators and warehouses, 291 Eleventh Amendment, 85 Emergency arising from enemy attack, 91 Emergency clause for immediate enactment, 77–78 Emergency exception for initiative and referendum, 60–62 Eminent domain, 24–25, 139–142 corporations subject to, 238 exception to sovereign immunity, 85 municipal, 244 state-controlled corporations, 237 Enabling Act (1889), 12, 27, 28, 169 Enacting clause of a law, 74 Enemy attack, legislative powers in emergency, 91 Equal privileges and immunities, 79, 145–148

310 

n

  I n de x

Equal Protection Clause. See Fourteenth Amendment Establishment Clause, 124–125, 174–176 Ethanol incentive tax, 194, 214 Excessive fines or bail, prohibited, 152–153 Excise taxes, 58, 144, 245 Exculpatory evidence, disclosure of, 121–122 Executive Department, 93–99. See also Governor; Lieutenant governor appointment and removal power, 99 Constitutional Revision (1972), 37 executive power, 93 powers and duties of other executive offices, 98 qualification, election, and term, 94 reorganization, 98–99 succession of executive power, 97–98 veto power, 96–97 Ex post facto laws, 138–139 Farmers’ Alliance, 10, 28, 33, 52–53 Farms agricultural processing facilities, 291 corporate or syndicate farming, 246–248 drainage of agricultural lands, 260 farm loans, 289 hail insurance, 261 irrigation of agricultural lands, 260–261 marketing of agricultural products, 291 taxation of, 173–174 technical and marketing assistance to producers of certain crops, 79 Federal Deposit Insurance Corporation, 252 Fifteenth Amendment, 157 Fifth Amendment, 131, 134, 139, 141–142 Firearm possession, 154 First Amendment, 123–126 Establishment Clause, 124–125, 174–176 freedom of assembly and association, 126 Free Exercise Clause, 123–125 Flouring mills, 291 Foreign corporations, place of business and authorized agent required, 239 Forfeiture of office for false swearing, 67 Form of government, right to alter or reform, 22

Fourteenth Amendment, 114, 115, 115n72, 145, 158–159, 249 Fourth Amendment, 134–138 Fraternal benefit societies, 80 Freedom of contract, 113 Freedom of religion, 123–125, 281 Freedom of speech, 112, 126–127 freedom of debate in legislature, 70 Free Exercise Clause, 123–125 Fuel taxes, 188, 193–195 Gamble, John, 17 Games of chance, 81–83 Governor clemency power, 95–96 compensation, 258 disapproval of sale or lease of school lands, 172 elected as team with lieutenant governor, 37, 94 executive power vested in, 93 powers and duties of, 94–96 qualification, election, and term, 94 succession when vacancy, 97–98 tenure of first governor, 283 veto power, 96–97 Grand jury, 134 Granger organization, 52. See also Farmers’ Alliance Great Depression, 57 Guilty pleas, 122–123 Habeas corpus, 130–131 Habitual offender statute, 139 Hail insurance, 261 Hale, Senator, 11 Harrison, Benjamin, 11, 12, 26, 29 Health care trust fund, 206 Highways and roads appropriations for construction, 221 damage from change in street grade or resurfacing, 141–142 damages paid out of state highway fund, 193, 195 fee in, 139–142 railways deemed to be public highways, 242 Home loans by state, 223 Home rule, 39, 180–181 Homestead exemption, 258–259

I n de x   n   311

House of Representatives, state. See Legislation; Legislative Department House of Representatives, U.S. election at large, 253 first election of, 280 term limits for, 92 Howard, William, 5, 13

self-insurance and liability insurance purchase by state, 90 Intergovernmental cooperation, 39, 181 Investment of permanent educational funds, 171–172 Iowa Constitution, 18, 22, 27 Irrigation of agricultural lands, 260–261

Idaho Territory, 4 Illinois Constitution, 16, 18, 21, 23, 27, 33, 52 Immunity equal privileges and immunities, 79, 145–148 Legislative Department, 90–91 Impeachment and removal from office, 233–235 House power of impeachment, 233 lieutenant governor not to sit on court in governor impeachment trial, 235 officers subject to, 234 removal of officers not subject to impeachment, 234 same offense, no second impeachment liability, 235 service of copy of impeachment, 235 suspension of duties between impeachment and acquittal, 235 trial of impeachment, 233–234 Indebtedness of corporations, 239–240 no imprisonment for, 143–144 public. See Public indebtedness Indian Civil Rights Act, 264 Indian Gaming Regulatory Act (1988), 82 Indian lands, 28, 264, 281–282 Indictment or information, 133–134 Inherent rights, 112–114 Inheritance tax, 118, 199 Initiative and referendum, 39, 52–54, 56–62 emergency basis for, 60–62 procedure, 56, 62 public peace, health, or safety laws exempt from, 57 signatures on petition for, 62 support of state government laws exempt from, 58–60 Insurance hail insurance, 261

Jayne, William, 3 Judicial Department, 101–109 access to courts, 149–151 administration, 107–109 chief justice, 38, 102, 106, 107 Circuit Courts, 31–32, 102, 105–108 compensation of judges, 258 Constitutional Revision (1972), 38, 108 judicial powers, 101–102 jurisdiction of courts. See Jurisdiction of courts limited jurisdiction courts, 102–103 Qualifications Commission, 106–107 qualifications of judicial personnel, 105 removal of judges, 38, 107 restrictions, 107 rule-making power, 109 selection of judges, 105–106 Supreme Court, 21–22, 38, 102, 283 transition after 1972 amendment, 109 unified system, 38, 101 Judicial Qualifications Commission, 106–107 Jurisdiction of courts, 103–104 Indians, disputes with, 265 limited jurisdiction courts, 102–103 Jury trials, 127–128 criminal cases, 129 right to, 121, 127–128 Justice of the Peace, 102 Kidnapping, 121, 122 Kingsbury, George W., 29 Knights of Labor, 52, 53 Lamar, Howard, 12, 18n120, 34 Lansing, L. W., 18 Lauck, Jon, 34 Lease of school lands, 170 Lee, Alton, 33–34 Lee, Andrew, 53

31 2 

n

  I n de x

Legislation amendment in other house, 75 appropriation bills, 202–205 effective date of acts, 77–78 emergency clause for immediate enactment, 77–78 enacting clause, 74 enactment challenges, 72, 74 incorporation by reference precluded, 73–74 modified enrolled bill rule, 73, 97 one subject per title and scope of law, 75–77 origin of bills, 75 private and special laws, prohibited, 21, 27, 52, 78–80 reading of bills, 73–74 signing of bills and resolutions, 74–75 Legislative Department, 51–92. See also Legislation adjournment of legislative houses, 73, 281 apportionment of state legislature, 253, 280 bribery and corruption provisions, 51–52, 90–91 compelling testimony, 90–91 compensation, 66–67 contracts with state or county, 70–71 delegation of power, 48, 55–56, 83 disqualification for conviction of crime, 63 election returns, each house as judge of, 67–69 eligibility for office, 63, 69 enemy attack, legislative powers in emergency, 91 filling vacancies, 70 first assembly (1889), 280 first election, certification of senator or representative from multi-county district, 279 forfeiture of office for false swearing, 67 freedom of debate, 70 games of chance prohibited, 81–83 immunity from prosecution, 90–91 impeachment power of House, 233 ineligibility for other office, 21, 70 initiative and referendum, 39, 52–54, 56–62

introduction and history, 51–54 legislative journals, 71–72, 74 legislature and legislative power, 54–56 lieutenant governor as president of senate, 97 majority assent, 74 municipal powers denied to private organizations, 83–85 number of legislators, 62–63 oath of office, 67, 280 officers and employees, 67–69 open legislative sessions, 73 private and special laws, prohibited, 21, 27, 78–80 privilege from arrest, 70 qualifications of members, 48, 63, 67–69 quasi-legislative power, 55, 83, 85 quorum, 67–69 reapportionment, 64–65 recording of votes, 74 regular annual sessions, 51, 66–67 release of debt to state or municipality, 80–81 rules of proceedings, 67–69 special sessions upon petition, 91–92 suits against the state, 85–90 suspension of administrative rules and regulations, 91 term of office for first elected legislators, 283 travel reimbursement, 66 viva voce voting by legislators, 72–73 Legislative journals, 71–72, 74 Lieutenant governor elected as team with governor, 37, 94 not to sit on court in governor impeachment trial, 235 powers and duties of, 97 as president of senate, 97 qualification, election, and term, 94 tenure of first lieutenant governor, 283 Lincoln, Abraham, 3 Liquor, state control of, 287. See also Prohibition Local government, 179–181. See also Municipalities and political subdivisions Constitutional Revision (1972), 38–39 home rule, 39, 180–181 intergovernmental cooperation, 39, 181

I n de x   n   313

local initiatives to provide for cooperation and organization of local governmental units, 39, 181 organization of, 179–180 in territorial period, 4 Lottery, state, 82–83 Loucks, Henry, 53 Marriage, defined, 261 Married women’s rights, 259–260 Medical malpractice claims, 79, 120, 147 Mellette, Arthur, 15, 17, 29 Military compensation, 223–224 federal jurisdiction over military forts, 282 quartering of soldiers, 144 subordinate to civil power, 144 territorial civil and military officers, continuance under state, 276 veterans and deceased veterans’ dependents bonus, 224–225 voting by service personnel, 159–160 Militia, 23–24, 231–232 Mineral rights of school lands, 176–177 Mining and metallurgy to be taught in state institution, 230 Ministerial acts, liability for, 86–88 Minnesota Constitution, 18, 22, 23, 27, 52 Minority representation, rejected, 30, 273 Miranda warnings, 132 Missouri River forming boundary, 46 Modified enrolled bill rule, 73, 97 Monopolies and trusts, prohibited, 245 Motor vehicle and fuel taxes, 59, 193–195 Municipalities and political subdivisions binding arbitration, 84 Constitutional Revision (1972), 38–39 debt limitations on, 16, 32, 214–217 eminent domain, 244 home rule, 39, 180–181 indebtedness limitations, 211 public property, exemption from taxation, 190–191 release of debt to state or municipality, 80–81 sovereign immunity, 86 taxes for, 23, 196–197, 217 Municipal powers denied to private organizations, 83–85

Name of state, 45 Native Americans. See Indian lands Nebraska boundary, 46 Nebraska Constitution, 16 Negligent performance of ministerial acts, 87, 88 Nineteenth Amendment, 157 Ninth Amendment, 155 Nuisance abatement, 118–119, 140 Oath of office, 258 legislators, 67, 280 Occupational taxes, 189 Omnibus Bill (1889), 17, 27 One-person/one-vote rule, 65, 148–149 Open courts provision, 149–151 Ordway, Governor, 7–8, 13, 15, 17, 19–20 Ordway-Pettigrew feud, 8 Packing houses, 291 Pardon and parole power, 95–96 Parochial schools. See Sectarian schools Pennsylvania Constitution, 16, 18, 22, 27, 33, 52, 83 Personal property exemption, 191–193 Petition, right of, 125–126 Pettigrew, Richard, 8, 13, 19 Pierce, Governor, 13 Pierre, 7, 255 Plain view doctrine, 137 Police power, municipal exercise of, 238 Political power inherent in people, 154–155 Popular sovereignty, 22 Populist Party, 53 Powers of government, 47–49 Preamble, 43 revisions rejected, 39, 43–44 Press, freedom of, 126–127 Privilege from arrest, 70 Privilege or immunity, 138–139, 249 Procedural due process, 117–118 Prohibition amendment enacting, 30 repealed, 271 in statehood debate, 14, 17, 23 Promissory notes, 239–240 Property rights of married women, 259–260 of resident aliens, 142–143

314 

n

  I n de x

Public accounts. See Public finance and expenditures Public benefit rule, 141 Public employees and sovereign immunity, 86–88 Public finance and expenditures, 201–207. See also Taxation and revenue annual statement required, 206 appropriation and warrant required for payment from treasury, 201–202 appropriation bills, 202–205 balanced budget, 207 compensation of officers, 205–206 defense of state, appropriations for, 205–206 education enhancement trust fund, 207 extra compensation prohibited, 205–206 health care trust fund, 206 purpose of appropriation, 188 unauthorized contracts, 205–206 Public health, safety, or welfare elimination of public nuisance, 118 laws exempt from initiative and referendum, 57 legislative role to protect, 113 Public indebtedness, 209–226 adjustment of territorial debts and liabilities, 217–220 cement enterprises, 221, 225 coal mining enterprises, 222–223 coal supply from state lands, 221 defense of state, 209–211 educational support from trust fund, 226 electric power enterprises, 221–222 home loans by state, 223 internal improvements, 16, 223 irrepealable tax to repay, 211–214, 217 maximum indebtedness, 33, 209–214 military and war relief personnel compensation, 223–224 municipalities and political subdivisions, debt limitations on, 16, 32, 214–217 refunding bond issue authorized for territorial debt payment, 220 release of debt to state or municipality, 80–81 road construction, appropriations for, 221 rural credits, 209–211

state debt in addition to territorial debt, 214 state enterprises, 209–211 state obligation to pay territorial debt, 28, 214, 220, 281–282 trust fund created from proceeds of state cement enterprises, 225 veterans and deceased veterans’ dependents bonus, 224–225 Public property, exemption from taxation, 23, 28, 190–191 Public schools. See Education and school lands Public Utilities Commission, 118, 139, 243 Public works, cap on spending for, 16 Punitive damages, 119–120 Qualifications Commission, 106–107 Quartering of soldiers, 144 Quasi-legislative power, 55, 83, 85 Race discrimination, 153 Railroad Authority, 59 Railroads and railways constitutional ratification and, 18–19 corporate structure of, 241–244 crossings, 243 fee in, 139–142 rate discrimination prevention, 244 right to construct and operate, 243 in statehood formation, 16 state regulation of, 59 street railroad right, local consent required for grant of, 240–241 in territorial period, 4, 6, 10, 11 Rational basis test, 147 Real property classification of property for taxation, 186–190 of corporations, 239 Reapportionment, 64–65 Redistricting, 104 Referendum procedures. See Initiative and referendum Regents, Board of, 99, 212, 228–230 Religion, freedom of, 123–125, 281 Religious properties, tax exempt, 191–192 Remedies for injuries, 149–151 Removal. See also Impeachment and removal from office

I n de x   n   31 5

governor’s removal power, 99 judges, 38, 107 officers not subject to impeachment, 234 Republican National Convention (1888), 12 Republican Party Blaine as choice for presidential nominee, 29 initiative and referendum adoption, support for, 53 majority in Congress (1888) when South Dakota statehood approved, 12, 26–27 majority in state legislature, 20, 34 minority in Congress (early 1880s) when South Dakota statehood rejected, 10–11, 19, 21 Ordway-Pettigrew feud over control of, 8 Residence requirements judges, 105 legislative office, 63 voters, 158–159, 159–160 Resident aliens’ property rights, 142–143 Retired judges, 108 Revenue. See Taxation and revenue Revision (1972), 34–39 Right to counsel criminal cases, 128 effective assistance of counsel, 128, 130 waiver of, 122, 130 Right-to-work guarantee, 112, 114, 120–121 Ripper clause, 84 Roads. See Highways and roads Robinson, Doane, 14, 30 Rural credits, 209–211 The Ruralist (agrarian reform newspaper), 53 Salary. See Compensation Schedule and ordinance, 275–286 School buses, private school use of, 176 School for the Deaf and the School for the Blind, 227, 228 School of Mines and Technology, 228 Schools. See Education and school lands Seal of state, 257 Search and seizure, 134–138 Seat of government, 255–256

election procedure when no majority vote, 256 permanent, 255–256 temporary, 255, 278 Second Amendment, 153 Sectarian schools public support prohibited, 28, 125, 174–176 textbooks, loan to, 124, 175, 177 Self-defense, 154 Self-incrimination, 131–133 Senate, state. See Legislation; Legislative Department Senators, U.S. first election of, 280 term limits for, 92 Separation of powers, 47–49, 55, 68, 83 Service of copy of impeachment, 235 Sheldon, Stewart, 5n18 Sioux Falls Regional Emergency Medical Services Authority, 84 Sixth Amendment, 128 South Dakota Lottery, 82–83 Sovereign immunity, 85–90, 149, 151 Special appropriations, 204 Special assessments for local improvements, 196–197 Special fund doctrine, 212–213 Speech, freedom of, 126–127 Speedy trial, right to, 129 Stahl, James, 19 State as part of United States, 154–155 State College Development Association, 212 State-controlled corporations, 237 State employees and sovereign immunity, 86–88, 151 State enterprises, 209–211 State High School Interscholastic Activities Association, 125, 175 Statehood, history of, 3–13. See also Constitutional conventions; Territorial status Enabling Act (1889), 12, 27, 28, 169 factors pushing for, 4–6, 8–10 obstacles to, 10–12 ratification campaign (1883), 17–20 school lands and, 5n18, 6, 9, 9n46, 12, 17, 26, 28, 169 statehood achieved, 12–13 territorial status, 3–8

316  

n

  I n de x

State institutions, 227–230 charitable and penal institutions, 227–228 educational institutions, board to govern, 228–230. See also Education and school lands mining and metallurgy to be taught in state institution, 230 State officers. See also specific office first election of (1889), 276–278 tenure, 282–283 State penitentiary, twine and cordage plant, 185 Statutes of limitations, 150–151 Strict scrutiny, 124, 146–147 Sua sponte jurisdiction of Supreme Court, 103 Subject matter jurisdiction, 103 Substantive due process, 114, 115–117 Succession of executive power, 97–98 Suffrage, right of, 16, 39, 148–149. See also Women’s suffrage Suits against the state, 85–90 Superintendent of public instruction, 98, 283 Supreme Court, state, 21–22, 38, 102 apportionment powers, 65 election of justices, 106 recounts and voting irregularities, jurisdiction over, 69 rule-making power, 109 term of justices, 106, 283 Suspension of laws, prohibited, 151 Takings. See also Eminent domain public nuisance abatement, 118–119 Taxation and revenue, 185–199 annual property tax, 185–186 annual statement of receipts and expenditures, 198 appropriations required for expenditure, 195–196 bank taxes, 190 classification of property for taxation, 173–174, 186–190 consent required, 144–145 corporate tax power, 187, 190 creation of tax incremental districts, 79 ethanol incentive tax, 194, 214 excise taxes, 58, 144, 245

exemption laws void other than those enumerated in Constitution, 193 income tax, 60 inheritance tax, 118, 199 irrepealable tax to repay, 211–214, 217 municipal purposes, taxes for, 23, 196–197, 217 object of tax to be stated, 193–195 personal property exemption, 191–193 property exemption, 191–193 property tax, 60 public property exemption, 23, 28, 190–191 railroads, 18–19 rate increases, 23, 198–199 requirements of uniformity and consent, 144–145 schools supported by, 173–174 special assessments for local improvements, 196–197 treasury, payments into, 195–196 unauthorized use of public money as felony, 197–198 uniformity of, 187, 189, 281–282 valuation of property, 187 vehicle and fuel taxes, 59, 193–195 Telegraph lines, 241 Temperance. See Prohibition Term limits governor and lieutenant governor, 94 U.S. congressmen, 92 Territorial status. See also Statehood, history of adjustment of territorial debts and liabilities, 217–220 civil and military officers, continuance under state, 276 clemency power, 95 continuation of prior writs, actions, claims, and bodies corporate, 28, 275 debate over territorial capital, 6–8, 255 federal patronage and, 8–9 fines, forfeitures, and escheats to accrue to state, 275 first election returns (1889), 279–280 first settlers, 5 freedom of religion, 281 history of, 3–8 indebtedness, 214, 282 Indian lands, 281

I n de x   n   317

internal improvements, 223 legislature in transition to statehood, 280–281 north-south division, 5 ordinances and schedule, validity of, during transition to statehood, 281 "pony Congress," 4 pressures for territorial division, 4–6 public lands, 281 recognizances, bonds, obligations, and undertakings, continued validity of, 276 records, books, and archives, division between North and South Dakota, 284–286 refunding bond issue authorized for territorial debt payment, 220 state debt in addition to territorial debt, 214 state obligation to pay territorial debt, 28, 220, 281–282 Textbooks. See Education and school lands Title of act, 75–77 Tobacco settlement, 207 Treason, 154 Treasurer, state, 98 Treasury, payments into, 195–196 Trespassers’ claims to school lands, 9, 171 Trials. See also Jury trials impeachment, 233–234 speedy trial, right to, 129 Tribal lands. See Indian lands Tripp, Bartlett, 15 Trust funds education enhancement trust fund, 207 health care trust fund, 206 schools, perpetual trust fund for maintenance of, 162–165 schools, perpetual trust fund from proceeds of grants and gifts, 168–170 state cement enterprises’ proceeds creating, 225

Truth as defense, 126–127 Twelfth Amendment, 157 Twenty-Fourth Amendment, 157 Twenty-Sixth Amendment, 154, 157 Unauthorized contracts, 205–206 Unauthorized use of public money as felony, 197–198 Uniform Commercial Code, 90 Union security agreements, 120–121 United States, compact with, 263–265 University of South Dakota, 7 U.S. Constitution. See Constitution, U.S. Vacancies governor, 97–98 judges, 105, 106, 107 legislators, 70 Vehicle and fuel taxes, 59, 193–195 Venue, 129 Vest, Senator, 10–11 Veterans and deceased veterans’ dependents bonus, 224–225 Veterans Bonus Board, 225 Veto power, 96–97 Video lottery, 82–83 Voluntariness of confession, 132–133 Voting. See Elections Voting Rights Act (1965), 65 Waiver of homestead exemption, 259 of right to assistance of counsel, 122, 130 of sovereign immunity, 90 Ward, Joseph, 5, 13 Warehouses, 291 Warrantless search and seizure, 134–137 Water district functions, 89 Women’s suffrage, 16–17, 23, 25–26, 158 Writ of mandamus to force officials to accept referendum petition, 60 Yankton, 6, 8, 20

About the Author PATRICK M.  GARRY is Professor of Law at The University of South Dakota  School of Law. A  contributor to The Oxford Companion to the Supreme Court of the United States and The Oxford Companion to U.S. History, he has also written extensively on state and U.S.  constitutional history. Recent  titles include Limited Government and the Bill of Rights (University of Missouri Press, 2012)  and An Entrenched Legacy:  How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court (Penn State University Press, 2008).