§ 5. The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians, not taxed, and soldiers and officers of the United States army and navy. Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state. CENSUS-LEGISLATION-APPORTIONMENT. Article 3, sec. 5, is mandatory, but, since there is no power that can compel a legislature to take affirmative action in enacting laws, its action under the constitutional provision depends solely on its own volition, guided by its sense of public duty and responsibility. In case the legislature should fail to provide for the enumeration as required by the Constitution, the existing apportionment would remain in force. In re State Census, 6 S. D. 540, 62 N. W., 129. § 6. The terms of the office of the members of the legislature, shall be two years: they shall receive for their services the sum of five dollars for each day's attendance during the session of the legislature, and ten 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. Each regular session of the legislature shall not exceed sixty days, except in cases of impeachment, and members of the legislature shall receive no other pay or perquisites except per diem and mileage. (The foregoing section (6) was amended at the general election held in November. 7892. by reducing the mileage of the members from "ten" to "five" cents per mile.) § 7. The legislature shall meet at the seat of government on the first Tuesday after the first Monday of January at 12 o'clock m., in the year next ensuing the election of members thereof, and at no other time except as provided by this constitution. § 8. 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 contrib uted 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. § 9. Each house shall be the judge of the election returns and qualfications of its own members. 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 employes and fix the pay thereof, except as otherwise provided in this constitution. § 10. The governor shall issue writs of election to fill such vacancies as may occur in either house of the legislature. § 11. 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. § 12. 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. LEGISLATOR-APPOINTMENT DURING TERM TO OTHER OFFICE-ATTORNEY GENERAL STATE'S ATTORNEY-R. R. COMR'S COMPENSATION. Laws 1897, Chapter 110, Section 41, prescribing certain duties of the attorney general and state's attorneys, authorizes the railroad commissioners to employ additional legal counsel, and the general appropriation bill for the same year, (Laws 1897, Chapter 10, Section 20), contains the item; "For litigation fund for biennial period of 1897 and 1898, $4,500." Held, that an attorney who was chosen a member of the legislature for the biennial period beginning January 1, 1897, cannot collect for services rendered the railroad commissioners during 1897. Palmer v. State, 11 S. D., 78, 75 N. W. $18. § 13. 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 members on any question shall be taken at the desire of one-sixth of those present and entered upon the journal. EVIDENCE-JOURNALS-STATUTES VALIDITY. The journals of the two houses of the legislature are not competent to impeach the validity of a statute enrolled and authenticated by the proper officers. Narregang v. Brown County et al., 14 S. D., 357, 85 N. W. 602, App. 510, 997. ev. 520. $ 14. In all elections to be made by the legislature the members thereof shall vote rira roce and their votes shall be entered in the journal $ 15. 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. $ 16. 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. 17. Every bill shall be read three several times, but the first and second reading may be on the same day, and the second reading may be by title of the bill. unless the reading at length be demanded. The first and third readings shall be at length. INSURANCE POLICY-FORM OF. Rev. Civ. Code, § 664, providing that the State Insurance Commissioner shall keep on file in his office printed forms, in blank, of a contract or policy of fire insurance, and that the Commissioner shall, as near as the same can be applicable, conform to the type and form of the New York standard fire insurance policy, is repugnant, in so far as it delegates to the Commissioner power to prescribe the form of policy to be used, to Const. Art. 3, § 17, requiring every bill to be read twice, at length, that the lawmakers may know what they are doing, and hence he has no power to compel insurance companies to use any particular form of fire insurance policy. Phenix Ins. Co., of Brooklyn, N. Y., et al. v. Perkins, Commissioner of Insurance, 19 S. D., 59, 101 N. W. 1110. $ 18. 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. $ 19. 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. LEGISLATION-JOINT TION RESOLUTION-TITLES-EVIDENCE-PROHIBI AMENDMENT-SUBMISSION. 1. Although the Constitution does not require a joint resolution to have a title, it presupposes it will have one; and, where the title to a joint resolution is adopted after due consideration, it may be referred to and considered by the court for the purpose of ascertaining the intention of the two houses in adopting the resolution, if there is doubt as to that intention. 2. Laws 1895, Chap. 38, is: "House Joint Resolution proposing an amendment to the Constitution-A joint resolution to amend the Constitution of the state of South Dakota by repealing Article 24 thereof, relating to prohibition, and submitting the same to a vote of the people. Be it resolved by the house of representatives of the state of South Dakota, the senate concurring: Section 1. (Question submitted.) That at the general election to be held in the state of South Dakota on the first Tuesday after the first Monday in November, 1896, there shall be submitted to a vote of the qualified electors of the state of South Dakota the following question: "Shall Article 24 of the Constitution be repealed?" Held, that such joint resolution, read in connection with the title, shows that an amendment to the Constitution by striking out Article 24, relating to prohibition, was proposed and agreed to by the two houses, as required by Const. Art 23, § 1, which does not prescribe any particular form in which the two houses shall proceed in proposing, agreeing to, or submitting to the people an amendment; and the resolution is not open to the objection that the only proposition agreed to was as to the submission to the people of the question, "Shall Article 24 of the Constitution be repealed?" 3. The manner in which the question of the proposed amendment was submitted to the people was sufficient, and not misleading, though somewhat informal, under Laws 1895, Chap. 86, § 1. 4. Since the proposition was not to add anything to the constitution, but simply to strike out an article without adding or substituting anything in its place, the proceedings to effect the amendment are not assailable on the ground that if the proposition, "Shall Article 24 of the Constitution be repealed?" as voted on by the electors, be added to that instrument, it would not have the effect to change or amend it. 5. Proceedings to amend the Constitution are not invalidated because the proposed amendment is not "printed upon each ticket on the ballot," as required by laws 1895, Chap. 86, all the other steps being as required by law. Lovett v. Ferguson, 10 S. D., 44, 71 N. W., 765. § 20. Any bill may originate in either House of the legislature, and a bill passed by one house may be amended in the other. § 21. No law shall embrace more than one subject, which shall be expressed in its title. STATUTES SUBJECT-TITLE-INTERPRETATION INTERSTATE COMMERCE. CONSTRUCTION 1. If a party assail the Constitutionality of an act, he must show beyond reasonable doubt that it is in violation of the fundamental law of government. Every presumption is in favor of the validity of a legislative enactment, and it is for the attacking party to show that his rights are invaded by that act, and that it does not come within the legitimate exercise of the lawmaking power, under the Constitution. 2. The object of Section 21 of Article 3 of the Constitution of the state, was to prevent the bringing together in one act, subjects having no necessary connection or relation with each other, and to guard the legislatures and communities affected by the law against surprise and imposition; and it is mandatory,-a direct, positive, and imperative limitation upon the legislature. 3. Sec. 21 was not intended to embarrass the legislature in the legitimate exercise of its powers by compelling a needless multiplication of bills designed to meet the same object. A liberal interpretation and construction should be given it by the courts so as not to cripple or limit legislative enactments any further than is necessary for the requirements of the law. The ground that an act embraces more than one subject, and that it was not sufficiently expressed in its title, should be grave, and the conflict between the statute and Constitution plain and manifest, before courts will be justified in declaring it unconstitutional and void. 4. When the title of a legislative act expresses a general subject or purpose which is single, all matters which are naturally and reasonably included in it, and all measures which will or may facilitate the accomplishment of the purpose, are germane to its title. The title must express the subject comprehensively so as to include all the provisions in the body of the act. It need not index all its details, but it should indicate the purpose of the legislature in the enactment. 5. A portion of a statute may be unconstitutional and stricken out, and if that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, the statute must be sustained. 6. If, upon examination, the general meaning and object of the statute be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to that purpose. 7. Mercantile or commercial agencies are not such legitimate and useful intruments of commerce or commercial intercourse as to put them exclusively under the regulation of Congress, and free from state control, and a legislative enactment providing for the organization of such companies, and the regulation of their business within the limits of the state, is not an interference with interstate commerce, and is not void because in violation of the commerce clause of Section 8, of Article 1, of the Constitution of the United States. State v. Morgan, 2 S. D., 32, 48 N. W., 314. LIQUOR. 1. It is only when the collision between the legislative and the constitutional law is certain and inevitable that the courts feel justified in declaring a law void. 2. The object of Section 21, Art. 3, of the Constitution, is to prevent bringing together into one act measures diverse and foreign to each other, with a view of combining the friends of each, and thus to accomplish the passage in one law of the several measures, which could not have passed on their individual merits, and also to prevent the insertion into bills of matter or measures of which the title gave no notice, and thus to deceive and mislead individual legislators and the public generally. 3. The disposition of the courts is to construe this constitutional provision liberally, rather than to embarrass or defeat legislation by a construction the strictness of which, is unnecessary to accomplish the beneficial purposes for which it was adopted. 4. The reason for the rule that duplicity in the title and in the law is fatal to the law is the inability of the court to determine which of the different subjects named, the legislature intended as the subject of the law, and when the reason fails the rule fails, and so the rule applies only where such inability actually exists. 5. As to chapter 101, Laws of 1890, Sec. 12, there is no such inability, for its title expressly declares that it is intended to enforce "the provisions of Article 24 of the Constitution," and the provisions of that article cover only the manufacture, sale, and keeping for sale of intoxicating liquors, and not the use of such liquors; so that if it were, for any reason, incompetent for the legislature, in that law to legislate against the use of such liquors, the subject of the use might be dropped from both the title and the law, if, such subject being rejected, that which remains is a complete and sensible law, and capable of being executed in accordance with the apparent legislative intent. 6. It is not necessary, in order to make such rejection allowable, that the obnoxious subject or matters be contained in independent provisions. The test is whether they are essentially and inseparably connected in substance. 7. Whether any portion or provision of a law is invalid because it violates the constitutional rights of a citizen or because it violates a constitutional rule of legislation, its relation to the balance of the law is the same, and may be rejected from the law under the same conditions. 8. The subject of the use of intoxicating liquors may be dropped from the title and from the provisions of the law without affecting the balance of the law. 9. The punishment imposed by section 13, c. 101, Laws 1890, for the first offense of keeping and maintaining a common nuisance is not a "cruel punishment," within the meaning of section 23, Art. 6, of the Constitution, and such provision is not unconstitutional on that account. 10. Article 24 of the Constitution declares a policy single in its ultimate purpose and object, but a law for its enforcement must necessarily, and therefore may legally, include the employment of many measures and the attainment of many ends, not as independent objects or subjects of legislation, but as auxiliary to the final purpose sought. 11. It is a well established and wholesome rule of law that no one can take advantage of the unconstitutionality of an independent provision of a law, who has no interest in and is not affected by such provisions. State v. Becker, 3 S. D., 29, 51 N. W., 1019. STATUTES-TITLE-SUBJECT-COUNTY BOUNDARIES. Laws 1897, c. 41, entitled, "An act changing and defining the bounaries of Stanley county," authorized the submission of the question of such change to the voters of the county. Held, that such act was not invalid as embracing more than one subject, not expressed in its title, since, the title to the act being general, it might properly include any provisions germane to the main subject. Stuart et al. v. Kirley et al., S. D., 246, 81 N. W., 147. |