The Brookings register. [volume] (Brookings, Brookings County, S.D.) 1903-1971, 1915-11-11
FULL TEXT OF DECISION ON PR.
MARY LAW

- iAN
Ricrards' primary law case is as fol-
lows:
This suit was instituted by plaintiffs
K. o. Richards, ct al, to restrain de-
PENDANT, as county auditor Of Beadle
county, from complying with the re-
quirements of chapter 25S, laws of
1915, upon the ground that said legis-
latlve enactment is unconstitutional
and void (1) in that it contains an
emergency clause making it take I'M
mediate effect, thereby, as it is alleged
"depriving the people of the expressly
re erved right OF having the law sub
mitted to the voters" CD in that the
legislature was without the power to
repeal chapter POI, laws of 1911, com
monty known as the Richards Primary
law, the same as it is alleged, beng
a law enacted by a direct vote of the
people under the initiative and refer
endum." Findings and judgment were
in favor of defendant and plaintiffs APP
peal.
At the 1915 session of the legislature
there was passed and enacted, with an
emergency clause, chapter 25S, the
same being a general primary election
law. In many material particulars al
though not in all, this chapter 25S in
herently conflicts with certain provis-
ions of chapter POI, laws of 1911. by
the express provision of chapter 258,
chapter POI and all acts and parts of
acts in conflict with chapter 25S We're
repealed. We will first consider the
question of the emergency clause con-
tanned in chapter 25S, as we view it in
connection with the record in this case.
power TO enact, where there is no
emergency clause embodied therein,
goes into effect on the next succeeding
day of July, unless vetoed by the gov
ernor, or unless a referendum petition
referring the same to a vote, is filed
as required by law. If, as contended
by appellants, the emergency clause
to chapter 258 was void and of no
effect Ca question not necessary to be
decided in this case under the record
herein) then the said chapter 258 is,
in legal effect the same as if no
emergency was therein contained.
Chapter 25S was not vetoed by the
governor, and it stands as one of the
conceded facts in this case that no
referendum petition Of any kind was
ever filed requiring chapter 25S to be
submitted to a vote of the people for
approval. There is no provision in the
constitution that will permit or au-
thorize the exercise of the referendum
vote in the absence of the filing of a
proper petition therefor. Not having
filed a proper referendum petition re-
curing a vote on said chapter 25S, the
plaintiffs are not in a position to COM
plain of the invalidity of chapter 25S
on account Of the emergency clause
therein contained. The mere fact that
this suit was commenced before July
l will not change the situation. The
only thing that will prevent such an
enactment if otherwise valid, from
going into effect on the first day of
July is the exercise Of the veto or the
referendum. The mere commencement
of a suit to determine the constitution
atty of an enactment, either with or
without the emergency clause, will not
prevent such an enactment from going
into effect at the legally specified time;
otherwise many salutary laws might
be, in this manner indefinitely post
poned from going into effect at the
times specified by the constitution;
and thereby placing in the hands of
litigants and courts the power of regu-
lating or varying the time fixed by the
constitution in which legislative acts
shall go into effect. The attachment of
an unwarranted and void emergency
clause to an enactment could in 10
manner prevent the fling of a proper
referendum petition. In order to have
kept alive the question of the validity
of the emergency clause contained in
chapter 25S, as a question for deter
mination in this court, or the court be-
low, a proper referendum petition
should have been filed prior TO the
first day of July. Therefore if the legis-
lature had the power to repeal chapter
POI and enact in place thereof chapter
258, then on and after the first day or
July, 1915, chapter 25S was a valid
and existing law of this state whether
the same became such with or with
out an emergency clause. In Riley VS..
Carrico, 10 Pac. 1873 and in Mcintosh
VS.. State, 12O S. w. ASS. it is held that
the fact that the action of the legisla-
ture in declaring an emergency to ex-
list was void did not invalidate the act,
or relieve the necessity of filing a ref