October 25, 1977
Mr. Robert N. Duxbury, Secretary
South Dakota Department of Agriculture
Anderson Building
Pierre, South Dakota 57501
Official Opinion No. 77-86
Constitutionality of SDCL 39-5-5
Dear Mr. Duxbury:
You have asked for an opinion on the following questions:
QUESTIONS:
1. Is SDCL 39-5-5 constitutional and should it be enforced?
2. If it should be enforced, who is the proper agency to enforce it?
IN RE QUESTION NO. 1:
SDCL 39-5-5 provides as follows:
Any person, firm or corporation who knowingly sells or offers for sale in the state of South Dakota through meat market, store or otherwise, and meat, either canned, frozen or cured, which are products of any foreign country to the United States, or imported from without the boundaries of the United States, or any meat product containing such imported meat, without first indicating this fact by display of a conspicuous sign in their place of business and by labels or brands on each quarter, half or whole carcass of such meat, or on each can, case or package containing any of the above- mentioned product, naming the country of its origin and the date of exportation shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five dollars or more than two hundred dollars or be imprisoned in the county jail not more than thirty days for the first offense. For each second or successive conviction of such offense against this section, the fine shall be not less than one hundred dollars nor more than five hundred dollars, nor more than ninety days imprisonment in the county jail, or both such fine and imprisonment.
In 1965 our Supreme Court in State ex rel. Oster v. Jorgenson, 136 N.W.2d 870, said that there is a well recognized presumption in the law that acts passed by the Legislature are constitutional and in 1968 went on to further say that no statute should be held unconstitutional unless its infringement of constitutional restrictions is so plain and palpable as to admit of no reasonable doubt. Clem v. City of Yankton, 160 N.W.2d 125. Also, one of my predecessors, George Mickelson, stated, in part, “Courts are bound to sustain the validity of a legislative enactment unless beyond a reasonable doubt it appears to be invalid.” Nelson v. Ry. Co., 47 S.D. 228; John Morrell & Co. v. American Railway Express Co., 45 S.D. 399. “If that is true in respect to courts, the rule applies with much greater force to the duties of this office.” 1 Am.Jur. § 117, page 762, 1941-42 AGR 78.
It is clear from the statute that any person who sells or offers for sale foreign meat products in South Dakota must have a conspicuous sign in his place of business and each package labeled stating said fact. If the sign or label is not present and foreign meat is sold or offered for sale, the person could be found guilty of a misdemeanor.
Although as pointed out above, all statutes are presumed constitutional and my predecessors have consistently stated that it is the function of the courts and not the Attorney General to declare a statute unconstitutional, I feel, however, compelled in light of the below referred to cases to do more in this instance.
Almost one year ago to date, a three judge panel sitting in the Western District of the United States District Court of Oklahoma, concluded that an Oklahoma statute almost identical to SDCL 39-5-6 produced an undue burden and discriminatory impact on interstate and foreign commerce and was thus invalid. Thos. Borthwick and Sons (U.S.A.) Ltd. and Meat Importers' Council of America, Inc. v. State of Oklahoma, Oklahoma State Board of Agriculture and Oklahoma Department Board of Health, ---- F.Supp. ---- (1976).
The Oklahoma statute involved required sellers of meat or meat products to indicate by meat display signs and item labels whether their produce was of “domestic or foreign” origin, or of both such origins. SDCL 39-5-5 is very similar; the only difference is that SDCL 39-5-5 does not require the “domestic” origin sign.
Other courts have had the occasion to review similar statutes and they have held such statutes invalid. See Tupman Thurlow Company v. Moss, 252 F.Supp. 641 (M.D. Tenn. 1966); Ness Produce Company v. Short, 263 F.Supp. 586 (D.Or. 1966); affirm per curiam, 305 U.S. 537; Armour and Company v. State of Nebraska, 270 F.Supp. 941 (D.Neb. 1967); International Packers Limited v. Hughes, 271 F. Supp. 430 (S.D.Iowa 1967).
Those statutes involved various labeling, record keeping, license fees or other requirements applicable to foreign meat or to meat products incorporating both foreign and domestic meat.
Although there are these possible constitutional problems, no court in South Dakota has held § 39-5-5 to violate any constitutional provision. Therefore, in adhering to and reaffirming the opinions of my predecessors, this office cannot determine the constitutionality of a statute. The answer to your question number one is yes.
IN RE QUESTION NO. 2:
A violation of SDCL 39-5-5 is a misdemeanor and SDCL 7-16-9 says that it is the duty of the state's attorney to appear in all courts of his county and prosecute on behalf of the State all civil or criminal actions in which the State is interested or a party. While the Attorney General has general supervisory powers over state's attorneys, the proper governmental official to enforce this misdemeanor violation is the state's attorney.
Respectfully submitted,
William J. Janklow
Attorney General
WJJ:RVJ:pk
