January 23, 1975
The Honorable Harvey Wollman
Lieutenant Governor
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-7
When is the Lieutenant Governor entitled to senatorial vote?
Dear Mr. Wollman:
You have asked for my opinion on the following question:
On what questions before the Senate is the Lieutenant Governor, as President of the Senate, entitled to cast a vote?
Section 5 of article IV of the South Dakota Constitution contains the following:
The Lieutenant Governor shall be president of the Senate but shall have no vote unless the senators be equally divided.
This provision became effective when approved by the people in 1972. It does not differ greatly from the provision of the original constitution which contained the following language:
The Lieutenant Governor shall be president of the senate but shall have only a casting vote therein.
Under either version the Lieutenant Governor apparently could vote if the senators were tied.
The concept of the Lieutenant Governor being the president of the Senate is modeled after the United States Constitution wherein the Vice President of the United States is the president of the United States Senate. Most states have, or have at one time had, similar provisions in their respective state constitutions.
Most states, including South Dakota, have carried the mimicry further and provided that the Lieutenant Governor may vote in the case of a tie much as the Vice President of the United States may vote to break a tie.
The similarity, however, is not absolute. In the United States Senate, a simple majority of those Senators voting is sufficient to enact legislation. In South Dakota, an absolute majority of all senators is necessary to pass a bill. Section18 of Article III provides in part:
[N]o law shall be passed unless by assent of a majority of all the members elected to each house of the Legislature.
Since SDCL 2-2-1 provides for thirty-five senators, eighteen senators must vote affirmatively before any bill may be passed.
At first it would appear that Section of Article III would prohibit the Lieutenant Governor from voting on the final passage of any law because he is not a member of the Legislature. On two prior occasions, my predecessors have so held. 1949-50 A.G.R. 58; 1933-34 A.G.R. 548.
However, the constitution was changed in 1972. The Constitutional Revision Commission patterned the 1972 version which provides: "The lieutenant governor shall be president of the senate, but shall have no vote unless the senators be equally divided," after Section 3 of Article I of the United States Constitution which provides: "The vice-president of the United States shall be president of the senate, but shall have no vote, unless they be equally divided." In their comments the members of the Constitutional Revision Commission clearly indicated that they intended that the Lieutenant Governor should vote in all ties by stating: "The first sentence [of the proposed revision] retains the Lieutenant Governor as President of the Senate as is provided in the current Constitution, but adopts the terminology of the United States Constitution (Article I, Section 3) that allows the Lieutenant Governor to vote in case of a tie." Reports on Article IV by Committee Number 2 of the Constitutional Revision Commission at 21 (August 2, 1971).
This same controversy has arisen elsewhere. Two lines of authority have developed. The older authorities hold that where the state constitution provides that a bill must have a majority of all members elected to the body to be passed into law, the Lieutenant Governor may not break a tie. 82 C.J.S. Statutes §40 (1953). See Coleman v. Miller, 146 Kan. 390, 71 P.2d 518 (1937); Kelley v. Secretary of State, 149 Mich. 343, 112 N.W. 978 (1907).
The newer, better reasoned cases hold that the Lieutenant Governor may vote in any situation, including final passage of a law. In Opinion of the Justices, 225 A.2d 481 (Del. 1966), the Supreme Court of Delaware ruled that the Lieutenant Governor could vote in a tie situation on final passage of a law. Section 19 of Article 3 of the Delaware Constitution provides that the Lieutenant Governor "shall be President of the Senate, but shall have no vote unless the Senate be equally divided." Section 10 of Article 2 of the Delaware Constitution provides:
[N]o bill or joint resolution, except in relation to adjournment, shall pass either House. . . . without the concurrence of a majority of all members elected to each House.
These provisions are virtually identical to the relevant provisions of the South Dakota Constitution.
The Delaware court concluded that the Lieutenant Governor was not a member of the Senate. However, the court went on to resolve the conflict between the constitutional provisions that allow the Lieutenant Governor to vote in a tie but require that final passage of a law be by a majority of the members elected to the Legislature. The court said:
It is unreasonable to assume, we think, that the framers of the Constitution intended to limit the casting vote, vested in the Lieutenant Governor by Art. 3, §19, to those less important functions and decisions which were left by the Constitution to a majority of a quorum of the Senate. It is more reasonable to assume, in our opinion, that the casting vote of the Lieutenant Governor was intended to break ties in the more important matters before the Senate, as well as the less important ones. It is in the public interest that there by a proper method to break deadlocks and to avoid impasse in the Senate. This was the rationale for vesting in the Vice President the casting vote in the United States Senate: 'to secure at all times the possibility of a definitive resolution of the body.' The Federalist Papers, No. 68: Hamilton. The more important the matter pending for decision, the more essential such tie-breaking device is to the public welfare.
[W]e conclude that the casting vote provision of Art. 3, §19 has not been modified, restricted or limited by the constitutional provisions which require action by a majority of the members of the Senate. That which is implied is as much a part of the Constitution as that which is expressed. Implicit in Art. 3, §19, we think, is the unqualified power of the Lieutenant Governor to vote on any question-large or small-whenever the Senate is equally divided. This conclusion maintains the underlying principle of the "majority of members" provisions: the expression of the will of the majority of the people of the State. That principle is not violated by the vote of the Lieutenant Governor who is elected by all of the people of the State. See Constitutional Debates, pp. 298-299, 302. To conclude otherwise, on the other hand, would be to substantially impair, if not nullify, the casting vote provision of Art. 3, §19. By holding this provision to be predominant, as we believe the framers of the Constitution intended, repugnancy of the various provisions under consideration is avoided insofar as possible, and maximum effectiveness is given to the objects and purposes of each." Opinion of the Justices, 225 A.2d 481,485 (Del. 1966).
A similar question arose recently in Minnesota. There the Lieutenant Governor was not permitted to vote. In State ex rel. Palmer v. Perpich, 182 N.W.2d 182, 185 (Minn. 1971), the court said:
It might be noted that the Constitution of the United States expressly provides that the vice president shall have such right to vote in case of a tie. Art. I, §3, contains, among other things, the following:
The vice president of the United States shall be president of the senate, but shall have no vote unless they be equally divided.
We have been informed that other states have similar provisions in their constitutions. We have no comparable provision in our Constitution. If the people of Minnesota had wanted to give the lieutenant governor the right to vote in case of a tie they could easily have done so. They had before them, when our Constitution was drafted, the constitutions of many other states as well as the Constitution of the United States. They clearly did not give this power to the lieutenant governor, and we have no authority to confer it upon him. (Emphasis added.)
The people of South Dakota did give the Lieutenant Governor the right to vote in case of a tie. This right should be upheld.
Therefore, it is my opinion that the Lieutenant Governor may vote whenever the senators are equally divided on any matter including the final passage of a law. I also believe that this matter is so important that it should be settled by the Supreme Court of South Dakota before it becomes an issue of litigation. I believe this is one of those solemn occasions when the Governor should request an opinion of the justices of the Supreme Court. Otherwise, this question may arise in the form of expensive and lengthy litigation over the legality of any law passed by virtue of the Lieutenant Governor's tie-breaking vote. I do not specifically overrule 1949-50 A.G.R. 58, and 1933-34 A.G.R. 548, as these decisions were written before the constitutional amendment of 1972. It is my belief and understanding of the law that this present opinion is consistent with the intent of the people when they changed the constitution in 1972. I have examined the relevant case decisions as well as the minutes of the Constitutional Revision Commission in preparing this opinion.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:MAG/dh
