February 20, 1975
Mr. E.C. Pieplow
State Senator
State Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-31
Referral of statute to the vote of the people
Dear Senator Pieplow:
You have asked under what circumstances the Legislature may refer a statute which it has passed to a vote of the people.
Section 1 of article III of the South Dakota Constitution deals with a referendum started by the people:
[T]he people expressly reserve to themselves . . . 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. . . .
The section goes on to prohibit a referendum where the law is:
necessary for the immediate preservation of the public peace, health or safety, [or] support of the state government and its existing public institutions . . . .
This prohibition is designed to prevent a small minority (five percent) of the voters from bringing the operation of state government to a halt. Section 1 of article III does not apply to a referendum by the Legislature, only to a referendum instituted by the people.
The South Dakota Constitution grants all legislative power to the Legislature, S.D. Const. art. III, §l. The Legislature's power is plenary except where otherwise restricted by the constitution.
It is a fundamental rule that the state Constitution is a limitation of power restrictive in its nature, and that the Legislature has every power except that delegated to the federal government and that restricted or limited by the state Constitution. The generally accepted doctrine is that the Legislature may pass any acts that are not expressly or by necessary implication inhibited by their own Constitution or by the federal Constitution. State ex rel Payne v. Reeves, 44 S.D. 568, 587, 184 N.W. 993, 996 (1921).
The Constitution nowhere restricts the Legislature's power to refer legislative actions to a vote of the people. Therefore, it is my opinion that the Legislature has an absolute right to provide for a vote of the people on any laws it might pass. State ex rel. Wagner v. Summers, 33 S.D. 40, 50, 144 N.W. 730, 732 (1913).
You have also asked what language should be added to the bill to have it referred to a vote of the people. It is my opinion that any language is sufficient as long as it clearly expresses the intent of the Legislature to refer the measure to a vote of the people. It would also be advisable to delay the effective date of the act until after the vote of the people. See 1972 Senate Journal 585-87.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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