May 14, 1975
Mr. Harvey Wollman
Lieutenant Governor
State of South Dakota
Mr. Joseph H. Barnett
Speaker of the House
State of South Dakota
OFFICIAL OPINION NO. 75-84
SDCL 60-11-3
Dear Lieutenant Governor Wollman and Speaker Barnett:
You have asked for my opinion on the following question:
It has come to our attention that, through apparent inadvertent clerical error in the Senate Engrossing and Enrolling Offices, Senate Bill 150, the minimum wage measure, as finally presented to and signed by the Governor does not in fact recite the true intent of the Legislature as evidenced by the Kleven amendments appearing and adopted at pages 1415 and 1416 of the House Journal. The part of those amendments pertaining to that portion of tips considered as part of the minimum wage does not appear in the final Act.
Under these circumstances, will you kindly advise whether the measure will be valid and enforceable as of July 1, 1975?
The enrolled version of Senate Bill 150, as signed by the Governor contains the following provision:
Tips or other considerations received by an employee may be credited by the employer toward the stated minimum wage up to a maximum of twenty-five per cent of the stated minimum wage.
This apparently was not the version which passed the House. At page 145 of the House Journal, Representative Kleven moved that the twenty-five percent provision be stricken in favor of the fifty per cent provision currently existing in SDCL 60-11-3. The amendment prevailed and the bill as amended passed (H.J. 1416) and was concurred in by the Senate (S.J. 1225). However, the bill was improperly enrolled leaving the twenty-five per cent provision in the measure. The Speaker of the House and the President of the Senate signed the erroneously enrolled version. The Governor signed the bill into law. The bill as passed clearly conflicts with the enrolled, signed version. The South Dakota Supreme Court has adopted the "modified journal entry" rule of evidence in considering the validity of acts of the Legislature. Minnehaha County v. South Dakota State Board of Equalization, 84 S.D. 640, 176 N.W. 2d 56 (1970); Barnsdall Refining Corp. v. Welsh, 64 S.D. 647, 269 N.W. 853 (1936). Under this rule, the Court will consider the enrolled bill as conclusive evidence of its due enactment unless some journal entry required by the Constitution can be shown to impeach the validity of the Act.
The Constitution requires the following journal entries to be made:
(1) 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. S.D. Const. Art. III § 13.
(2) [N]o 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. S.D. Const. Art. III § 18.
(3) 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. S.D. Const. Art. III, § 19.
(4) In all elections to be made by the Legislature the members thereof shall vote viva voce and their votes shall be entered in the journal. S.D. Const. Art. III, § 14.
An examination of legislative history of Senate Bill 150 shows that all of the journal entries required by the Constitution have been duly made.
(1) An examination of pages 524-25 of the Senate Journal discloses the following:
The question being "Shall Senate Bill No. 150 pass?" On recorded journal roll call there were 20 yeas; 14 nays; I excused. Bill declared passed and title agreed to.
(2) An examination of page 1416 of the House Journal discloses the following:
The question being "Shall Senate Bill No. 150 pass as amended?" On recorded journal roll call there are 46 yeas; 22 nays; 2 absent and not voting. Bill declared passed and title agreed to.
(3) An examination of page 1225 of the Senate Journal discloses the following:
Motion to concur in House amendments? On recorded journal roll call there are 29 yeas; 6 nays.
"Mr. President declared the motion prevailed and the House Amendments to Senate Bill No. 150 concurred in."
(4) An examination of pages 1276, 1278 and 1280 of the Senate Journal discloses the following:
President of Senate publicly read the title to Senate Bill No. 150 and signed the same in the presence of the Senate.
(5) An examination of pages 1528, 1530 and 1535 of the House Journal discloses the following:
Speaker publicly read the title to Senate Bill No. 150 and signed same in the presence of the House.
An examination of the journal entries respecting Senate Bill No. 150 shows that the Bill was enacted in conformity with the Constitution. I am bound by judicial precedent to ignore the obvious error in enrolling the amendment. Senate Bill No. 150 as enrolled and signed will be valid and enforceable on July 1, 1975. The rationale behind this result is found in Sherman v. Story, 30 Cat. 253, 89 Am. Dec. 93:
Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act, state and national, should at any and all times be liable to be put in issue and impeached by the journals, loose papers of the Legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.
I have reviewed the decision of Circuit Judge R.F. Manson in Bibby v. Board of Regents issued in a letter opinion dated December 22, 1971. Judge Manson relies on Freeman v. Goff, 206 Minn. 49, 287 N.W. 238 (1939). In Freeman the Minnesota court clearly states that it follows the "journal entry rule" which permits any entry in the journal to be used to impeach the enrolled, signed Act. The South Dakota Supreme Court has just as clearly rejected the "journal entry rule" in favor of the "modified journal entry" rule which only allows constitutionally mandated entries to be used to impeach the enrolled, signed Act. Minnehaha County v. South Dakota State Board of Equalization, 84 S.D. 640, 176 N.W. 2d 56 (1970). The constitution does not require that the amendment be spread upon the journal. Therefore, the amendment appearing in the journal cannot be used to impeach the enrolled, signed Act, and it is my opinion that the enrolled, signed Act is the law.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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