STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
July 30, 1974
Gene Lebrun
Speaker of The House
House of Representatives
State Capitol
Pierre, South Dakota
OFFICIAL OPINION NO. 74-34
Validity of SDCL 42-7 --"Horse and Dog Racing"
Dear Mr. Speaker:
Members of the House of Representatives:
You have requested an official opinion on the constitutionality of SDCL 42-7 entitled "Horse and Dog Racing" in light of Article III, Section 25 of the South Dakota Constitution as amended.
My predecessors have spoken of the function and powers of this office in declaring an act of the Legislature constitutional or unconstitutional.
Attorney General 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 .... If that is true in respect to courts, the rule applies with much greater force to the duties of this office. There is also the general rule established by judicial authority that the constitutionality of statutes cannot be questioned by one whose rights are not affected thereby and who has no interest in defeating it and that public officers have no such interest. 11 Am. Jur. Sec. 117, page 762. 1941-42 AGR 78.
That position was also followed by Attorney General Ralph A. Dunham in an opinion relating to an education statute, 1953-54 AGR 88, 89.
In In re Watson, 17 S.D. 486, 491, 97 N.W. 463, 464 (1903), our Supreme Court said-
[T]here are no limitations upon the legislative powers of the Legislature in this state, except such as are imposed by the state and federal Constitutions; that no legislative act should be declared unconstitutional unless the conflict between its provisions and some principle of constitutional law is so plain and palpable as to leave no reasonable doubt of its validity ....
Attorney General Parnell Donahue restated the powers of this office in an appropriations opinion, declaring that, "It is not for the Attorney General to attempt to overcome the presumption that the act is constitutional. ... " 1958-60 AGR 336, 341.
Following the opinion of State v. Black Hills Transp. Co., 20 N.W. 2d 683, 684 (S.D. 1945), Attorney General Sigurd Anderson held the view that-
[T]he safe course is to assume that the statute is constitutional and to act accordingly. A statute is presumed to be valid and is not held to be unconstitutional unless its infringement is so plain as to admit of no reasonable doubt. 1947-48 AGR 343, 344.
More recently, Attorney General Gordon Mydland, with reference to constitutionality of statutes, stated, in part-
The basic principle which underlies the entire field of legal concepts is that by enactment of legislation, a constitutional measure is presumed to be created ....
It is my opinion that in general, it is the function of the courts and not the Attorney General to declare that a legislative enactment is unconstitutional. Therefore, it is my opinion that until such times as our courts determine that. ... is unconstitutional said statute should be regarded as constitutional. 1971-72 AGR 127,128.
My predecessors have consistently stated that it is the function of the courts and not the Attorney General to declare that a properly enacted legislative enactment is unconstitutional. No legislative act should be declared unconstitutional unless the conflict between its provisions and some principle of constitutional law is so plain and palpable as to leave no reasonable doubt of its validity. In general it is not the function or responsibility of the Attorney General to render an opinion on the validity of an enacted legislative statute. Unconstitutionality generally must be established by a judicial determination.
Respectfully submitted,
Kermit A. Sande
Attorney General
KAS:TL:mjh
