STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

February 19, 1970

R. F. Kneip
State Senator
Salem, South Dakota 57058

OFFICIAL OPINION NO. 70-7

Validity of Ch. 212 Laws of 1969. Bill enacted without compliance of legislative rules is not for that reason invalid.

Dear Mr. Kneip:

You have requested my interpretation of Ch. 212 of the Session Laws of 1969, which act amended SDCL 5-23-2.

The history of such enactment is necessary in order to understand the problem presented.

SDCL 5-23-2 originated in Section 1 of Ch. 159 of the Session Laws of 1964. The necessary language to consider in such 1964 enactment reads as follows:

The director of purchasing and printing shall purchase, or supervise the purchasing of, or the leasing, hiring or lease-purchasing of, all furniture . . .

In the 1969 Legislative Assembly, House Bill No. 871 was introduced, which, in the printed bill, insofar as the language here in question is concerned, provided:

The director of purchasing and printing shall purchase ( (or supervise)) (((or authorize))) the purchasing of all furniture . . .

The Bill passed both houses of the Legislature, was authenticated by the signatures of the President of the Senate and the Speaker of the House, and upon presentation to the Governor, was approved. Such enactment was given the number, Ch. 212 of the Session Laws of 1969, and insofar as here applicable, provides:

The director of purchasing and printing shall purchase or authorize the purchasing of all furniture . . .

It is thus apparent that the phrase "or the leasing, hiring, or lease-purchasing," preceding the words "of all furniture . . ." does not appear in the 1969 enactment.

Joint Rules (6-2) of the South Dakota Legislature for 1969, provided in part, as follows:

In bills amending existing statutes . . .omitted matters shall be shown and enclosed within double parenthesis ( (thus) ).

In view of the omission of the stated phrase by a failure to comply with the joint rules of the legislative assembly, you have submitted this question:

Is the above indicated phrase "or the leasing, hiring, or lease-purchasing," preceding "of all furniture . . ." still a part of SDCL 5-23-2, as amended by Ch. 212, Session Laws of 1969?

It is my opinion such phrase is not a part of the statute at this time. My reasons for this conclusion will be discussed.

There is judicial authority that in cases where an enrolled and authenticated act of the Legislature contains obvious clerical errors, if the courts can determine that it is obvious, the language used did not express the intent of the Legislature and it is further obvious as to what the Legislature intended to be written in such act. The court will construe such act as if it contained the words the Legislature intended, rather than the language actually as written as a result of such clerical error. (See Keenan v. Price, 68 Idaho 423, 195 P 2d 662. State v. Witzel, 79 Idaho 211, 312 P 2d 1044 and the cases therein cited,)

However, on the assumption that the omission of the phrase indicated resulted from a clerical error, there is nothing that appears that the Legislature intended this language to appear in the enactment. This theory can be of no help in saying that this phrase remains in the statute.

Your question actually raises the interesting question of whether or not a legislative enactment is valid, notwithstanding it was enacted in violation of the rules of such legislative assembly.

Illustrative of the general rule on the subject is the case of State v. Gray (1952) 221 La. 868, 60 So. 2d 466, where the validity of a criminal statute was attacked on the grounds that as the Constitution of Louisiana required all bills to be considered by a legislative committee before final passage, that the consideration and report on such criminal statute by a committee appointed in violation of the Rules of the Louisiana Legislature amounted to the enactment of an invalid law. The comment of the Louisiana Court on this contention is instructive. Said the Court:

Appellants' real complaint is not that the act in question was not reported by a committee of the Senate, but that the Senate did not observe its own rules in creating the Finance Committee to which this bill was referred and which reported it.

[4,5] If the Senate failed to observe its own rules when it created the committee which reported this bill, that fact cannot affect the validity of the act because it is well settled that an act of the Legislature will not be declared void or invalid for failure of the legislative body to observe its own rules of procedure. Such rules are usually formulated or adopted by the legislative body, itself, and the observance of these rules is a matter entirely within its control and discretion and is not subject to review by the courts as long as the legislative action does not violate some constitutional provision. Sutherland, Statutory Construction (Horack's 3rd ed.), sec. 604, p. 126; Crawford, Statutory Construction, sec. 33, P. 54; 50 Am. Jur., Statutes sec. 65, p. 85, State v. Brown, 33 S.C. 515, 11 S.E. 641; St. Louis & S.F. Ry. Co. v. Gill, 54 Ark. 101, 15 S.W. 18, 11 L.R.A. 452; Schweizer v. Territory, 5 Akl. 298, 47 P. 1094; State v. Cumberland Club, 136 Tenn. 84, 188 S.W. 583; McDonald v. State, 80 Wis. 407, 50 N.W. 185.

See also Bradley Lumber Corp. v. Chenley, 226 Ark. 857, 295 S.W. 2d 765; Carlton v. Grimes, 237 Iowa 912, 23 N.W. 2d 883.

While this question has never been presented to our Supreme Court, it is my feeling that our court would be in accord with the general rule. While our court in its earlier days approved of the rule that an enrolled bill duly authenticated and filed in the office of the Secretary of State was conclusive (see Narragong v. Brown County, 14 S.D. 357, 85 N.W. 6021, State ex rel Lavin v. Bacon, 14 S.D. 394, 85 N.W. 605, Krakowski v. Waskey, 33 S.D. 335, 145 N.W. 506, and State v. Schmitt, 42 S.D. 267, 173 N.W. 833), This rule was modified in Barnsdall Refining Co. v. Welsh, 64 S.D. 647, 269 N.W. 853, and J. C. Penney Co. v. Welsh, 64 S.D. 661, 269 N.W. 860, to the extent that journal entries of the Legislature may impeach a legislative act, if such journal entries show that the applicable provisions of the Constitution relative to the enactment of such law was not complied with.

Ch. 212, Laws of 1969, while enacted without compliance with the rules of the Legislature, certainly cannot be attacked on the grounds of a violation of constitutional provision. It is a legal enactment. The duly authenticated bill, filed in the Secretary of State's office expresses the legislative intent. The quoted phrase, omitted from such enactment is no part of such legislative act at this time.

Respectfully submitted,

Gordon Mydland
Attorney General