STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
January 26, 1970
Dexter H. Gunderson
Speaker of the House
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 70-4
Initiating petition to repeal statute requiring mandatory fluoridation of municipal water supplies
Right to initiate statute repealing existing law
Propriety of initiative petition in question
Legislature may enact law suggested by initiative which would become operative without being submitted to vote of electorate
Dear Mr. Gunderson:
You have requested my opinion in regard to initiative petition to the House and Senate of the South Dakota Legislature which seeks the repeal of Chapter 112 of the Session Laws of 1969 relating to fluoridation of South Dakota municipal water supplies.
The Secretary of State in compliance with law has certified that such petition bears signatures of more than 5% of the total number of electors voting for the Governor in the last General Election, so that presumptively this requirement of the Constitution has been complied with in the body of the petition as is provided:
We hereby request that such law be submitted to a vote of the people if not passed by the legislature of the State of South Dakota at its forty-fifth session.
It thereafter sets forth the title and body of the proposed act.
You have submitted these questions for my consideration:
1. Can the initiative be used to repeal an existing law?
2. Could the Legislature accomplish the purpose of such initiative petition by enacting such statute, which would be effective without submission of such question to the vote of the electorate at the next general election?
3. In your opinion, is the proposed initiative petition here in question in compliance with the Constitution and statutes so as to be valid, and to present an initiative statute to the Legislature?
May I advise that my answer to all three questions is in the AFFIRMATIVE. I will explain the reasons for such decision.
By amendment to our Constitution, the people reserved to themselves the right to initiate or refer any action of the South Dakota Legislature or the governing body of any municipality. The Constitution provides that if such initiative is properly invoked the Legislature shall enact such legislation and submit such proposal to the vote of the electorate, at the next general election. Upon approval by the electorate, such law becomes effective. The statutes to implement the Constitutional provision, provide for such passage and submission to the electorate.
The constitutional provision further provides:
This section shall not be construed so as to deprive the Legislature, or any member thereof of the right to propose any measure.
QUESTION NO. 1
It is my opinion that as a part of its reserved power to initiate statutes the people have reserved unto themselves the right to repeal existing statutes. This was definitely decided in DAWSON v. TOBIN (1946) 74 ND 713, 24 NW 2d 737. In BLOTTER v. FARRELL (1954) 42 Cal 2d 803, 270 P 2d 481, the Supreme Court of California arrived at the same conclusion in regard to ordinances, holding that to deny the power to repeal ordinances would be an unjustifiable curtailment of the right the people reserved in themselves to initiate ordinances.
QUESTION NO. 2
Most courts that have discussed the initiative have arrived at the conclusion that the right to initiate statutes is in no manner any limitation upon the right of the Legislature itself to enact legislation.
In the early case of STATE EX REL RICHARDS v. WHISMAN (1915) 36 SD 260, 154 NW 707, LRA 1917B 1 (error dismissed, 241 US 643, 36 S. Ct. 449, 60 L. Ed. 1218) our court discussed the problem presented. Said our court:
. . . The fact that the people themselves may propose or enact laws in connection with the Legislature in no manner conflicts with or prohibits the Legislature from itself also enacting the same law that might be desired by the people. If the Legislature of its own volition should enact the same law desired by the people, the initiative would then become unnecessary and useless as to such law. The evident purpose of this constitutional amendment was not to curtail or limit the powers of the Legislature to enact laws, but the purpose was to compel enactment by the Legislature of measures desired by the people, and, if the Legislature neglected to act as so desired by the people, that then the people by means of the initiative might enact such measures into laws themselves . . .
In STATE EX REL HOOPER v. HAHN (1943) 69 SD 275, 9 NW 2d 502 discussed initiative ordinances. It is interesting to notice that under the 1919 Code the statutes provide that if the initiative ordinance be not adopted, such must be submitted to the vote of the electors. However, in the 1939 Code it was provided that upon receipt of such initiative petition, the governing body shall enact the proposed ordinance and submit it to the vote of the electors. Said our court in this decision:
The initiative petition in question sought alternative action, that is, enactment of the ordinance or submission to a vote of the electors in the manner required by law. The law confers upon the electors the power to propose their own ordinances or resolutions, provided they follow certain procedure in submitting the same to a vote. We do not believe that the language of either the constitution or the statute indicates an intention to deprive the governing body of a municipality of the right to enact an ordinance which has been initiated by the filing of a petition. If, however, the governing body is opposed to an initiated measure, the reference procedure must then be followed. The change of the language by the code commission must have been made, not for the purpose of preventing the governing body voluntarily enacting an initiated ordinance or resolution, but for the purpose of more clearly expressing the necessity of enacting an initiated measure before submission as required by the constitution.
It is my opinion that if the WHISMAN case does not support my conclusion that certainly it seems most unlikely that our court, under the same constitutional provision, and similar statutes, when it has found that the governing body of a city may enact the proposed initiative ordinance, without submission to the people and would hold differently in regard to a state statute.
It is my opinion that such statute may be enacted and will become operative without submission to the electorate. Of course, if the referendum were invoked as to such legislative enactment, submission to the electorate would be necessary.
QUESTION NO. 3
In KLOSTERMAN v. MARSH (1966) 180 Neb. 50.6, 143 NW 2d 733, quoting with approval STATE EX REL AYRES v. AMSBERRY, 104 Neb. 273, 177 NW 179, the Nebraska Court concluded as follows in regard to initiative petitions:
Constitutional provisions with respect to the right of initiative and referendum reserved to the people the right to act in the capacity of legislators. The presumption should be in favor of the validity and legality of their acts.
The petition in question sought that which is permissible under our laws:
Enactment by the Legislature as its own enactment, or enactment and submission to the electorate.
I must find this petition is valid under our initiative provisions of the Constitution and statutes.
There has been some suggestion that the 1970 legislative assembly should do nothing with this initiative petition if it does not conclude that it, the Legislature, will not voluntarily repeal Chapter 112 of the Session Laws of 1969. Such an attitude, of course, would be violative of the oath of office of each member of the South Dakota Legislature, who has taken his oath of office to support the Constitution of the State.
The South Dakota Constitution (Section 1, Article 3) requires the Legislature to enact such initiative measure and submit the same to the vote of the people. Consistent with the constitutional mandate, the statutes necessary to activate the right of initiative and referendum (SDCL 2-1) require the Secretary of State to transmit certified copies of such initiative petition to the Legislature, "and the Legislature shall enact and submit all such pro· posed measures to a vote of the electors of the state at the next general election." (SDCL 2-1-2)
In view of the patent fact that the next general election following the 1970 legislative assembly will occur in November, 1970, the Legislature has a duty to enact such initiative statute, repealing said Chapter 112, Session Laws of 1969, and submitting such to the electorate at the 1970 General Election. This duty should not be shirked. This duty requires enactment and submission to the electorate, irrespective of the desires of any or all the individual members of the Legislature. If such measure is submitted to a committee-it would seem that in view of the imperative duty to enact, that committee consideration could easily be dispensed with-such committee has only one choice. It must report such bill with a "do pass" Without amendment as to the substance of such bill, and report the same for action in time that such may be enacted by both branches of the Legislature and submitted to the Governor within the time limitations of the joint rules. The Governor, of course, has no right to veto such measure. He has but one duty-to sign such bill or allow it to become a statute, to be submitted to the electorate at the next general legislation, without his signature. Inasmuch as the exercise of the initiative is of seldom occurrence in South Dakota, I am taking the liberty of suggesting a proper title and body to the initiative measure in question. May I say this is patterned after the last initiative measure submitted in South Dakota, namely, Chapter 19 of the Session Laws of 1949. I should also add that such Bill can originate in either the House of Representatives or the Senate.
.................................. BILL NO …………………………………..
Introduced by ……………………………………………………..
AN ACT ENTITLED, An Act enacting and submitting to a vote of the electors of the State a proposed law entitled an act to repeal Chapter 112 of the South Dakota Session Laws of 1969 requiring fluoridation of South Dakota municipal water supplies.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Whereas, under the provisions of Section 1 of Article III of the Constitution of the State of South Dakota, and SDCL Chapter 2.1 a petition has been filed in the office of the Secretary of State signed by more than five per centum of the qualified electors of the state in the manner and form therein directed; petitioning that the following proposed law be enacted and submitted to a vote of the electors of the state at the next general election, certified copies of said petition having been transmitted to the Senate and House of Representatives by the Secretary of State.
That Chapter 112 of the South Dakota Session Laws of 1969 be, and the same is hereby, repealed.
Respectfully submitted,
Gordon Mydland
Attorney General
