STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 16, 1970

Miss Alma Larson
Secretary of State
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-23

Initiated measures submitted to electors at general elections must be printed in full. SDCL 12-13-3

Dear Miss Larson:

This office has received several requests from interested parties to answer this question:

Do the South Dakota statutes require that the full text of any and all initiative measures to be submitted to the electors at the general election be printed in the official newspapers of the several counties of South Dakota?

We can take judicial notice that the use of the initiative as a method of enacting South Dakota statutes is most infrequent, but that two such measures will appear on the 1970 general election ballot. This question has not heretofore been answered by an official opinion of this office. Because of the importance of such question, I am taking the liberty of issuing my opinion in answer to such question, and addressing such answer to you for dissemination throughout the state.

We know that our statutes provide that initiated laws, referred measures, and constitutional measures may be submitted to the electorate at general elections for the approval or disapproval of the electors of the state. The problem presented by our statutes appears in SDCL 12-13-2 and 12-13-3.

12-13-2 requires the county auditor of each county on or before the first day of October of each year when there shall be a general election, to mail to each official newspaper of the county "a copy of all referred laws or amendments to the Constitution" to be voted on at such election.

12-13-3 in part provides:

It shall be the duty of each official newspaper of the county to publish in its weekly edition or once each week in its daily edition for two weeks prior to each general election, full copies of all referred laws and proposed amendments to the Constitution to be voted on at such election . . .

A casual reading of these two statutes, applied to the above stated fact that we have "initiated measures," "referred laws," and "constitutional amendments" submitted to the voters, would justify the finding that the statutes do not require the publication of the full text of initiative measures in pursuance to SDCL 12-13-3.

It has long been settled however, by our courts, that once the legislative intent and purpose for any particular statute is found, that the statute must be interpreted to accomplish such intent and purpose, rather than to follow the literal meaning of the statute. The first pronouncement of this principle of law appears in Quebec State Bank v. Carroll (1890) 1 SD 1, 44 NW 72d, when our court said:

It often becomes a question of difficulty to determine whether a particular cause comes within the statute; and in such case the object of the statute, and the purpose and intention of the Legislature are to be considered. The particular case may come within the letter of the statute, and yet not within the intention and purpose of the legislature; as when it was enacted "that whoever drew blood in the street should be punished with the utmost severity, it was held not to include a surgeon who opened the vein of a person having a fit on the street." If a case comes within the intention of the makers of the statute, it is within the statute, though by a literal construction it may not be within its letter. (Cases from New York cited.) The present case comes within the intention of the Legislature.

The Source Notes of the 1967 Compilation of our laws reveals that the above quoted statutes originated in Chapter 107 of the Session Laws of 1913. A reading of this "root source" reveals that SDCL 12-13-2 is in the exact language of Section 4 of said Ch. 107, and that SDCL 12-13-3 is substantially in the same language as Section 5 of said Chapter 107. Section 3 of Chapter 107 of the Session Laws of 1913 provides, as does SDCL 12-13-8, that only the titles of initiated measures, referred laws, and constitutional amendments need appear on the ballots submitted to the voters.

Thus it appears that from the inception of a legislative requirement for publication of full texts of these matters to be submitted to the electors at the general election, the Legislature referred to such constitutional amendments and referred laws. What did the Legislature intend to be encompassed within the term "referred laws?"

It is my opinion that the Legislature, by requiring publication in full of measures to be submitted to the electorate for its approval, had the intent and purpose to avail the full text of such measures to be available for any interested voter to read before he expressed himself on such measure on the ballot. To accomplish this purpose, it is my contention that the Legislature, by using the descriptive term "submitted law," referred to any measure or enactment which was submitted for final enactment or disapproval of the electorate. This includes not only measures subject to the referendum, but also measures subject to the initiative. Each of these measures is subject to final adoption or rejection by the vote of the electorate.

In the language of the court in Quebec State Bank v. Carroll, the present inquiry comes within the intention of the Legislature, even though it may be thought that it does not come within the literal meaning of the statute. My answer to the question presented is in the affirmative. It is the duty of each county auditor on or before the first day of October of each year in which a general election is held, to submit a copy of the full text of each initiated measure (as well as referred measures, and constitutional amendments) to each official newspaper within the county, and it is the duty of such official newspapers to publish the full text of such measures-initiated, referred, or constitutional amendments-for two weeks prior to such election as provided in SDCL 12-13-3.

Respectfully submitted,

Gordon Mydland
Attorney General