STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

November 20, 1968

Oren P. Coler, Chairman
Statute Compilation Commission
Pierre, South Dakota

OFFICIAL OPINION NO. 68-42

Citation of statutes in 1969. Legislative Enactments

Dear Mr. Coler:

You have requested my official opinion in answer to this question:

"Would it be proper during the 1969 Legislative Assembly when amending, repealing, or adding to an existing statute, to designate the same not only by its prior designation, but also by the section number assigned thereto in the 1967 Compiled Laws of South Dakota, authorized by prior legislative enactment and now in process of preparation?"

(As an example or illustration, you have asked would this be a proper title: "An Act to amend SDC 1960 Supp. 33.0809, as amended, being SDCL 1967, Sec. 15-7-6"?)

As background for such question you have advised that all existing statutes of the state up and through the 1967 Legislative Assembly have been assigned a section number in such 1967 Compiled Law. You have also pointed out that such practice of citing a new code has been indulged in the past, and as illustrative thereof, point out that the Title to Chapter 68 of the Session Laws of 1893 was as follows:

"An Act to amend Section 5458 of the Compiled Laws, being Section 644 of the Code of Civil Procedure, relating to cross judgments for title to land and improvements thereon."

It is my opinion your question should be answered YES. I may add that I believe it is proper, and as a practical matter, preferable that in addition to citing the statute in question under its "old" and its "new" designation that the phrase "relating to-with a brief description of the subject matter" be added thereto. In my opinion this addition would be considered surplus age and it gives to the interested person an idea of the subject matter of such proposed legislation.

The whole problem of titles to legislative bills arises from Section 21 of Article III of our Constitution which provides that:

"No law shall embrace more than one subject, which shall be expressed in its title."

This constitutional provision has resulted in numerous pronouncements by our Supreme Court, but basically its purpose was summed up in STATE v. MORGAN (1891), 2 SD 32, 48 NW 314 (Writ of Error dismissed, 159 US 261, 15 S. Ct. 1041, 40 L ed 145, which still stands as the proper test to determine whether or not any enactment of the Legislature may violate such constitutional provision).

It is of course settled that a title to an act proposing either an amendment to existing statutes or new material must inform the reader of the subject matter of such legislation. In STATE EX REL MILLERKE v. NISBET, 48 SD 347, 161 NW 351 (and approved in State ex rel Smith v. Jameson, 70 SD 503, 19 NW 2d) 505, our court approved of a title which stated it was amending an existing statute. The rationale behind such holdings is that by a reference to a definite existing statute, the interested person could refer to such existing law and read the same and determine the variance between it and the proposed amendment, and thereby be advised as to the subject matter of such litigation.

During the last several sessions, in the title to proposed legislation, it has been suggested that therein, if the amendment were to a section of the 1960 Compilation of the Statutes of South Dakota, that proper usage in such title be:

"An Act to amend Section --- of the 1960 Supplement, to the South Dakota Code of 1939..."

and in the body of the Act to provide: "SDC 1960 Supp. ---, be, and the same hereby is, amended to read as follows: . . ." This suggestion, in my mind comes not from any constitutional or legislative mandate, but merely for uniformity in titling acts. The use of SDC 1960 Supp. or Section of the 1960 Supplement to the South Dakota Code of 1939, is merely a device to insure that the interested person may acquaint himself with the particular statute being amended. Either usage is constitutionally and legislatively correct.

Being advised that the Supreme Court of South Dakota has approved the suggested title, and being of the opinion that reference to the 1967 Compilation of the Statutes of South Dakota, of itself is not violative of either the Constitution or statute, I have reached the conclusion previously stated, that the answer to your question must be in the AFFIRMATIVE.

Respectfully submitted,

Frank L. Farrar
Attorney General