I cannot agree that, because in assigning administrative or political functions to state legislatures the constitution excludes all other state agencies, the same conclusion is forced where, as in art. I, § 4, a specific lawmaking task is vested in them. Judgment based only upon identification of the agency selected ignores the more important factor of the kind of action demanded. Administrative and political action proceed in their own way and subject to their own peculiar limitations. Legislative action — lawmaking — is something very different, especially in a republic.
The necessity of submitting the result to executive approval or veto and the right to pass over a veto (although not found in all states) have from the beginning been characteristic of American constitutional government. Few other subjects gave the constitutional convention so much difficulty. Its members considered that the power of any legislature to make laws might wisely be subjected to a qualified executive veto. They so conditioned the lawmaking power of congress. It could well have been contemplated therefore that while any other kind of action would be by the legislature alone, the purely legislative function of lawmaking would be subject to conditions imposed by the state constitutions.
Wanted in every such case is state action. McPherson v. Blacker, 146 U.S. 1, 2, 13 S.Ct. 3, 36 L. ed. 869. The legislatures but speak for the states. The manner of their speaking naturally is that best suited or ordinarily resorted to for disposing of the matter in hand. If the latter requires lawmaking, then lawmaking of the ordinary kind and in the ordinary way must be contemplated.
That the convention was consciously dealing with a lawmaking function in art. I, § 4, is clear. The idea is suggested in the word "prescribed." It is confirmed by the grant to congress of the power "by law" to make or alter regulations made by the states. "The times, places and manner of holding elections" are not only appropriate to be dealt with by lawmaking but also wholly inappropriate to any other process. So I cannot conceive that the intention was any other than that the task assigned should be performed *Page 245 by ordinary state legislation. Any restriction of state power to subject the lawmaking of its own legislature to executive veto must rest on remote and unnecessary implication, and so there is no such restriction.
Because under American theory the people themselves are the source of all governmental powers and the federal constitution but a grant of some, there is merit in the reasoning of the judges in State ex rel. Schrader v. Polley, 26 S.D. 5,127 N.W. 848. We never think of any reserved power of the states as one granted by the federal constitution to the new government and as immediately regranted by the same instrument to the states. But without bothering over mere language, the power now in question was plainly vested and confirmed in the state legislatures, however constituted. So far, the provision was satisfactory to the states at the time.
But, Judge Story tell us, the whole section "was afterwards assailed by the opponents of the Constitution, both in and out of the State conventions, with uncommon zeal and virulence. The objection was not to that part of the clause which vests in the State legislatures the power of prescribing the time, places, and manner of holding elections; for so far it was a surrender of power to the State governments. But it was to the superintending power of Congress to make or alter such regulations." Story, Constitution (4 ed.) § 815.
There is no difference of substance between the South Dakota view that the power was "reserved" by the state governments and that of Judge Story that it was surrendered to them. They agree that the power remained in the "state governments." Had the state conventions or any single member of any of them considered any other view tenable, the debates would show it. The "uncommon zeal and virulence" of the opponents of adoption were such that not even slight and technical objections to the new national government were overlooked. This one, if anyone had thought of it at all, would have been made much of, for the whole fight on the constitution was grounded on its effect as a surrender of state power. *Page 246
McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3,36 L. ed. 869, is helpful only by contrast. The power there involved, of the state legislatures in the selection of presidential electors, was not legislative but political in character. State ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S.Ct. 708, 710,60 L. ed. 1173, seems to me decisive of the main question. The power of congress principally discussed was that to decide what is republican government within the constitutional guaranty thereof to the states. It is to that alone that Mr. Chief Justice White directed most of his reasoning dealing with the powers of congress. It was considered plain, assuming the power had been invoked, that congress had recognized, in the act of 1911, that the referendum did not introduce any such "virus" as to make the Ohio state government other than republican. It was not held that congress had any power whatsoever to make or unmake the referendum as a part of the state legislatures as meant by art. I, § 4. On the contrary, the states are repeatedly referred to, in respect to their functions under that section, as acting "through their legislative authority" or as exercising "state legislative power for the purpose of creating congressional districts by law." That is, "legislature" as used in art. I, § 4, was considered synonymous with "the legislative power" of the states. Hence, it was concluded, the involved redistricting act was properly subject to veto by referendum under the Ohio constitution.
That conclusion is impossible unless art. I, § 4, invokes thewhole legislative power of the states.
In that assertion I do not overlook the discussion by the court of the act of congress of 1911 and its effect, "in so far as Congress had power to do" it, of recognizing the validity of a referendum on a state redistricting act. The limitation, "in so far as Congress had power to do," is significant. Whatever power is possessed by the states or their legislatures has been the same ever since the constitution was adopted. Theexercise of that power is subject to supervision (Ex parte Siebold, 100 U.S. 371, 25 L. ed. 717) but the grant of it not to modification, by congress. That body can no more modify or impose new conditions on the constitutional confirmation *Page 247 of state power than it can amend the grant of its own. So it cannot say how or by whom the state power shall or may be exercised. It cannot say of what a state legislature may or may not consist for the purpose of its exercise.
Congress may "by law" make its own "regulations" or alter those of the states. It cannot say either that the state regulations shall or shall not be subject to veto by executive or people. That would be to amend the constitutional confirmation of power in the state legislatures, which has always meant either that their power was or was not subject to such veto. The act of congress of 1911, while it could not change the constitution, could and did construe it. The interpretation was that the whole legislative power of the state was invoked, the referendum to be or not to be a part of it as determined by the fundamental law of each state.
If, as we now decide, the term "legislature," as used in art. I, § 4, does not refer to the legislative power of the state, however exercised, but is confined to the members of the legislatures as such and so excludes executive veto, it equally excludes veto by referendum, and both the opinion of congress and the decision in the Hildebrant case, 241 U.S. 565,36 S. Ct. 708, 60 L. ed. 1173, are wrong.
That case was distinguished in Hawke v. Smith, 253 U.S. 221,229, 40 S.Ct. 495, 498, 64 L. ed. 871, 10 A.L.R. 1504. An Ohio referendum was again in question. It was held without effect on the ratification by the legislature of an amendment to the federal constitution. The argument that to require approval by referendum was simply one for ratification by the legislative action of the state was considered "fallacious in this — ratification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the State to a proposed amendment."
The Hildebrant case, 241 U.S. 565, 36 S.Ct. 708,60 L. ed. 1173, was considered "inapposite" because, first, as said there: "Congress had itself recognized the referendum as part of the legislative authority of the State for the purpose stated." (As already shown, congress could not make or unmake the referendum as part of the legislative power of the state for that or any other purpose. The *Page 248 most it could do was to recognize, as it did by the act of 1911, that it was part of the legislative process in some states.) The court went on to say next [253 U.S. 230]:
"It was held [in the Hildebrant case] * * * that the referendum provision of the state constitution when applied to a law redistricting the State with a view to representation in Congress was not unconstitutional. Article I, § 4, plainly gives authority to the State to legislate within the limitations therein named. Such legislative action is entirely different from the requirement of the Constitution as to the expression of assent or dissent to a proposed amendment to the Constitution. In such expression no legislative action is authorized or required."
We are dealing now with legislative action. It is established that, if required by a state constitution, the referendum is a part of the legislative process. It must be equally true that, when made so by a state constitution, executive approval and veto are parts of the same process and so not excluded by art. I, § 4.
I cannot concur either in putting aside so easily the argument that there has been a persuasive, if not a controlling, practical construction contrary to the conclusion of the majority. It is always easy for a court to remove a case from the reach of any sort of construction simply by asserting a lack of room for it. The contrary opinion of the court of last resort of our sister state of South Dakota is enough to make a real question. The comment already cited from Judge Story shows that the state ratifying conventions considered that the power concerning times, places, and manner of electing congressmen was left to untrammeled state action, except for the superintending function of congress. The latter was all they objected to.
Without adequate historical search, my impression is that never heretofore has there been serious question that the states have the whole power of legislative action in the matter, except as congress may make its own regulations or alter those of the states. Minnesota is but one of many states (all of them so far as I know) where congressional redistricting has been always by ordinary statute. *Page 249 The present chief justice of the United States, when governor of New York, expressed himself on the subject of congressional redistricting to an extraordinary session of the legislature in 1907 as follows:
"It is not my purpose to propose a particular plan of apportionment. It is the function of the legislature to formulate such plan and submit it by suitable bill for executive action." Public Papers of Charles E. Hughes, New York, July 8, 1907, p. 52.
Congress has always assumed that congressional redistricting could be by ordinary state legislation, participated in by the executive through the right of veto where required by fundamental state law. That it has considered also that such legislation may be subject by state law to veto by referendum is plain from the act of 1911 and the debates concerning it. 47 Cong. Record, 3436, 3437, 3507.
One thing more. Our legislature thought that it was proceeding in the ordinary way by "A bill for an act," which before becoming effective as law would need approval by the governor unless passed over his veto. As such and not otherwise, it was submitted to him. Only the lower house, after his veto and in default of repassage, ordered the measure filed with the secretary of state. It strikes me that we ought not so far to disregard the intention of our own legislature as to say that its purpose was other or different from what so plainly appears, that is, to enact state law in the ordinary fashion but first to subject it to executive disapproval. So possibly we do not have before us the question that would arise had the legislature intentionally proceeded independently of the governor. The scope of their action they themselves define so plainly as to negative that intention. They attempted only to enact a state law. I question whether we can exempt it from any of the applicable provisions of our state constitution.
As to the substance of the measure, I agree that we cannot hold it a transgression of legislative power. I agree also that the act of congress of 1911 is wholly superseded by the one of 1929.
For the reasons above given, I think that the order appealed from should be reversed. *Page 250