(dissenting).
I dissent.
The people of this state have a right to vote on the Dakota Compact, but in my opinion, that right should be exercised according to Article III of the South Dakota Constitution, relating to initiative and referendum. After much debate and deliberation, our forefathers devised an orderly procedure for the people to legislate (by initiative), or veto acts of the legislature (by referendum).
The best constitutional vehicle for opponents of the Dakota Compact to bring the law to a vote of the people was the referendum. It was not, however, timely invoked. Perhaps because opponents of the Compact were lulled to sleep by the provisions of Chapter 240. Nevertheless, they may still initiate a repealer and obtain a vote of the people on the Compact in the 1986 general election, as the Compact provides:
Any party state may withdraw from this Compact by enacting a statute repealing its enacting legislation. Unless permitted earlier by unanimous approval of the commission, withdrawal shall take effect five years after the governor of the withdrawing state has given notice in writing of withdrawal to the commission and the governor of each party state. No withdrawal may affect any liability already incurred by or chargeable to a party state prior to the time of withdrawal.
1985 S.D.Sess.L. ch. 287 Art. Ill (General Provisions) (emphasis added).
In my opinion, the election suggested for November 12, 1985, is illegal and unconstitutional for the following reasons.
An election can only be held when authorized by law. Kane v. Kundert, 371 N.W.2d 172 (S.D.1985); Sioux Falls Electric Light & P. Co. v. City of Sioux Falls, 21 S.D. 18, 108 N.W. 488 (1906); State v. Gardner, 3 S.D. 553, 54 N.W. 606 (1893); In re Supreme Court Vacancy, 4 S.D. 532, 57 N.W. 495 (1894).
With the exception of a special election to fill a congressional vacancy under SDCL ch. 2-11, South Dakota Law makes no provisions for special elections. A joint resolution, such as HJR 1005, is not a law and cannot authorize an election. As to this, in State v. Summers, 33 S.D. 40, 54, 144 N.W. 730, 734 (1913), we quoted McDowell v. People, 204 Ill. 499, 68 N.E. 379 (1903), which stated that “ ‘[a] resolution or order is not a law, but merely the form in which the legislative body expresses an opinion.’ ” (Emphasis added.)
It is claimed that Chapter 240 of the 1984 South Dakota Session Laws requires an election before the Dakota Compact (Chapter 287, 1985 Session Laws) can be effective. Section (6) of Chapter 240 provides that the election referred to in the Act “means the next regularly scheduled statewide general election unless a special election is warranted to meet legal deadlines as defined in the Low-Level Radioactive Waste Policy Act and the Nuclear Waste Policy Act.” 1985 S.D.Sess.L. ch. 240, § 4(6).
The problem with calling a special election under Chapter 240 concerns who decides whether such an election “is warranted to meet legal deadlines.... ” Is it the Secretary of State, the Governor, the Legislature, Supreme Court, or some other governmental body? The answer to this question is not contained within the parameters of Chapter 240.
While the legislature may delegate the responsibility of working out the details of a law, the discretion entrusted to the legislature to choose policies and make law cannot be delegated. Boe v. Foss, 76 S.D. 295, 77 N.W.2d 1 (1956). The legislature, of course, must provide a guide or standard to direct the body charged with working out the details of a law, otherwise, there would be an unconstitutional delegation of uncontrolled discretion and arbitrary power. The legislature must declare the policy of the law to guide an administrative agency or other governmental body, and fix the legal *198principles which are to control in given cases. Cooley, Constitutional Limitations, at 229. Then, as Chief Justice Marshall put it, others can act “to fill up the details” under the general provisions made by the legislature. Wayman v. Southard, 10 Wheat. 1, 43, 23 U.S. 1, 43, 6 L.Ed. 253 (1825).
In my opinion, the provisions of 1985 S.D.Sess.L. ch. 240 must fail for, by its language, “unless a special election is warranted to meet legal deadlines” there has been an unlawful delegation of legislative power to some unknown entity. Perhaps, if section six of Chapter 240 had specified that our legislature was the governmental body charged with making the decision as to whether a special election is warranted, we might hold that the legislature could exercise its power without standards and adopt the resolution. But the legislature did not and could not rehabilitate section six of Chapter 240 by resolution. Thus, there is no law authorizing a special election and, under the provisions of section six, no governmental body, including the legislature, has been authorized to call one.
Further, I believe that HJR 1005 and Chapter 240 provide individually or in concert for an unconstitutional referral of a statute to a vote of the public. As the majority opinion states, “[t]he right to initiate and refer legislation ... ‘is not self-executing and is subject to constitutional, legislative and administrative provisions, statutes and rules so as to protect the implementation and integrity of this process.’ ” (Citing Baker v. Jackson, 372 N.W.2d 142, 145 (S.D.1985). The majority cites State ex rel. Cranmer v. Thorson, 9 S.D. 149, 68 N.W. 202 (1896), for the proposition that the legislature has the power to refer its acts to a vote of the people. This power was removed, however, with the adoption of Article III, § 1 of the South Dakota Constitution, which mandates that an initiative or referendum vote can only be invoked by a petition of five percent of the qualified electors of the State. While the majority cites State v. Summers, 33 S.D. 40, 144 N.W. 730 (1913), as authority for the argument that Article III did not alter the power of the legislature to refer its acts to the public, the language referred to in that case was merely dictum.
The South Dakota Constitution is a limitation upon the legislative power which may not be exercised in any manner that is expressly or inferentially proscribed by the constitution. Clem v. City of Yankton, 83 S.D. 386, 160 N.W.2d 125 (1968); Kramar v. Bon Homme County, 83 S.D. 112, 155 N.W.2d 777 (1968); In re Watson, 17 S.D. 486, 97 N.W. 463 (1903). Article III, § 1 of the South Dakota Constitution was adopted by the people of South Dakota as the orderly procedure to invoke an initiative or referendum. Any attempt to change this procedure is inconsistent therein and, unconstitutional. As the United States Supreme Court ruled years ago, an unconstitutional law “is not a law; it confers no right; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it has never been passed.” Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, 1125, 30 L.Ed. 178, 186 (1885). An election not specifically authorized by law is a nullity. Sioux Falls Electric, supra; In re Contest of Election of Vetsch, 245 Minn. 229, 71 N.W.2d 652 (1955); 29 C.J.S. Elections § 66 (1965). Therefore, I would grant the writ of prohibition.
I concur with the opinion of the majority that plaintiffs have standing to commence these proceedings.
I am authorized to state that Chief Justice FOSHEIM joins in this dissent.