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Part Two The South Dakota Constitution and Commentary, Art.XXI Miscellaneous

From: The South Dakota State Constitution

Patrick M. Garry

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

(p. 257) Article XXI  Miscellaneous

Section 1  Seal and Coat of Arms

The design of the great seal of South Dakota shall be as follows: A circle within which shall appear in the left foreground a smelting furnace and other features of mining work. In the left background a range of hills. In the right foreground a farmer at his plow. In the right background a herd of cattle and a field of corn. Between the two parts thus described shall appear a river bearing a steamboat. Properly divided between the upper and lower edges of the circle shall appear the legend, “Under God the People Rule” which shall be the motto of the state of South Dakota. Exterior to this circle and within a circumscribed circle shall appear, in the upper part, the words, “State of South Dakota,” in the lower part the words, “Great Seal,” and the date in Arabic numerals of the year in which the state shall be admitted to the union.

Section 2  Salary of Constitutional Officers

The Legislature by two-thirds vote of each branch thereof at any regular session may fix the salary of any or all constitutional officers including members of the Legislature. In fixing any such salary the Legislature shall determine the effective date thereof and may in its discretion decrease or increase the salary of any officer during his term.

(p. 258)

The original text of this section provided fixed salaries for the constitutional officers of the state, with limited authority in the legislature to increase the salaries of the governor and the judges of the state courts. Proposed amendments dealing generally with increasing salaries, were rejected in 1916, 1918, 1920, 1922, 1926, 1930, and 1932. A proposed amendment rejected in 1942 would have set the salary of the supreme court judges at $6,000. An amendment approved in 1946 rewrote this section in its present form.

Section 3  Oath of Office

Every person elected or appointed to any office in this state, except such inferior offices as may be by law exempted, shall, before entering upon the duties thereof, take an oath or affirmation to support the Constitution of the United States and of this state, and faithfully to discharge the duties of his office.

A proposal to repeal this section was rejected by the voters on November 5, 1974.

The South Dakota Supreme Court, in applying this section, has held that the office of assessor is an inferior office (Potts v. Miller, 1959).

Section 4  Exemptions

The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sale a homestead, the value of which shall be limited and defined by law, to all heads of families, and a reasonable amount of personal property, the kind and value of which to be fixed by general laws.

A proposed amendment, rejected in 1894, would have made the homestead exemption ineffective against mortgage foreclosures, vendors’ liens and improvement liens. A proposal rejected in 1976 would have repealed this section, as well as Section 5.

As the South Dakota Supreme Court has explained, the purpose of creating the homestead exemption is to provide a family with a home that is protected and secure against the claims of creditors. No inroads upon the homestead exemption are to be recognized, except those that are clearly consistent with constitutional mandates and clearly expressed by the legislature (Brodsky v. Maloney, 1960). The object of all homestead legislation, according to the court, is to furnish shelter for the family, as well as to promote the interests and welfare of society by restricting alienation or encumbrance (Beck v. Lapsley, 1999).

Section 4 is not self-executing. It requires the legislature to enact laws creating a homestead exemption, the value of which is limited and defined by law (Somers v. Somers, 1914). This section exempts from a forced sale the (p. 259) homestead and a reasonable amount of personal property, with a mandate to the legislature to define the limits of that homestead and a reasonable amount of personal property. This section was violated by a homestead statute stating that the homestead exemption “shall not be limited” for a person who is 70 years old, since Section 4 states that the value of the exemption “shall be limited and defined by law” (In re Davis, 2004).

Under this section, the legislature does not have power to differentiate between debts nor discriminate between creditors by providing that the homestead be subject to certain debts but not to others. The legislature only has power to define the homestead and specify the property or limit the amount in value that shall be exempt (Home Lumber Company v. Heckel, 1940).

Although this section grants the homestead exemption to the head of the family, the section does not limit the legislative power to define heads of families. For instance, an individual in the occupancy of a homestead constitutes a family under the homestead law (Somers v. Somers, 1914). The court has been somewhat liberal in extending homestead rights. For instance, where the head of a family owning no other residence purchases the site of an intended home and begins erection of that house, with the intent to establish it as a place of residence for himself and his family, and such intention is followed by occupancy as soon as the house is completed, the property possesses the homestead character even before the house is completed (Brodsky v. Maloney, 1960).

The right of homestead may be waived, just as any other right can be waived (Schutterle v. Schutterle, 1977). With respect to the waiver issue, a mortgagee does not violate the “forced sale” clause of Section 4 by foreclosing on a mortgage that contains a clause allowing the mortgagee, upon default by mortgagor, to foreclose and sell the property (In re Kelley, 1980). Essentially, the sale of a homestead under a power of sale contained in a mortgage agreement is not a forced sale within the meaning of Section 4 (Karcher v. Gans, 1900).

The homestead right is not an estate in land but is a privilege granted by the legislature in fulfillment of the constitutional mandate in Section 4 (In re Clouse’s Estate, 1934). It consists of the right of occupancy given to the surviving spouse and minor children, and does not pass by succession. Thus, when the need for protection for the family ceases, there is no longer any reason for the homestead (Wisner v. Pavlin, 2006).

Section 5  Rights of Married Women

The real and personal property of any woman in this state, acquired before marriage, and all property to which she may after marriage become in any manner rightfully entitled, shall be her separate property, and shall not be liable for the debts of her husband.

(p. 260)

A proposed repeal of this section was rejected in 1976. This proposal would have also repealed certain portions of Article VI, as well as Sections 4 and 18 of Article XVII, and would have added new sections to Article VI.

There is little in the record regarding this proposed repeal. A 1975 session law (1975 S.L. ch. 3) provided, along with numerous other proposed amendments, that Section 5 of Article XXI would be repealed. At the time, there was no information put out by the secretary of state regarding the repeal of Section 5.

Section 6  Drainage of Agricultural Lands

The drainage of agricultural lands is hereby declared to be a public purpose and the Legislature may provide therefor, and may provide for the organization of drainage districts for the drainage of lands for any public use, and may vest the corporate authorities thereof, and the corporate authorities of counties, townships and municipalities, with power to construct levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this state, by special assessments upon the property benefited thereby, according to benefits received.

An amendment, adopted in 1906, added this section to the constitution.

Under this section, drainage of lands for any public use other than the drainage of agricultural lands must be carried out by drainage districts established by the legislature (Risty v. Chicago, R.I. & P. Ry. Co., 1924). Furthermore, pursuant to both this section and relevant statute, there is the same authority to repair an old ditch that there is to construct a new one (Gilseth v. Risty, 1923).

Section 7  Irrigation of Agricultural Lands

The irrigation of agricultural lands is hereby declared to be a public purpose and the Legislature may provide for the organization of irrigation districts for the irrigation of land, and may vest the corporate authorities thereof and the corporate authorities of counties, townships and municipalities with the power to construct, operate and maintain irrigation dams, reservoirs, canals, flumes, ditches and laterals, and to keep in repair all irrigation dams, reservoirs, canals, flumes, ditches and laterals heretofore constructed, under the laws of the state, by special assessments upon the property benefited thereby, according to the benefits received.

This section was added to the constitution in 1916, after having been rejected in 1914.

This section authorizes the legislature to delegate various powers to conservancy districts. Except for the limitations of area and power, as defined by statute, a conservancy sub-district necessarily partakes of the same governmental characteristics as its parent body. Although it is not a true municipal (p. 261) corporation, it is vested with some of the powers and attributes of a municipality and hence may be described as quasi-municipal (In re Oahe Conservancy Subdistrict, 1971).

Section 8  Hail Insurance

The providing of insurance against loss or damage to crops by hail is hereby declared to be a public purpose, and the Legislature is authorized and empowered to levy an assessment upon agricultural land for such purpose, with such exemptions as may be provided by law. The state may be divided into hail insurance districts and the assessment per acre in the different districts shall be as the Legislature may determine, but such assessment shall be uniform upon all land of the same district that is similarly situated. The assessment hereby authorized may be levied by the Legislature direct, or by the corporate authorities of the districts herein provided for, or by such other agency as may be authorized by general law.

This section was added to the constitution in 1918. According to the South Dakota Supreme Court, this section, which requires that the assessment for hail insurance be uniform on all land similarly situated in the same district, nullified a statute fixing the annual premium for state hail insurance in each of four districts and specifying that the insurance would take place in some of the counties on different dates than in others (Stavig v. Van Camp, 1923).

Section 9  Marriage

Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota.

By an amendment designated as Constitutional Amendment C, this section was approved on November 7, 2006 and added to the constitution.(p. 262)