(p. 3) The Drive to Statehood
On March 2, 1861, President James Buchanan signed the bill that created the Dakota Territory.1 Within this territory were included the present states of North and South Dakota, Montana, and Wyoming. President Abraham Lincoln then appointed William Jayne of Illinois as the first governor of the territory. The first territorial legislature convened on March 17, 1862 in Yankton, chosen as the first territorial capital over Sioux Falls, an older town, and Vermilion, the largest town in Dakota.2 The territorial bill had been preceded by a convention held in Sioux Falls on September 18, 1858, during which representatives called for an election of a provisional territorial legislature that would petition Congress to officially designate a Dakota territory.3(p. 4)
After creating the Dakota Territory, the U.S. government gave it little attention, given its preoccupation with the Civil War.4 Congress subsequently created the Idaho Territory, made up of the present states of Montana and Wyoming, leaving the Dakota Territory with the present states of North and South Dakota. In 1864, the present state of Montana became its own separate territory, and Wyoming was moved back into the Dakota Territory. This division held until 1869, when Wyoming was again established as a distinct territory.5 The last change made to the Dakota Territory occurred in 1882, when a small area was carved away from the territory along the Niobrara River and ceded to Nebraska.
The first territorial legislature was called the “pony Congress.”6 Moses Armstrong, who was a member of this first legislature, described it as follows:
This pioneer legislature was made up of a strange medley of men. There were among them gentlemen of scholarly attainments and graduates of the highest eastern colleges; also lawyers of brilliant abilities and large experience, educated ministers and doctors, and rough frontiersmen in buckskin suits, beaded moccasins and long hair.7
To provide for local government, the legislature divided the territory into counties and townships that would engage in such functions as building roads, establishing schools, and imposing local taxes.8
Railroads played an important role in Dakota’s territorial development. In addition to serving as a means of transportation, the railroads also became landholders and real estate speculators.9 Reflecting the public’s fear of railroad political influence, the Yankton Press and Dakotan, for instance, claimed that the railroads were drafting the railroad charter laws for the territorial legislature.10
Pressures for Territorial Division and Statehood
When there was sufficient population in the territory, the settlers in the Dakota Territory began pursuing statehood.11 After 1868, efforts intensified toward the admission of Dakota, either as a single state or two different states.12 In 1871, (p. 5) the territorial legislature asked Congress for a division of the territory along the forty-sixth parallel. Additional requests were subsequently made, and during the 1881–1882 legislative session a delegation of one hundred citizens went to Washington, D.C. to petition Congress to divide the territory.13
In many respects, a north-south division of the territory seemed most logical. The much smaller population in northern Dakota lived a great distance from the population centers in the lower Missouri Valley, in what would be South Dakota. The first settlers in southern Dakota were mostly small farmers, whose trade primarily went through Chicago and Sioux City.14 The residents of northern Dakota, however, farmed on a larger scale and specialized in wheat, trading primarily through Minneapolis and St. Paul. No direct transportation link existed between northern and southern Dakota, and for years the residents of one area had to travel through Minneapolis to reach the other area.15
Several petitions for territorial division had been introduced in Congress by the early 1880s.16 An early attempt to achieve statehood occurred in the wake of the Black Hills gold rush, when sufficient numbers of immigrants had arrived in the territory to meet the 60,000 population requirement.17 In 1879, General W. H. H. Beadle, the territorial superintendent of public construction; Dr. Joseph Ward, the founder of Yankton College; Hugh Campbell, United States Attorney; and Governor William Howard outlined a plan for statehood for southern Dakota.18 They created a nonpartisan organization dedicated to the division of the Dakota Territory and to statehood for the southern half.19 This organization helped call for a delegate statehood convention at Canton in June of 1882.(p. 6)
General Beadle was particularly committed to statehood because he believed that only a state constitution could adequately protect the lands set aside for public education. (Indeed, a central focus of the organization created in 1879 was the preservation of the school lands.20) Under General Beadle’s leadership, the statehood movement created a citizen’s league with auxiliaries in every county. By 1882, the league added its voice to the demand for the Canton meeting, which in turn would consider the advisability of a constitutional convention.
During the Great Dakota Boom of 1878–1887, the population in the entire Dakota territory increased substantially, which in turn further intensified the movement for statehood. At first, statehood seemed readily attainable, given the population of the territory, and it was generally assumed that two states would be formed.21 However, this process would end up taking more time than most statehood advocates anticipated.
From 1880 to 1884, a quarter of a million people moved to the Dakota Territory.22 Many of these settled in the James River Valley area. Railroad construction also increased to the point where mapmakers had difficulty keeping up with all the map revisions.23 The railroad played an influential role in creating the State of South Dakota.24 From 1872 to 1880, seven hundred miles of railway were built, with new construction the following four years increasing even more.25 Moreover, all of this construction led to speculation over town sites and the location of county seats.26
Debate over the Territorial Capital
As the population in the territory increased, and to respond to the growth of population in the northern and central sections of Dakota, demands arose to move the capital. For nearly twenty-five years, Yankton had greatly influenced the territory, but as the rest of the territory became settled, Yankton’s political position began to erode.27
With the Dakota Boom, the population growth moved northward into the James River Valley, which in turn increased the pressure to move the capital. By 1883, the towns of Mitchell, Huron, Pierre, Aberdeen, and Watertown all (p. 7) sought to become the new capital. Therefore, when the territorial legislature met in January of 1883, a commission of nine persons was established to find a new capital location.28 This process involved much political infighting and scheming, and the commissioners could not agree on a location in the central or southern part of the territory.29
The eventual selection of Bismarck as the new capital outraged people in the southern counties.30 When the legislature met for its first session in Bismarck on January 13, 1885, the relocation of the capital was a hotly debated topic.31 A majority of lawmakers rejected the capital commission’s decision of Bismarck; these lawmakers then blocked any appropriations for the capitol building. The territorial legislature later passed a bill to relocate the capital to Pierre, which in turn was vetoed by Governor Pierce, who argued that the legislature should not be absorbed with continual schemes to move the capital.32
The failure of the southern counties to agree on a location for the capital had contributed to the selection of Bismarck, but a lot of blame and criticism for the move was put on the ever-controversial Governor Ordway.33 To secure the transfer of the capital to Bismarck, Governor Ordway had engaged in much political deal-making with potential opponents of the move—deal-making that included establishing a number of educational and other territorial institutions in the hometowns of various legislatures who in turn promised to vote for the transfer.34 For instance, in connection with trying to obtain support for the capital move, the governor promised financial support for the University of South Dakota at Vermillion, an agricultural college at Brookings, and the School for the Deaf at Sioux Falls.
Not only had Governor Ordway made numerous political deals so as to locate the capital at Bismarck, but he had also vetoed a bill calling for a constitutional convention for southern Dakota. But in the southern counties, Ordway was viewed as a corrupt politician.35 This led the forces for statehood to intensify their activities as an opposition to Governor Ordway, who was perceived as an agent of the railroad interests, which preferred the more lenient territorial railroad laws to those that a state legislature might pass.36 Indeed, (p. 8) outside interests often preferred a territorial system of government, since their influence in Washington gave them more power to control appointments to the territorial government.37
After the move of the capital from Yankton to Bismarck, the anti-Ordway movement accelerated, as did the campaign for separate statehood. The southern counties intensified their efforts to divide the territory and obtain statehood.38 At a meeting in Huron in June of 1883, the delegates, voted to hold a constitutional convention at Sioux Falls in September. The delegates also expressed their opposition to Ordway’s actions during the previous legislative session, criticizing Ordway for seeking to influence legislators through his various veto threats, political promises, or removal from political office. (These concerns were later incorporated in the constitution when South Dakota became a state in 1889.)
Further complicating and intensifying the statehood campaign was the Ordway-Pettigrew feud over control of the Republican Party in Dakota and territorial patronage appointments.39 (Richard Pettigrew was a lawyer and territorial delegate.) The feud grew so intense that Pettigrew filed charges of nonfeasance against Ordway.40
Factors Pushing for Statehood
By 1885, the southern part of the territory was pushing for admission into the union as a separate state.41 (After transfer of the territorial capital from Yankton to Bismarck in 1883, the settlers in the northern counties generally opposed division, favoring a single state instead.42) Contributing to the movement for territorial division and statehood was the fact that territorial institutions were being duplicated in the northern and southern areas, with each area having, for instance, a university, an agricultural college, a penitentiary, and an asylum for the insane. Another motivating force for statehood was the perceived inefficiency and corruption of territorial governments.43 There was the perception that, while territorial governments operated on the basis of rewarding partisan workers with political office, state government would operate in a fashion more accountable to the public. Territorial governments were particularly subject to federal patronage, since (p. 9) the party in charge of the federal government had great influence over how the Dakota Territory would be governed and who would serve as territorial officials.
Another important motive for statehood was the desire to protect the school lands from the kind of corruption seen in the territorial government.44 The school lands consisted of two sections in every township, set aside by the U.S. government for the creation of a public school system, to be permanently funded out of the proceeds of the sale of those lands.45 However, due to rapid settlement and the growing scarcity of good land, many school lands were being occupied illegally by squatters. Trespassers had even begun cutting down timber on those lands.46 Consequently, General Beadle worried that these lands would be lost unless a state constitution imposed a minimum monetary value on those lands, below which the lands could not be sold.47 Beadle had seen other states squander their school lands by selling them at such a low price that insufficient revenue was produced for the schools.48 However, a constitutional provision protecting school lands obviously required statehood as a necessary prerequisite.
During the 1880s, land was generally valued at less than $10.00 an acre. Fearing that land speculators might buy the school lands at a nominal price and then resell them later for a higher price, once land values had risen, Beadle argued that the safety of the school lands depended on South Dakota becoming a state, with a state constitution banning the sale of school land for less than $10.00 an acre.49 In this way, Beadle fused the issues of statehood and preservation of school lands. (As a result of General Beadle’s efforts, the $10.00 an acre school lands provision was included in the 1885 constitution.)
Also contributing to the push for division and statehood were the demographic differences between the southern and northern parts of Dakota.50 The southern area was chiefly occupied by homesteaders, who were primarily small farmers. On the other hand, the northern counties were initially settled by large-scale wheat farmers, who purchased vast areas of farm land and who engaged in what was known as bonanza farming.51 Further dividing the northern and southern halves of the territory was the fact that the main (p. 10) railroad lines generally ran east and west, thus making it difficult to travel in a north-south direction.52 The lines of communication essentially ran east and west throughout the Dakota territory, and the Missouri River was the only major north-south line of transportation.53
Pressures for statehood increased throughout 1885, as farmers took a more active role in Dakota politics. Angered by low commodity prices, high railroad freight rates, and questionable grading of their grain at local elevators, they organized a Farmers’ Alliance in February of 1885.54 Their political activism increased in 1886 as a severe drought further affected their economic health.
By 1887, the Farmers’ Alliance movement played an influential role in territorial politics.55 Whereas in 1885 only seven members of the territorial legislature were farmers, two years later the number had increased to twenty-five.56 And by 1889, the Alliance played an even more influential role in the territorial legislature.
The Farmers’ Alliance was instrumental in putting the initiative and referendum provision in the South Dakota Constitution, which was the first state constitution to contain such a provision. Indeed, the history of this provision, discussed under Article III below, demonstrates the Dakotan desire for direct democracy and opposition to the corruption of the territorial system.
Obstacles to Statehood
An obstacle to South Dakota’s pursuit of statehood involved national politics. The national elections of 1882 had produced a Democratic House of Representatives, but by the early 1880s the southern half of Dakota had become strongly Republican.57 Almost 80 percent of the population identified as Republican.58 The opposition to South Dakota statehood in Washington, D.C. therefore stemmed largely from the reluctance of a Democratic Congress to admit a state that would send two more Republicans to the U.S. Senate, and consequently the congressional debate on South Dakota statehood was based almost entirely on a partisan basis.59
However, the opposition to statehood was not usually framed in such blatantly partisan terms, as reflected by arguments by U.S. Senator Vest of (p. 11) Missouri that the Dakota Territory should not be divided into two different states since there were other existing states covering even larger land areas. Vest and his supporters also argued that the statehood movement itself was entirely political, since statehood would mean more jobs for local politicians.60 As Vest argued:
There is not upon this continent a more homogenous tract of territory than the territory of Dakota. It is homogenous in climate, homogenous in soil, homogenous in population. There is no line of mountains, there is no river, there is nothing to divide them except political ambition and personal rivalry.61
In reply, a leading advocate for South Dakota statehood, U.S. Senator Benjamin Harrison of Indiana, argued, “It is a disgraceful thing to say upon the floor of the Senate to 300,000 American citizens living in the territory of Dakota that they should not be admitted to statehood because the prevailing opinion was Republican.”62
In addition to a Democratic Congress, the presidency went to Democrat Grover Cleveland in 1884. Cleveland then appointed Louis Church as the only Democratic governor in the history of the territory. Because Governor Church opposed the division of Dakota Territory into two separate states, favoring the admission of Dakota Territory as a single state, residents in the southern counties tried to impeach him.63
Aside from national politics, another hindrance to statehood involved a dispute over the Yankton County railroad bonds. Yankton County, which had sold bonds to eastern investors in the early 1870s, had failed to pay interest on those bonds.64 In litigation that went to the Supreme Court of the United States, Yankton County was ordered to pay its creditors. However, when the county commissioners refused to do so, with the assistance of the territorial legislature, eastern creditors lobbied Congress to withhold statehood for southern Dakota until after Yankton County had paid its railroad bonds.65 Apparently the influence of these creditors was strong enough to help derail South Dakota’s statehood pursuit in the early 1880s.66 Senator Hale of Maine argued that “the people of Dakota have not yet shown themselves capable of self-government unrestrained by federal supervision.”67(p. 12)
The obstacles to statehood for South Dakota essentially disappeared when Benjamin Harrison won the presidential election of 1888, beating Grover Cleveland. President Harrison had consistently supported statehood for South Dakota during his time as senator from Indiana. Also, in the same elections of 1888, the Republican Party won control of Congress.
The Republican National Convention of 1888 had made the division and admission of North and South Dakota a priority issue. Prior to the election of 1888, the U.S. Senate supported admission of South Dakota as a separate state, but the House had opposed it; however, in 1889, the bill for South Dakota statehood actually originated and passed in the House.68
The Enabling Act, or statehood bill, was signed by President Cleveland on February 22, 1889, shortly before Benjamin Harrison’s inauguration. Under the Enabling Act, the territory was divided into two states at the seventh standard parallel. (The restrictions on the sale of school lands were included in the Enabling Act, providing that no acre of school land in South Dakota or North Dakota could be sold for less than $10.00 an acre.) The Enabling Act also called for a state constitutional convention, which was to be the first constitutional convention in South Dakota authorized by Congress.
This constitutional convention met at Sioux Falls on July 4, 1889. Its duty was to amend and resubmit for popular vote the constitution of 1885. The constitution produced by this convention was approved by a popular election held in October. And on November 2, 1889, President Harrison formally proclaimed South Dakota a state.
According to historian Howard Lamar, the South Dakota statehood campaign can be seen in part as a reaction against territorial rule by the federal government, reflecting a kind of anti-colonial mentality among the people of South Dakota. For instance, in 1878 General Beadle urged the appointment of a territorial governor who “comes from the states of our origin.”69
The path to South Dakota statehood was remarkably long and arduous. As one historian summed up the process:
The story of effort and failure to secure statehood for Dakota, single or twin, is one of long persistency, loyal patience and repeated delay. It follows a main purpose, from 1880 to 1889, through the legislature and through conventions that drew up memorials and drafted two constitutions; through the resolutions of the Republican and Democratic conventions of 1884, demanding in the strongest terms the division of the Territory and the admission of the southern (p. 13) half as a state of the union; through the ballots of more and more voters, and the annual messages of five governors—Howard, Ordway, Pierce, Church and Mellette; through the pleadings of five successive delegates to congress—Bennett, Pettigrew, Raymond, Gifford and Mathews; and through more than thirty congressional bills whose annual failure led Governor Pierce to say, in 1887: “We have seen people fighting to get out of the union amid the protests of the national government; it is a novel sight to see 500,000 people struggling to get into the union without being heeded or recognized.”70
The 1883 Huron Convention
A pre-convention meeting was held at Canton on June 21, 1882, where an executive committee was appointed to pursue a division of the territory into two separate states.71 (This meeting was prompted by the statehood organization created in 1879 by, among others, Governor Howard, Joseph Ward, W. H. H. Beadle, and Hugh Campbell.72) Delegates at this Canton meeting, outraged by the excessive spending of the territorial assembly, demanded significant restraints on the taxing and appropriation powers of the future state legislature.73 The Canton executive committee then convinced the territorial legislature to pass a bill providing for a constitutional convention for the southern part of the territory. However, the bill was vetoed by Governor Ordway in 1883.
Governor Ordway’s veto reflected the strong opposition in the northern part of the territory to separate statehood for the southern counties.74 The veto prompted an outcry in the south and further strengthened the Citizens League, which then pressed for the Huron convention, to be held on June 19, 1883 for the purpose of determining whether southern Dakota should draft a proposed constitution.75 By bringing together the anti-Ordway and statehood forces, the Ordway veto effectively intensified the statehood movement.76
After having moved the territorial capital to Bismarck and vetoing the constitutional convention bill, Ordway was seen as sabotaging the statehood (p. 14) movement.77 But after the anti-Ordway forces joined it, the Citizens League would come to play a prominent role in Dakota politics.78 One of the reasons the Citizens League desired statehood was to combat the excesses of the territorial legislature: “the enormous appropriations made by the last legislature...demonstrates the fact that in self-defense of their property and interests, the people must seek a more responsible form of government.”79
The Huron convention ultimately passed a resolution calling for a constitutional convention in Sioux Falls on September 4, 1883. However, opponents of statehood argued that the proposed Sioux Falls convention could be construed as an assertion of statehood without congressional approval.80 On the other hand, some statehood advocates like Attorney General Hugh Campbell argued that since southern Dakota met the traditional requirements for statehood, it had a right to establish itself as a state without waiting for Congress to pass an enabling act.81 But this approach was seen as an overly aggressive means of forcing Congress’s hand and throwing off the territorial system, which was increasingly perceived as controlled by Governor Ordway and the railroad lobbies.82 Therefore, to counter any rebellious interpretation of their call for a convention, the Huron delegates chose not to establish a state government without congressional approval. The delegates also chose to table the prohibition issue. They realized that “a Democratic Congress backed by an all-powerful whiskey ring” would probably refuse to admit a state with a “prohibitory constitution.”83
The Huron convention in June of 1883 was attended primarily by delegates from the southern part of the Territory. Although some delegates from the northern half attended the convention, the southerners dominated it.84
The 1883 Sioux Falls Convention
Historian Doane Robinson called 1883 “one of the periods of greatest activity in the history of Dakota.”85 During that year, population in the Dakota Territory (p. 15) increased by 58 percent, and the assessed valuation of property in the Territory grew by 45 percent.86 With the increasing diversification of agriculture, the economy of the Territory prospered, which in turn attracted more immigration.87 And it was amidst this growth and prosperity that the first constitutional convention took place, even though that convention was not called for by Congress.
The Sioux Falls convention chose Arthur Mellette, Hugh Campbell, and Bartlett Tripp as delegates to present its proposed constitution to Congress.88 According to Mellette, “the more there is in a constitution the better for the people,” because the legislative process was fickle.89 Mellette’s statement reflected the “Dakota Plan,” which limited legislative power as a means of protection for popular prerogatives.90 The Sioux Falls convention also elected Democratic lawyer Bartlett Tripp as president. The selection of Tripp was an effort to convey a bipartisan image to the convention’s resulting constitution.91
The convention met for fifteen days. According to one historian, the “resulting document was traditional for the most part.”92 Nonetheless, both the resulting constitution and the Sioux Falls convention were condemned by Governor Ordway.93
The 1883 constitution did reflect certain political concerns of the times. For instance, the lavish spending of the 1883 territorial legislature had so troubled the delegates that they placed significant restrictions upon future state legislatures’ taxing and appropriations powers.94 Of particular interest to Dakota farmers were issues involving railroads and corporations. The delegates to the 1883 convention included thirty-one farmers, who were outnumbered only by the convention’s forty-two lawyers.95 There were concerns that corporations should pay the same rate of taxes as private individuals, should not be allowed to consolidate, and should receive no special benefits not given to other private parties.96 In its report, the Corporations Committee of the Sioux Falls convention recommended that corporation-owned property be taxed similarly to all other property, that the state be prohibited from owning corporate stock or (p. 16) assuming corporate liabilities, and that the state be banned from giving subsidies to corporations.97 An amendment to the report required the legislature to pass laws regulating railroad rates and prohibiting unjust rate discrimination.98
The convention delegates shared the general fear that railroads or other large corporations might exercise undue influence over the legislature. With the goal of preventing corruption, the Committee on the Legislative Section of the Constitution sought to prohibit legislators from trading votes or state officials from “wielding official power in favor of or against any pending measures in the legislature.”99 Furthermore, because of the perceived wasteful spending by the territorial legislature, the delegates also limited public indebtedness, forbidding counties, cities, and towns from incurring debt exceeding 5 percent of assessed property valuations. Constitutional provisions permitting local governments to give special grants and loans were defeated, and spending on public works projects was capped at $500,000.100 The Pioneer Press reported that the 1883 constitution contained the “best safeguards against the undue power of corporations, bribery, executive usurpations and the power of creating debt and excessive taxation,” as well as having borrowed the best provisions of the Illinois, Pennsylvania, and Nebraska constitutions.101
With respect to the proposed bill of rights article, the delegates devoted much debate to an amendment guaranteeing to the people the right to “abolish” their form of government in any manner they thought proper.102 However, in the wake of the Civil War, many delegates considered this language too rebellious. Therefore, the final report issued by the Declaration of Rights Committee replaced the word “abolish” with the phrase “right to alter and reform.”103
Other controversial issues were women’s suffrage and prohibition.104 On the fifth day of the convention, the Committee on Elections recommended limiting women’s suffrage to school elections.105 But in the end, the delegates avoided the issue altogether, deciding to defer the matter to its own separate referendum election. The reasons given for this deferral varied, but many (p. 17) delegates believed that its inclusion would jeopardize the document’s ratification, as well as its acceptance by Congress.106 Likewise, with respect to prohibition, many delegates did not want to jeopardize the constitution’s ratification by attaching an alcohol ban, which would certainly alienate large blocks of voters, as well as a Democratic Congress.107 As Arthur Mellette stated, “Which is the paramount issue, prohibition or statehood?”108 Delegate John Gamble also argued that Governor Ordway in fact hoped the convention would pass measures, such as prohibition, that would be unpopular and undermining in both the convention and the statehood movement.109 Consequently, the convention defeated by a vote of 64 to 38 the attempt to include a prohibition provision.
Convention delegates struggled with the question of whether the public should choose a slate of state government officials at the same time that they voted on ratifying the new constitution. Whereas some statehood advocates favored electing officers regardless of what Congress did, others chose a more cautious course to avoid alienating Congress.110 After days of debate, this latter desire prevailed, and the convention avoided a potential controversy.111
Overall, the 1883 convention was able to side-step the most divisive issues that could have threatened the statehood movement. The delegates elected a Democrat as their president, in a symbolic move to show unity; they postponed issues such as suffrage and prohibition; and they chose not to established a state government without congressional approval.112 The Dakota approach to school lands, promoted by General Beadle and included in the 1883 constitution, was eventually adopted not only by South Dakota but by other western states later admitted under the Omnibus Bill of 1889.113
The 1883 Ratification Campaign
The constitution drafted by the 1883 convention was submitted to the voters for ratification in November. The vote was 12,366 in favor and 6,814 opposed. In the northern part of the Dakota Territory, a convention held in Fargo declared opposition to the Sioux Falls convention.114(p. 18)
The constitution of 1883 borrowed heavily from existing state constitutions of the more eastern states, as was the common practice among western states. The committee formed to promote ratification of the 1883 constitution declared that the document had “no claims to originality” and was “a compilation of the best sections of all constitutions of the several states.”115 The committee advertised that the constitutions of other states were available for consultation during the convention debates, that those other constitutions were debated by the delegates, and that the convention had refrained from adopting new and untried provisions.116 Delegate L. W. Lansing stated that the drafting of the constitution was largely a matter of editing and selection.117 The Yankton Press and Dakotan called the resulting document from the 1883 constitutional convention a “combination of the best elements to be extracted from the constitutions of 37 states with enough in the way of new points to indicate that our people are abreast with the spirit of progressiveness.”118
During the fall ratification campaign, an objection raised by opponents of the constitution related to a provision on railroad taxation.119 The convention had empowered the legislature to tax a railroad’s “gross earnings” instead of its property holdings, which was at that time the common method of taxation. Opponents denounced this gross earnings tax as a sellout, arguing that large corporations could escape such taxes. The opponents also argued that, by not specifically taxing railroad property, the constitution had left taxation decisions to the legislature, which in turn could be influenced or corrupted by railroad lobbyists.120 In response, supporters of the constitution argued that the taxation provision, borrowed from Illinois and Nebraska, was even stronger than the Iowa constitutional provision that had been supported by railroad opponents. The supporters further argued that the taxation provision was harsher to railroads than corresponding provisions in the constitutions of Wisconsin and Minnesota, both of which had been modeled on the recently amended anti-railroad constitutions of Illinois and Pennsylvania. Supporters of the 1883 constitution circulated the railroad taxation provision of every other state constitution, in an attempt to show that the Dakota provision was (p. 19) strong enough toward railroads. But ultimately, the opponents’ claims may have been designed more to derail the constitution itself than to argue for more specific and effective protections for farmers since opponents of the constitution understood that the best arguments against ratification were those that appealed to agrarian fears of corruption.121
These fears of corruption were intensified by attitudes toward Governor Ordway, who was often seen as using his office to build his own personal political machine through patronage.122 For instance, scandals had linked Ordway to the selling of county commissioner appointments.123 Richard Pettigrew, the congressional delegate for the Dakota Territory in 1880, accused Ordway as being “one of the most corrupt and unprincipled men that has ever disgraced and degraded the public service of this country.”124 The opposition to Ordway was so strong that an 1884 Yankton grand jury indicted Ordway for corruption during his time in office.125
During the ratification campaign, newspaper editors “liberally sprinkled their columns with pro-statehood remarks while at the same time assailing abuses of the Ordway administration.”126 Editor James Stahl urged his readers to vote for the constitution as “the first step toward freedom from the rule of Jumbo governors” and to “vote off the obnoxious yoke” of the territorial status.127
After the November ratification election, statehood advocates traveled to Washington, D.C. to request Congress for admission of South Dakota as a state. At the same time, another delegation headed by Ordway lobbied against statehood for southern Dakota.128 In Washington, Ordway argued that the majority of Dakotans wanted the territory to be admitted as a single state.129 But at the same time that Ordway was opposing the 1883 constitution and the efforts of the statehood movement, he was also fighting removal petitions filed against him.130
The Republican-controlled U.S. Senate approved a statehood bill, but the Democratic House did not, thus ending any chance for statehood in 1883. An argument used by House Democrats against admitting South Dakota as a state involved the small turnout in the November election. In that ratification (p. 20) vote on the 1883 constitution, more than 30,000 voters stayed home. The total votes cast in the ratification election amounted to only 59.6 percent of the total votes cast in the 1882 territorial delegate election.131 According to statehood opponents, “the constitution did not have sufficient popular appeal, and statehood should not be granted on the basis of so small a vote.”132
The failure to achieve statehood in 1883 intensified the opposition to Governor Ordway and fueled a growing spirit of sectionalism within the territory.133 But Ordway’s perceived obstructionism may have inspired the statehood forces to increase their efforts to convince Congress to grant statehood.134
The 1885 Convention
The 1885 territorial legislature passed a law calling for a second constitutional convention in Sioux Falls.135 This convention convened on September 8, 1885. To the convention delegates, the advantages of statehood included giving the public the power to regulate railroads, prevent legislative corruption by corporations, lower taxation, improve the responsiveness of government, contain state and municipal indebtedness, and choose their own capital.136
The 1885 constitutional convention has been called the most important of all the conventions, since the constitution produced by that convention was by and large the one authorized by Congress in 1889.137 With relatively few changes, the 1885 constitution became the state constitution ratified in 1889.
Delegates from the southeastern part of the territory, particularly Yankton and Sioux Falls, largely controlled the 1885 convention.138 After 16 days of deliberation and debate, the 112 delegates drafted and adopted a constitution. On November 3, 1885, the constitution was submitted to a popular vote, with 25,226 voting for it and 6,565 voting against it. In addition, a complete set of state officials was elected, including a legislature, even though those officials had no legal status.139 The elected officers all came from the Republican Party. The Democrats declined to nominate anyone, arguing that to do so would only establish a squatter state government with no legal authority from Congress.140(p. 21)
Thus, in 1885, South Dakota sought admission as a state without a previous authorizing act by Congress. But this was not a new approach, since other states had earlier gained admission in that manner.141 However, the convention did not take the more radical path of declaring southern Dakota to be a state and then assuming the attributes of a sovereign state within the Union.142 Moreover, as had been outlined at the convention, after the ratification vote, at which the constitution was approved and a state legislature elected, that legislature essentially adjourned, suspending all functions or governance until after admission had been granted by Congress.143
Numerous bills were subsequently introduced in the next session of Congress for the admission of South Dakota as a state. But none of the bills were adopted. Although the U.S. Senate again approved statehood for South Dakota, the Democratically-controlled House of Representatives rejected it, as the Democrats did not want to admit a state that would likely vote Republican.144
The constitution of 1885 was a revision of the 1883 document.145 The most widely referenced sources for the 1885 constitution were again the constitutions of other states.146 Other sources, however, are somewhat unknown, since much of the drafting work occurred in committees, which left little record of their proceedings.147
The convention of 1885 debated at length the question of whether or not a legislator should be disqualified from simultaneously holding any other office.148 The Illinois constitution was cited as authority for disqualification, and the convention finally decided to follow its example. Another issue was that of special legislation. Again, the Illinois constitution was cited and used as a model for this section, which specified the instances in which special laws could not be enacted, leaving to the legislature the discretion to enact special legislation in all other non-prohibited circumstances.149
The debate over the judicial system primarily involved the location of the Supreme Court.150 The standing committee wanted the location left to the discretion of the legislature, so as to allow for flexibility, and for some court sessions to be held at various locations within the state, but the objection was (p. 22) that such an arrangement would be costly and inefficient. The final version, however, maintained the legislature’s discretion in this manner.151
The issue of popular sovereignty was debated at the 1885 convention, just as it had been during the 1883 convention. However, still harboring memories of the Civil War, many Union veterans found this debate troubling.152 That is because the debate over the nature of popular sovereignty focused on the same clause in the proposed bill of rights article that had prompted so much debate in 1883. In response to the report of the Committee on the Bill of Rights, Hugh Campbell introduced an amendment, taken from the Pennsylvania Constitution, stating that the people should “have the right at all times to alter, reform or abolish their forms of government.”153 (Hugh Campbell has been called the leader of the most radical of the delegates.154) In opposition to the Campbell amendment, Judge Edgerton argued against confronting Congress in such a rebellious manner:
We should appeal to congress for our rights, and not come before it as rebels, with the statement that we have the absolute right to abolish our territorial form of government.155
In further opposition to Campbell’s proposal, it was noted that the clause in the Pennsylvania Constitution had been adopted in 1776, at the peak of the American Revolutionary movement.156
But now, invoking the lessons of the Civil War, opponents to Campbell’s amendment advised against embracing disunion or revolutionary strife.157
These delegates did not want to be seen as coming into the Union as potential rebels. Another argument against the “abolish” language was that no other state had adopted such language since the Civil War, other than keeping that language from a previous constitution.158
Subsequently, the matter went back to committee, where the more subdued language of the “right, by lawful and constitutional methods, to alter or reform their forms of government” was chosen.
In the debates over school funding, the Minnesota constitution was consulted, in addition to the Iowa and Indiana constitutions.159 On the subject (p. 23) of taxation, the constitution exempted federal and state property, along with property used for religious purposes or cemeteries.160 The issue of the rate of taxation—the two mill levy—was debated at length during the 1885 convention.161 Some delegates cited the Wisconsin and Tennessee Constitutions in favor of a levy of one mill, but other delegates used the constitutions of Nevada, Oregon, and California in arguing for larger levies.162 A clause borrowed from the Illinois constitution gave counties, cities, and incorporated towns the power of taxation for their own uses.163
Another debate occurring during the convention of 1885 involved the issue of tax assessment of corporations.164 Whereas in Illinois, Iowa, and Pennsylvania, railroad corporations were assessed on their gross earnings rather than the value of their property, the 1885 convention decided to leave the matter to the legislature to handle, which was how Minnesota had dealt with the issue.165
Perhaps the most potentially divisive issues arising during the 1885 convention were prohibition and women’s suffrage. But as in the 1883 convention, statehood advocates refrained from including a prohibition clause in the constitution, insisting that statehood must come first and calling on temperance advocates to press their cause with the legislature after statehood had been achieved.166 The same approach was taken on the question of women’s suffrage.167
Additional Areas of Convention Debate
The Committee on Military Affairs submitted a report to the convention that sparked significant debate.168 Section 2 of the report stated, “[T]he said militia organization shall be required to assemble in camp of instruction and drill not less than two or more than four days annually.”169 The convention questioned whether this provision should be included in the constitution, or if such details regarding the militia should be left to the discretion of the legislature.170 Delegates Lowthian, Kellam, and Neill argued that since the legislature handled the enrollment, uniforming, and discipline of the militia, matters (p. 24) regarding how often the militia organizes for drills should also be a legislative matter and not included in the constitution.171 Delegate Taylor raised an additional concern: “There might be an emergency when it would be desirable for the militia to drill more than four days a year, hence I am in favor of leaving it to the discretion of the Legislature.”172
Delegates More and Huntley, on the other hand, argued in support of the committee’s report. They stated that the committee had looked to other states’ constitutions, such as Pennsylvania, finding that the trend in those states was to regulate militias more through the constitution.173 Ultimately, the convention voted down the Committee on Military Affair’s report, and the clause requiring the militia to drill two to four days annually was omitted from the 1885 constitution.174
During the 1885 convention, the Committee on the Bill of Rights proposed an amendment that read, “Private property shall not be taken for public use or damaged, without just compensation, as determined by a jury.”175 With delegates concerned about the railroads’ power to take private property, debate focused on whether condemnation proceedings required a trial by jury and when a landowner should be paid for that taking.176 Delegate Stone worried that a trial by jury could take too long, especially in cases of an epidemic where it is “necessary to take private property for public use immediately” or in “cases of flood or fire where it is necessary to take private property for public use immediately.”177 Delegate Ward, likewise opposing trial by jury, argued that the amendment “stands directly opposed to the interests of the farmer and to the interests of every individual who desires to have public improvements, railroads, highways, and other improvements when they are necessary.”178
Delegate Brookings, on the other hand, argued that the amendment should include not only trial by jury, but also require payment to the landowner even before the government takes possession.179 This argument prevailed, and the delegates expanded the original amendment.180 Thus, at the conclusion of debate, the amendment read, “Private property shall not be taken for public use or damaged without just compensation, before possession is taken, provided the money demanded by the owner of the property shall be deposited as soon (p. 25) as the jury is drawn.”181 The convention subsequently adopted this language, and the expanded amendment passed on a vote of thirty-nine to thirty-two.182
Although women were not present as delegates at the convention of 1885, the issue of women’s suffrage involved considerable convention debate. Some delegates believed that the convention should ignore the issue, leaving it up to the legislature to later act upon women’s right to vote.183 Others expressed concern that giving women the right to vote could handicap the statehood movement because the U.S. Congress would be resistant to it.184 Other delegates argued that the people should be given the opportunity to vote upon the question of women’s suffrage.185 As Delegate Gault argued:
Let the people vote upon this question and say whether they think it is best or not; and if it is the voice of the people that she shall be denied the privilege then we will abide by that; but I hope that this Convention will not say that the people shall not have the privilege of expressing themselves upon this question.186
Delegate Dow argued forcefully in favor of women’s right to vote:187
If there is any question that should come before this Convention, it is that of the question of suffrage. The rights of the people is something that we have the right to fight for...I would like to have sufficient of this Convention state about what they believe to be right, sufficient to incorporate in the Constitution the distinction between male and female upon the question of suffrage. I know, Mr. Chairman, that this question is calculated to create a good deal of feeling and desire not to act upon, on the ground of expediency, but we have seen the result acting upon expediency years ago, and, and now, I believe in this Convention this morning, that here is not a single member present, who does not believe that it is right, that it is just, and that all the principles of righteousness and justice demand it; that we ought to extend to women the same rights of suffrage that we enjoy ourselves.188
Delegate Dow believed giving women the right to vote would be advantageous to the new state by giving it an increased strength in numbers of voters. Delegate Dow argued that “the greater the aggregate the safer we are; and today we are safer it we can advance the number of our votes.”189
Delegate McCallum (p. 26)
also argued in favor of women’s suffrage, receiving applause for pronouncing, “I had rather meet this and fight it on the floor of this Convention and fight it this fall than to fold my hands and quietly submit until ‘Uncle Sam’ admits us, and then fight for it.”190
Ultimately, concerns for the success of the statehood cause in Congress prevailed, and the 1885 convention declined to include a women’s suffrage provision.191
On the matter of school lands, the Committee on Education and School Lands submitted a report that set a minimum price of school lands at $10.00 an acre.192 Delegate Ward argued that a lot of land was worth far more than $10.00 an acre: “There are already enough lands that are worth nearer twenty-five dollars per acre to keep busy all the machinery that can be put into operation for selling the land.”193 In response to this argument, Delegate Owen moved to set the minimum price of school lands at $15.00 an acre.194 But in rebuttal, Delegate Campbell argued in support of the $10.00 price:
This is the minimum; it is not a price below which you can go. Now, you don’t want to put that price so high that half of these lands, away out on the western half, and away on the reservation, will be kept out of the market. You will never see those, in your life, when they will sell at fifteen dollars. You want to put the minimum price at such figure as you think the lowest and poorest lands can be sold for.195
Speaking from personal experience, Delegate Gehon described his attempts to sell a portion of land that was adjacent to school land.196
He had tried unsuccessfully for two years to sell it for $16.00 an acre.197
For this reason, he argued $10.00 an acre was a high enough minimum price.198
The majority of delegates agreed, and the Convention set the minimum price at $10.00 an acre.199
The 1889 Convention
In the national elections of 1888, the Republican Party achieved a clean sweep of the political branches. Benjamin Harrison won the White House, and the Republicans took control of both houses of Congress. In addition, the national (p. 27) Republican Party platform of 1888 had demanded that South Dakota be immediately admitted as a new state.200
The Omnibus Bill providing for statehood was passed by Congress and signed by President Grover Cleveland on February 22, 1889. This bill called for a third constitutional convention so as to conform the 1885 constitution to federal law. (Therefore, the 1889 convention was the first constitutional convention legally recognized by Congress.) The option Congress gave to the proposed state was to either ratify the constitution of 1885 with certain required amendments or adopt an entirely new constitution.201 The former option was selected and seventy-five delegates were chosen to attend a convention in Sioux Falls and prepare a constitution called for by the Omnibus Bill.202
When delegates once again assembled in Germania Hall in Sioux Falls in 1889, they were charged with updating the constitution of 1885 so as to make it comply with the Enabling Act, dividing the assets and debts of the territory, and making arrangements for the ratification of the constitution.203 They also avoided any changes in the 1885 constitution that might conflict with the requirements of the Omnibus Bill.204 According to the Daily Argus-Leader, “the delegates to the convention were elected not to make, but to patch a constitution.”205 Among the seventy-five delegates to the convention, twenty-four were farmers, and twenty were lawyers.206
The reference sources and materials used in the drafting of South Dakota’s constitution are difficult to identify, since the 1889 constitution was the result of three different conventions.207 Nonetheless, the state constitutions most often cited or used as examples were those of Illinois, Pennsylvania, New York, Wisconsin, Minnesota, and California.208 The clause in the South Dakota Constitution dealing with special laws, for instance, was taken from the Minnesota Constitution; the article concerning a legislator proposing a bill in which he has a private interest came from the Pennsylvania Constitution; and the article addressing condemnation of property was modeled after the Iowa Constitution.209 As in previous constitutions, the 1889 constitution’s limits (p. 28) on the legislature’s spending powers were the result of the territorial assembly having spent so uncontrollably.210
By the 1889 convention, the Farmers’ Alliance of Dakota Territory was playing an increasingly important political role.211 With declining crop prices, and having fallen deep in debt, farmers turned to the Dakota Alliance. In January of 1889, for instance, the Alliance controlled the lower house of the territorial legislature. In that legislative session, the Alliance focused on corporate tax laws and railroad regulation.
The purpose of the 1889 convention was to reconcile the constitution of 1885 to the conditions set forth in the Enabling Act. Such conditions included the disclaiming of any title to Indian land and guarantees that land owned by nonresidents not be taxed at a higher rate than lands owned by residents and that no taxes would be imposed on property of the United States government.212 Additional conditions included guarantees that territorial debts would be assumed by the state, that all contracts and rights would continue under the new state government, that all territorial judicial processes would remain valid, and that the new state would establish a public school system open to all children and free from sectarian control.213
Under the Enabling Act, Sections 16 and 36 in every township were to be set aside for the support of public schools, and five thousand acres were to be reserved for state institutions.214 No school or public land was to be sold for less than $10.00 an acre.215 The 1889 constitution also barred state funding for sectarian schools. Some commentators have interpreted this ban as reflecting an anti-Catholic bias. Senator Henry Blair of New Hampshire, for instance, saw the ban on public aid to sectarian schools as completing the unfinished work of the failed Blaine Amendment and as reflecting the “very essence” of the Blaine Amendment.216 Blair had previously sought federal legislation similar to the Blaine Amendment, and when his efforts failed he blamed Jesuit priests, deeming them a “Black Legion” and an “enemy of this country” whose goal was “destroying the public school system.”217(p. 29)
In the mid-1870s, a political campaign arose opposing public funds from going to sectarian schools. Speaker of the House James Blaine took a leadership role in this campaign by promoting an amendment to the U.S. Constitution banning public aid to religious schools.218 This became a hotly debated political issue, since it ignited anti-Catholic attitudes.219 Blaine exploited this anti-Catholic feeling, but when Congress failed to adopt the Blaine Amendment by a slim margin in 1875, its supporters turned to the individual states, many of which eventually enacted similar legislation or constitutional provisions.220 (Such anti-sectarian school funding provisions likewise found their way into the South Dakota Constitution.)
Support for Blaine, who hoped his anti-Catholic campaign would get him elected to the presidency was somewhat strong in Dakota Territory. George W. Kingsbury, an early political leader and territorial newspaperman, believed Blaine to be “a great leader and an able statesman,” and the 1884 Dakota convention of the territory’s dominant Republican Party endorsed Blaine with “no dissension.”221 Furthermore, the two territorial delegates chosen to attend the national Republican convention were directed to vote for Blaine.222
At the conclusion of the 1889 convention, the constitution was put to a ratification vote in a general election on October 1, 1889. At that general election, voters approved the constitution, and the state of South Dakota became eligible for admission into the Union.
On November 2, 1889, President Benjamin Harrison signed a proclamation making South Dakota the 40th state in the Union. In his proclamation of statehood, South Dakota’s first governor, Arthur Mellette, urged that “the people assemble at their respective places of worship and instruction, and devote an evening to holy praise and prayer and patriotic song and story.”223 This proclamation, Mellette’s first official act as governor, was a Thanksgiving Day proclamation made on November 11, 1889. As Governor Mellette later said of the founding principles of South Dakota statehood:
While civil government was instituted to protect the weak against the strong, the shiftless and simple-minded from the avaricious and cunning, it was not intended to defeat God’s first law, that man should live to labor. The province of legislation is not to foster idleness, but to stimulate effort; not to destroy ambition, but to elevate and direct it; to preserve with jealousy the social institutions (p. 30) which ennoble human nature; to foster religion, which furnishes divine ideals, and to promote a common education, which is the preserve of all.224
And as the historian Doane Robinson described the state’s constitution:
It was predicated upon the theory that the functions of a State are strictly limited to four activities: The preservation of the peace; the administration of justice; the promotion of education; and the care of the afflicted. So strictly was it limited that the State, as such, could not build a mile of highway or make an internal improvement of any sort.
The limitations upon legislation were exacting. Laws of merely local application were prohibited. No aid could be granted to any person or corporation; no obligation to the state might be compromised. It was the first American Constitution to largely legislate within itself. Rigorous economy was enjoyed by it. Salaries were fixed at the minimum. The limitations upon taxation for State purposes made it exceeding difficult to finance the necessary operations of the young state.
This constitution, with its remarkable limitations, commended itself to the conservative statesmanship of the nation and we were admitted under it thirty-three years ago today, (November 2, 1889).225
The convention of 1889 had also adopted two proposed amendments to the constitution, which were to be submitted to the people by a separate vote.226
The first amendment concerned prohibition; it stated that no person or corporation should manufacture or sell any intoxicating liquor.227
The other amendment involved minority representation. This amendment provided that the House of Representatives should consist of three times the number of members in the Senate, with three representatives to be elected in each senatorial district.228
Each voter could cast all three votes for one candidate, or could distribute his votes among the different candidates. These amendments were submitted separately for an independent vote during the same election in which the people voted on ratification of the constitution.
In this election, the constitution was approved by a vote of 70,131 to 3,267, the amendment on prohibition was accepted, and the amendment on minority representation was defeated.(p. 31)
Topics of Significant Debate at the 1889 Convention
With respect to the protection of school lands, the Committee on Education and School Lands submitted a report to the convention stating that some of the school lands were being improperly appropriated under the claim that they were mineral or coal lands.229 The committee proposed a request to the President of the United States
to direct that all proceedings relating to the entry of or issuance of patent to alleged mineral or coal lands situated within the agricultural districts of South Dakota be postponed and stayed until the State is by proclamation of the President declared admitted into the Union of States and until the Legislature of said State shall have the opportunity to appoint the requisite agents therefore and provide by law for contesting the right to make such entries and obtain from the government patents to such lands.230
After debating whether it should send this request to the President, the convention adopted it and sent it on to the President.231
On the matter of judicial circuits, the Judiciary Committee’s report, proposing the apportionment of the judicial circuits of the state, sparked more debate than any other single issue, with the debate including accusations about corruption in the Judiciary Committee.232 Delegate Couchman noted the geographic expanse of some counties, requiring travel of over one hundred miles down a wagon road,233 arguing that counties should be grouped together into circuits.234 Delegate Dickinson echoed Delegate Couchman’s concerns regarding inconvenience and travel time, and he accused the committee members of favoring the interests of their own constituencies.235 He also remarked that many counties were dissatisfied with the proposed circuits.236
Delegate Van Buskirk, a member of the Judiciary Committee, noted that as of 1883 the circuit judges hardly traveled and seemed to be serving only the larger towns.237 Additionally, Delegate Hole stated that the committee, in drawing up the proposed districts, had studied railroad facilities and tried to give people convenient locations in which to conduct legal business.238 And (p. 32) although debate continued about small towns having to travel to large cities, and about the larger cities monopolizing the time of the court,239 the convention finally adopted the Judiciary Committee’s recommended apportionment of judicial circuits by a vote of 42 to 19.240
Recognizing that one of the most important issues in American politics involved the sanctity of the ballot box, the Committee on Schedule and Ordinance recommended the creation of a uniform ballot known as the “Australian Ballot.”241 The committee’s report provided that a person would not be permitted to vote on any ballot except those tendered by the election judges.242 The report also allowed a voter to “go apart by yourself in an apartment in the polling place and there vote as you choose.”243
The convention delegates extensively debated the rules governing ballot provisions, the depositing of ballots, and whether the convention had the power to reform the voting system that the territory was already using.244 Opponents to the report argued that the convention had no power to change the general election laws.245 Proponents argued that the objective of the ballot provisions was to remedy identifiable instances of past election fraud, such as voter intimidation and tampering with ballots.246 Delegates also argued that if Congress did not intend to give the convention full power to govern elections, it would have expressly stated so.247 Ultimately, the convention adopted the report of the Committee on Schedule and Ordinance, thus creating a uniform ballot and voting system.248
On the issue of a debt limit for the state, the convention recognized that:
We cannot as a State go on in the lavish way in which the affairs of the Territory have been conducted...It seems to me, in entering upon statehood, that if there is any virtue in the Constitution it is in its power to limit the Legislature.249
Regarding the state’s debt limit, the Committee on State, County and Municipal Indebtedness recommended a debt limit of $500,000.250
The convention debate then focused on whether the constitution should provide for such a high debt limit. Delegate Edgerton of Davis proposed to decrease the (p. 33)
debt limit from $500,000 to $100,000.251
He argued that a $100,000 limit would be sufficient to meet all pressing needs, and that the new state could not continue in the lavish spending habits of the territorial government.252
Supporters of Mr. Edgerton’s amendment argued that the powers of the legislature had to be limited, and that a lower debt limit was one way to limit that power.253
Ultimately, Delegate Edgerton’s amendment prevailed and debt limit was set at $100,000.254
Even though South Dakota was considered a western territory, its constitution was strongly influenced by the eastern states, since a large majority of the constitutional convention delegates had previously resided in and been educated in eastern states.255 And despite all the political conflicts throughout the statehood movement, there was much consensus within the new state on most of the major economic issues of the time, particularly railroad regulation.256 On this issue, the South Dakota constitution mirrored the Granger constitutions of other Midwestern states and particularly those of Illinois and Pennsylvania, which had already adopted rigorous railroad regulations.257 The South Dakota constitution also reflected the influence of the Farmers’ Alliance, which described the 1889 constitution as a “farmer’s document,” insofar as it sought to achieve a decentralized agrarian economy and limits on the corrupting influences on government.258
Historians disagree over the nature and populist orientation of the South Dakota Constitution. Alton Lee, for instance, argues that the constitution of 1883, which with some changes would end up as the state’s constitution, was largely the work of bankers, lawyers and land speculators, resulting in little regulations on banks, monopolies, and railroads.259 To Lee, farmers had been virtually shut out of the 1883 constitutional process.260(p. 34)
Contrary to the historical interpretations of Alton Lee and Howard Lamar, who in his 1956 book Dakota Territory argues that the statehood movement was controlled by railroad and big corporate interests, historian Jon Lauck writes that the South Dakota statehood movement and constitutional process resulted from a popular democratic movement, not an attempt by oligarchical forces to oppress the small farmer.261 According to Lauck, the constitutional convention was not a reflection of the railroad interests, particularly since the constitution placed a number of strict regulatory provisions on railroads. Contrary to the history of conflict and division as proposed by Lee and Lamar, Lauck argues that the history leading up to the South Dakota Constitution was one of wide consensus and unity, characterized by the participatory and democratic nature of the constitutional process.262 Lauck also argues that farmers were not only not excluded from the constitutional convention, but in fact exerted a significant influence on the outcome of the 1889 convention.263
After South Dakota was admitted into the Union, the political complexion of the state continued to tilt strongly Republican. Of the 169 members in the first legislature, only 17 were affiliated with the Democratic Party, while 11 claimed to be independent. The rest were Republicans. (The Senate had 87 Republicans, 4 Democrats, and 4 Independents, while the House had 104 Republicans, 13 Democrats, and 7 Independents.264)
The 1972 Constitutional Revision
In 1969, the South Dakota legislature created the Constitutional Revision Commission, whose stated purpose was to “enter into a comprehensive study of the constitution of the State of South Dakota to determine ways and means to improve and simplify the constitution.” The commission had thirteen members, and after a lengthy examination of the South Dakota Constitution, it submitted its proposals to the 1972 legislature. In submitting its proposed amendments to the South Dakota Constitution, the commission had decided that rather than calling a constitutional convention and attempting to revise the constitution in one attempt, as had been unsuccessfully attempted in North Dakota, the commission would propose specific amendments to be adopted in a step-by-step manner.265
Several concerns inspired the formation and work of the Commission, including the concern that the South Dakota Constitution contained excessive detail, (p. 35) confusing terminology, inconsistent and contradictory provisions, and obsolete subject matter.266 Moreover, as of 1970, the South Dakota Constitution was the thirteenth longest of the state constitutions.267 As one scholar and commentator observed about the shortcomings of the South Dakota Constitution:
Without endeavoring to particularize each of the following, any brief compilation of some of the major criticisms of this state’s constitution would probably have to include the following:
No one acquainted with contemporary realities of American state and local government will see anything very surprising in this summary indictment of South Dakota’s Constitution. Whether or not misery loves company, it is a widely acknowledged fact that these types of constitutional infirmities are found in the overwhelming majority of the states and that they represent major factors that helped to impede the forward movement of American federalism.
What is often forgotten is that nearly eighty percent of our state constitutions were written in the eighteenth and nineteenth centuries, that they addressed themselves to predominantly rural and thinly populated communities, and that they reflected a political philosophy deeply suspicious and fearful of government in general, and of executive power in particular. “Unlike the ten commandments in brevity, directness, or authorship,” American state constitutions “were framed with the explicit purpose of further restricting the power of the elected officials—elected particularly, after the Jacksonian era, for short terms and for clearly limited duties.”
Hemmed in by highly detailed and restrictive constitutions written for a very different America, our state and local governments found themselves totally unprepared for the demands of the twentieth century. Industrialization and urbanization, world war conditions and economic crises, population explosion and revolutionary changes in transportation and communication—these as well as other more recent developments combined to constitute challenges that greatly exceeded the fiscal and governmental resources available at the state level. Frustrated and newly activated electorates increasingly turned to Washington for services and programs that governments nearer to them were either unable or unwilling to provide.
Were this trend to continue unabatedly, little, indeed, would be left of the federal model. Fortunately for those who still attribute significant value to a revitalized state and local political system—and this includes diverse forces and spokesmen across the ideological spectrum—powerful voices and influential power groups throughout the nation have begun to battle for constitutional and governmental reforms which might yet bring the states into a more effective partnership with the federal government. Hopefully it may not prove too late to assist in the self-renewal of our fifty laboratories in self-government.268
Further motivating the work of the commission was also the conclusion that the original constitution was an overly restrictive document that prevented an efficient and responsive state government.269 The bi-partisan commission recommended that four amendments be made to the constitution, completely replacing the existing executive, judicial, local government, and amendments and revisions articles of the existing state constitution. These amendments were approved by an overwhelming majority of the state legislature in 1972 and subsequently placed on the ballot for the November election.
The work of the South Dakota Constitutional Revision Commission occurred during a time in which significant constitutional revisions were occurring in many states.270 For instance, all but two states had experienced some constitutional revision activity in the ten years preceding 1972.271 However, while some states had attempted to revise their entire constitutions at a single state convention and then have the public ratify those revisions during a single election, the South Dakota commission chose to revise a few specific articles and then to put only those revisions to a general election.
The first of the four replacement articles proposed by the commission was a new article on the executive branch. This article, which was subsequently approved by the voters at the November election, along with the other three amendments offered, limited to twenty-five the number of departments in the executive branch of state government. At the time, there were 165 departments, boards, and agencies in the executive branch.272 The goal and purpose of this change was to improve the administrative efficiency of the executive branch.
According to the commission, the executive branch had become too complex for the public to understand.273 Similar reforms had been enacted by other states; for instance, the commission found that eleven states had limited the number of their departments, with the limits ranging from fourteen to twenty-five.274
The revised article on the executive branch also provided that the governor and lieutenant governor be elected as a team. This would allow the governor to delegate more functions to the lieutenant governor.275 Other changes made (p. 38) in the proposed article included a four-year term of office for the governor and lieutenant governor, and the granting of authority to the governor to reorganize the executive branch by executive order.
The second proposed article offered by the commission was a replacement of the existing article on the judiciary. The primary reason for revising the judicial article was to streamline South Dakota’s court system and provide for a more efficient judiciary. The new article would create a unified court system, over which the chief justice would be the administrative head.276 This unified system would consist of a supreme court, the circuit courts of general jurisdiction, and any courts of limited jurisdiction established by the legislature.
Within this unified system, the chief justice could temporarily assign circuit judges wherever they were needed around the state. The proposed article would also allow the supreme court to adjust the boundaries of the circuits. With judicial boundaries more flexible, shifts in populations and workloads could be more effectively accommodated by the supreme court.277 Thus, together with the ability to temporarily reassign judges to circuits with especially heavy workloads, the supreme court could make the South Dakota judicial system more efficient.278 This was the goal of the proposed amendment to the judicial article.
The proposed judicial article also created a method for removing incompetent and/or disqualified judges, whereas under the existing system a judge could be removed only by impeachment or electoral defeat. The proposed article provided for a qualifications commission to investigate complaints against any judge. This provision reflected the commission’s recognition that impeachment was an ineffective method to remove judges.279
The third replacement article presented by the commission involved the article on local government. This proposed article sought to replace two articles in the existing constitution—the one dealing with county and township organization, and the one dealing with municipal corporations. It also sought to fulfill two goals regarding the functioning of state and local government: first, that local government exists largely for the administration of state law by local officials; and second, that the units of local government are instruments of self-government which not only implement state law, but which also determine local policies to solve local problems.280 According to the commission, the new constitutional article would increase the efficiency and responsiveness of local units of government, as well as empowering and encouraging new approaches to local government. The amendment gave the right to adopt (p. 39) home rule to counties as well as to cities, and allowed each county to adopt the form of government that would best fit its needs. It also granted local governments the ability to develop cooperative approaches to providing various government services.
The fourth and final proposed amendment to the constitution involved the article governing changes to the constitution. The commission’s proposed amendments and revisions article allowed the people to initiate the calling of a constitutional convention or the submission of a constitutional amendment to a popular vote. Previously, only the legislature could call for a convention or submit an amendment to a popular vote. Essentially, the proposed Article XXIII extended the right of initiative and referendum to constitutional amendments. Although the 1889 constitution had allowed the public to initiate a law, this power had not been given regarding constitutional amendments. The original constitution specified that the calling of a constitutional convention or the submission of constitutional amendments must pass the legislature before being submitted to the people.
All four of these replacement articles were passed during the November election. Subsequently, the commission would propose further amendments to future legislatures. For instance, the commission’s proposed amendment to Article VII, dealing with elections and suffrage, which was adopted by both the legislature and the voters in 1974.
Other proposed amendments included a second amendment to Article VII, Elections and Suffrage, which was passed by the legislature and by a significant margin in the 1974 general election. However, a proposed amendment involving Article III was defeated.
Subsequent proposals were made in 1975. For instance, the 1975 legislative session passed the commission’s proposals to amend Article VIII, Article VI, a redraft of the Legislative Article III that was defeated by the people in 1974, and revisions to the Preamble. However, all these amendments were rejected in the 1976 general election.(p. 40)
1 This act provided for a temporary government for Dakota Territory. Among other things, it also required that sections 16 and 36 in each township be reserved for public education purposes. A later act passed by the territorial legislature on May 13, 1862 provided for free common schools, established the first school code, and created the common school district.
2 A History of Dakota, 1 South Dakota Historical Collections 50 (1902). This source also gives a detailed history of pre-territorial Dakota.
4 Marie Louise Lotze, How South Dakota Became a State (unpublished M.A. thesis, University of South Dakota) (on file with I. D. Weeks Library, University of South Dakota) 1 (1912).
6 Herbert Samuel Schell, South Dakota: Its Beginnings and Growth 115 (1942).
7 Moses Armstrong, The Early Empire Builders of the Great West 52 (1901).
9 Howard Roberts Lamar, Dakota Territory 1861–1869: A Study of Frontier Politics 192 (1956).
10 Press and Dakotan, Jan. 23, 1879; 53 S.D. L. Rev. 234–239.
13 How South Dakota Became a State, 14 South Dakota Historical Collections 467–68 (1928).
14 Carol Gardner Green, The Struggle of South Dakota to Become a State, 12 South Dakota Historical Collections 505 (1924).
17 Dakota Herald, Apr. 21, 1877 and May 5, 1877.
18 Barrett Lowe, The Public Activities of General W. H. H. Beadle (unpublished thesis, University of South Dakota) 71–72 (1938). This Thanksgiving dinner was held at the home of Rev. Stewart Sheldon in Yankton and is often seen as the beginning of the statehood movement. Memoirs of Gen. William Henry Harrison Beadle, 3 South Dakota Historical Collections 198–99 (1906). These individuals linked the statehood movement with their plan to save the school lands. George Harrison Durand, Joseph Ward of Dakota 151–57 (1913). These individuals have been called the originators of the statehood movement for South Dakota. Green, Struggle, 507. In 1878, General William Henry Harrison Beadle, a decorated Civil War veteran, had been named territorial superintendent of education. Cleata B. Thorpe, Education in South Dakota: Its First Hundred Years, 36 South Dakota Historical Collections 232 (1972).
19 1 Doane Robinson, South Dakota: Stressing the Unique and Dramatic in South Dakota History 311 (1930).
22 Over a Century of Leadership: South Dakota Territorial and State Governors 35 (Lynwood E. Oyos ed., 1987).
36 Lois Malvina Drake, The Influence of the Newspapers of Dakota Territory Upon the Administration of Nehemiah Ordway at 45ff. (Master’s thesis, Dept. of Journalism, University of Missouri).
39 R. Alton Lee, Principle over Party: The Farmers’ Alliance and Populism in South Dakota 1880–1900, 44 (2011).
43 John David Unruh, South Dakota in 1889, 182 (unpublished Ph.D. thesis, University of Texas, 1939).
45 Doane Robinson, A Brief History of South Dakota, 166 (1905).
46 Due to the long-established practice of Congress to grant each new state certain sections of each township for school purposes, these lands were unavailable until after statehood. As a result, they lay idle and were thus susceptible to trespass. In early 1884, a group of speculators had secretly tried to buy a large block of the school lands. 3 Memoirs of General William Henry Harrison Beadle, South Dakota historical Collections 245 (1906).
58 A New South Dakota History 115 (2009).
61 Congressional Record 48th Congress, Second Session XVI, Part I, 144.
63 A New South Dakota History, 114.
69 W. H. H. Beadle to Secretary of the Interior Schurz, January 26, 1878, Interior Appointment Papers, Dakota, file 135 (1878).
70 1 South Dakota Historical Collections, State Historical Society 77 (1902).
72 1 Doane Robinson, South Dakota: Stressing the Unique and Dramatic in South Dakota History 311 (1930).
74 New South Dakota History, 115.
76 Grant K. Anderson, Politics and Prosperity in Dakota Territory 1883: Lake County as a Case Study, in 14 South Dakota History 2 (Summer 1984), 144.
78 Id. The Citizens League, which had chapters in all of the southern counties, had been formed earlier by a group of prominent Yankton citizens and various statehood leaders and had called for the Canton meeting in June of 1882 to outline the plans for a constitutional convention. Id. at 152.
80 Jon Lauck, Prairie Republic: The Political Culture of Dakota Territory 1879–1889, at 111 (2010).
84 Robert Reedy, The Administration of Nehemiah Ordway, Governor of Dakota Territory 68 (unpublished M.A. Thesis, University of South Dakota 1935).
86 2 George Smith, South Dakota: Its History and Its People 1329–30 (1905).
89 New South Dakota History, 115.
94 See Dakota Herald, Sept. 8, 1883; Press and Dakotaian, Sept. 8, 1883. And a convention involving the northern part of Dakota was held to declare opposition to the acts of the Sioux Falls convention. How South Dakota Became a State, 468; Lauck, Prairie Republic, 86.
95 Lauck, Prairie Republic, 113. The Farmers’ Alliance organization in the 1880s had helped to raise the issue of railroads and ensure that farmers’ voices were heard. Id.
96 Dakota Deliberations, St. Paul Pioneer Press, Sept. 9, 1883; 53 SD Law Rev. 239.
97 South Dakota: The Constitutional Convention, St. Paul Pioneer Press, Sept. 13, 1883; Lauck, Prairie Republic, 109.
99 Devising Organic Law, St. Paul Pioneer Press, Sept. 12, 1883; 53 SD Law Rev. 245.
101 Constitution Complete, St. Paul Pioneer Press, Sept. 19, 1883; Dakota’s Constitution, St. Paul Pioneer Press, Sept. 20, 1883; Lauck, Prairie Republic, 121.
102 Continuation of the Proceedings of the Constitutional Convention, Yankton Press and Dakotan, Sept. 15, 1883; Lauck, Prairie Republic, 116.
103 21 Journal of the Constitutional Convention, South Dakota Historical Collections 339 (1942); Lauck, Prairie Republic, 101, 116.
107 Devising Organic Law, St. Paul Pioneer Press, Sept. 11, 1883.
108 Interesting Resume of the Work of the Constitution Makers, Yankton Press and Dakotan, Sept. 19, 1883; Lauck, Prairie Republic, 118.
109 Discussion on the Prohibition Subject, Yankton Press and Dakotan, Sept. 18, 1883; Lauck, Prairie Republic, 118.
113 John Hicks, The Constitution of the Northwest States 23 (1923) 76–80.
115 An Address from the State Executive Committee, Yankton Press and Dakotan, Oct. 25, 1883; Lauck, Prairie Republic, 98.
120 The Sioux Falls Railroad Constitution, Dakota Herald, Oct. 6, 1883; Lauck, Prairie Republic, 119. Historian Howard Lamar articulates the position of the opposition: that the Sioux Falls constitution contained only mild regulations on banking, monopolies, and railroads, even though other states were implementing much stronger regulations. Lamar, Dakota Territory, 232. As convention opponents argued, the clause allowing railroads to be taxed upon their gross earnings had been written by an attorney for the Northwestern Railroad. Dakota Herald, Sept. 29, 1883.
127 Lake County Leader, Oct. 25, 1883 and Nov. 1, 1883.
148 How South Dakota Became a State, 475.
150 How South Dakota Became a State, 477.
153 Crisis at Sioux Falls: A Disturbing Declaration, St. Paul Pioneer Press, Sept. 19, 1883; Lauck, Prairie Republic, 100.
156 Judge Edgerton Argues Against Revolution in the South Dakota Constitutional Convention, St. Paul Pioneer Press, Sept. 20, 1885; Lauck, Prairie Republic, 100.
161 How South Dakota Became a State, 479.
168 1 South Dakota Constitutional Convention, 187 (State Librarian ed. 1885).
202 How South Dakota Became a State, 471.
205 Daily Argus-Leader, July 11, 1889, p. 1.
207 How South Dakota Became a State, 474. Moreover, much of the work of the conventions was done in committees, which left no record of their proceedings.
212 Few changes were made to the 1885 constitution, other than those needed to conform the document to the provisions of the Enabling Act. South Dakota Became a State, 473.
214 This grant of lands under the Enabling Act was extensive. The school lands amounted to approximately 3 million acres, or 4 percent of all land within the state. 3 George Kingsbury, History of Dakota Territory 812, 814 (1915).
216 Tenth Days’ Proceedings of the Constitutional Convention, Yankton Press and Dakotan, Sept. 17, 1883; Lauck, Prairie Republic, 78.
217 38 South Dakota History, at 32.
218 Jon Lauck, Anti-Catholicism in Early Dakota, 38 South Dakota History 22 (2008).
221 Id.; 2 Kingsbury, History of Dakota Territory 1354.
222 38 South Dakota History, No. 1 (Spring 2008): 22–23.
224 A History of Dakota, 79–80.
225 The End of a Generation appearing in South Dakota Historical Collection at 116 (an address delivered by Doane Robinson on November 2, 1922, at a celebration of the 33rd anniversary of South Dakota’s admission as a state).
226 How South Dakota Became a State, 482.
228 How South Dakota Became a State, 482.
229 2 South Dakota Constitutional Convention 88 (Doane Robinson ed. 1889).
239 Id. at 202, 204, 205–06.
246 Id. at 325–26, 331–32.
249 Id. at 508 (quoting Mr. Williamson).
256 Lauck, Prairie Republic, 129. Moreover, six members of the 1889 Convention had been members of the 1883 Convention, and eleven had been members of the 1885 Convention. How South Dakota Became a State, 473.
259 R. Alton Lee, Principle Over Party: The Farmers’ Alliance and Populism in South Dakota 1880–1900, at 46 (2011).
264 Rapid City Daily Journal, Oct. 13, 1889.
265 Constitutional Revision in South Dakota: Ballot Issues in 1972, Public Affairs (W. O. Farber ed., 1972). The nature of amendments to the South Dakota Constitution was aptly described by William Cape in Constitutional Revision in South Dakota:
The amendments to the South Dakota Constitution are incorporated directly into the respective articles of the document. Thereby the section or article specifically amended, as the case may be, is deleted. The insertion of the amendments in this manner differs significantly from the arrangement followed with the Federal Constitution. In the latter case, the amendments are numbered and added at the end of the Constitution. Footnotes, for convenience purposes, are included on the pages to cross reference the amendments to the pertinent sections. On the other hand, when amendments are inserted, reference must be made to earlier copies of the document to determine the wording of the sections amended. In some instances a section may have been amended two or more times. Although it may be relatively clear to add twenty-two amendments to the Federal Constitution, it would be most confusing to add sixty-four or more rather long amendments at the end of the South Dakota document.
2 William H. Cape, Constitutional Revision in South Dakota (1957)
266 David Fellman, What Is a Good State Constitution, in Contemporary Approaches to State Constitutional Revision: Lectures 4 (Alan Clem ed., Vermillion Government Research Bureau, University of South Dakota, 1970). An example of obsolete subject matter appeared in Article XXVI, dealing with the separation of South Dakota from North Dakota at the time of statehood. These criticisms had been made nearly two decades earlier. See Cape, Constitutional Revision in South Dakota, 6–11.
268 G. Theodore Mitau, Partial Constitutional Revision Through Piecemeal and Comprehensive Amendments, in Contemporary Approaches to State Constitutional Revision: Lectures 50–51 (Alan Clem ed., Vermillion Government Research Bureau, University of South Dakota, 1970).
269 Constitutional Revision in South Dakota. Also motivating the Commission was the increasing occurrences of attempts to revise or amend the Constitution. By 1970, over 150 constitutional amendments had been proposed by the South Dakota legislature. Contemporary Approaches to State Constitutional Revision (Alan Clem ed., Govt. Research Bureau, Report #58, 1970). The passage rate of those proposed amendments since 1948 has been 51 percent. Id. at 56.
270 Contemporary Approaches, 52–54
271 Claudia Lewis, J. P. Hendrickson & Gordon Rose, Constitutional Change: Questions and Answers, Document fs 566 (1972).
276 Constitutional Change, Document No. fs 566 at 2.
278 Ronald D. Olinger, Constitutional Fact Sheet (1972).
280 Constitutional Change, Document No. FS 566 at 2.