holding that video lottery is not authorized under S.D. Const. art. III, § 25, which makes it lawful for the legislature to authorize a "state lottery which is regulated, controlled, owned and operated by the State. . . .
How later courts described this case
- holding that video lottery is not authorized under S.D. Const. art. III, § 25, which makes it lawful for the legislature to authorize a "state lottery which is regulated, controlled, owned and operated by the State. . . .
- stating that it is a function of the judiciary, not the legislature, to define the scope of constitutional provisions
- reviewing both the history of lotteries and the predominant state-run lotteries in the midwest, and concluding that the term lottery does not include video games of chance
- game of chance is one in which success or failure depend less on skill and experience than on purely fortuitous circumstances incidental to game, manner of playing it, or device or apparatus with which it is played; test is whether chance is determining element in outcome of game
Written by the judges who cited it.
The opinion
HENDERSON, Justice
(concurring specially).
If our State Constitution admits of two constructions, one of which is safe by conservative deduction and the other precarious; and if one construction is precise and the other is obscure or vague, I would travel the road of the safe and the precise. If there is to be an enlargement of a constitutional provision, this should spring from the power and the vote of the people, who by amended document may enlarge it if they so find it necessary. There is nothing to support the premise that video gaming was envisioned within the 1986 constitutional amendment. Despite the purposeful omission of the term “video poker” from Art. Ill, § 25, video lottery was born. Had the will of the Legislature and the people been to permit video-style gambling, such could have been drafted into the proposed amendment; but it was not. Kneip v. Herseth, 87 S.D. 642 , 214 N.W.2d 93, 102 (1974). To assume, by construction, that which the State Constitution does not provide, would create boundless power in the Supreme Court of this state.
If our State Constitution has bounds — and it does — then the interpretive decisions thereunder by this Court must be within the powers and authority which that instrument bestows. If the power bestows, then the enactment of a law must be within that power. A law can be promulgated by the State Legislature only under an enumerated objective of the State Constitution. A law cannot be enacted to defeat the purposes for which the State Constitution is drawn. South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693 (S.D.1981). “In other words ... what cannot *251 be done directly because of constitutional restriction cannot be accomplished indirectly by legislation which accomplishes the same result.” Fairbcmk v. United States, 181 U.S. 288 , 294, 21 S.Ct. 648, 653 , 45 L.Ed. 862 (1901); Associated General Contr. v. Schreiner, 492 N.W.2d 916, 923 (S.D.1992).
All presumptions are in favor of the construction of a statute, and this continues until the contrary is shown beyond a reasonable doubt. The contrary has been so established here. Crowley v. State, 268 N.W.2d 616 (S.D.1978). Therefore, I join the majority opinion in its holding that video lottery is violative of Art. Ill, § 25 of the South Dakota Constitution.