This court definitely committed itself to certain principles regarding the referendum in the case of State ex rel Wegner v. Pyle, 55 S.D. 269, 226 N.W. 280. That that case was carefully considered is evidenced by the fact that the decision was by a bare majority of the court with two of the judges concurring in a dissenting opinion. It is my opinion that the Wegner-Pyle Case controls the result of this present case, and I am not now inclined to depart from the principles deliberately established in that case.
The Pyle Case established that if any part of the constitutional provision is to be strictly construed it is the exception, which reads "except such laws as may be necessary for the immediate preservation of the public, peace, health, or safety, support of the state government and its existing public institutions." At the outset, *Page 351 therefore we may start with the premise that, unless it clearly appears that the law under consideration is necessary for the support of the state government, it does not fall within the exception. The suggestion "that the Legislature by the act of passing the law thereby determined its necessity" was expressly denounced in the Pyle Case.
I can see no valid distinction between the replacement feature contained in the law under consideration in the Pyle Case and the replacement feature contained in chapter 185, Laws of 1933. Speaking of this feature of the law, the majority of the court in the Pyle Case said: "It is an express declaration of legislative intent which unmistakably discloses the purpose of the law and the reason for its enactment. * * * While it is intended to raise revenue, and the support of the government is dependent upon revenue, it does not purport to increase revenues, but expressly provides that it shall not do so."
In this case as in the Pyle Case we have, therefore, the express legislative declaration to the effect that the law is not necessary for the support of the state government. Keeping in mind that it is the exception in the constitutional provision which must be strictly construed and that it must clearly appear that the present law is within the meaning of the exception, is there anything before this court at the present time which will overcome this express legislative declaration contained in section 1 of chapter 185, Laws 1933, to the effect that the law is in fact not necessary for the support of the state government? I am of the opinion that there is not. This court cannot under the guise of judicial notice speculate upon the possibility of there being paid in the future a sufficient amount of general property taxes and other taxes required to be paid to run the state government. The act contains no declaration by the Legislature to the effect that the future collection of taxes, independent of the 1933 law, would be insufficient to meet the needs of government. What effect such legislative declaration would have I do not now in any manner express an opinion. Sufficient to say is, that without such declaration there is nothing before this court which in any manner establishes that payment of future taxes will be insufficient to meet the needs of government. Not only is there an absence in the act of any such declaration as *Page 352 just referred to, but, on the other hand, we have the express declaration in section 1, chapter 185, above referred to.
I am of the opinion that the writ should be granted.