Being unable to share in the views stated in the majority opinion, I deem it not only my privilege, but also my duty to briefly note my dissent.
The constitutional provision herein involved is section 1, article 3, of our Constitution, the material part of which reads as follows: "The legislative power of the state shall be vested in a legislature which shall consist of a senate and house of representatives, except that the people expressly reserve to themselves the right to propose measures, which measures the legislature shall enact and submit to a vote of the electors of the state, and also the right to require that any laws which the legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, 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. * * *"
Our state pioneered the initiative and referendum. Many states have followed. Considerable criticism has been leveled at the measure and much has been said both for and against it. This court has in previous decisions reviewed the referendum historically and also from the standpoint of its being a safeguard to the people. Nothing will be gained by a review of the judicial decisions, works on economics, views of text-writers and other writers who have thoroughly discussed the merits of the initiative and referendum.
The people of South Dakota have reserved unto themselves certain rights and powers by and through said initiative and referendum except in certain instances and I shall not treat the political wisdom of the powers that the people have reserved unto themselves.
The 1933 Session of the Legislature, after considerable discussion and after quite a struggle, abandoned various proposed tax measures and selected and passed the present gross income tax law by a bare majority.
Chapter 184 of the 1933 South Dakota Session Laws imposes taxes on gross incomes and provides for the levying, assessment, *Page 353 collection, and distribution thereof, contains certain other provisions, and repeals certain sections of our statutory laws.
Chapter 184 is followed by chapter 185 which is an act expressed in its title as: "Relating to Proceeds Derived from Gross Income Tax. An Act Entitled, An Act Appropriating Money Accruing Through the Taxation of Gross Incomes for Administration Expense and in Aid of Common Schools."
Section 1 of Chapter 185 reads as follows: "It is hereby expressed as the intent of the legislature that the entire income derived from the tax on Gross Incomes imposed by the provisions of Senate Bill No. 101 passed at this session of the legislature and approved by the Governor on _____ 1933, shall, in its distribution and use, operate as a direct relief, replacement and reduction in the tax heretofore, now and hereafter imposed upon and against the taxable property of the state, and the authorities having supervision of the levying of property taxation are specifically directed and required to eliminate or reduce property tax levies to the full extent of the revenues made available by the collection of the tax imposed by said act."
It will be observed that it is mandatory upon the authorities having supervision of the levying of property taxation to specifically eliminate and reduce property tax levies to the full extent of the revenues made available by the collection of the tax imposed by said act of Senate Bill No. 101 which is Chapter 184 of the 1933 Session Laws.
The language used, the references made, and the recital in one specifically naming, numbering, and referring to the other seem to indicate that it was intended to carry out the purpose and to furnish the machinery with which to put the gross income tax statute into operation and to carry out its provisions even unto replacing funds collected through other forms of taxation. In other words, the two chapters should be read and construed together with like force and effect as though Chapter 185 was embodied within Chapter 184. The practically unanimous and announced weight of judicial opinions so hold in construing statutes of similar import. All statutes in pari materia are to be read and construed together as if they formed part of the same statute and were enacted at the same time. The two statutes in question were *Page 354 enacted by the same Legislature. Chapter 184 being approved March 3, 1933, and Chapter 185 being approved March 6, 1933. "In pari materia. Upon the same matter or subject. Statutes in pari materia are to be construed together." (Bouvier's Law Dictionary.)
Our territorial Supreme Court in an early decision placed such a construction on statutes in Territory ex rel McKinnis v. Hand, 1 Dakota 419, 426 (444), 46 N.W. 685, and our state Supreme Court in Finch et al v. Armstrong, 9 S.D. 255, 68 N.W. 740, followed the same rule. For further authorities upholding the rule see 59 C.J. § 620, page 1042, and cases therein cited, 25 Ruling Case Law § 285, page 1060, and U.S. v. Hemmer, 241 U.S. 379, 36 S. Ct. 659, 60 L. Ed. 1055. The two chapters must be taken and construed together.
The vital question presented is whether or not the petitioners have an inalienable right to have the law referred under section 1 of article 3 of the South Dakota Constitution.
This court in a decision written by the late Judge Burch passing upon Chapter 246 of the 1929 Session Laws providing registry tax on motor vehicles, issuances of certificates of title, and providing for the collection of said tax, in State ex rel Wegner v. Pyle, 55 S.D. 269, 226 N.W. 280, 284, held that the referendum applied. Very little can be added to what was said in that opinion. Practically every matter argued and contended for in the case at bar was considered in Wegner v. Pyle, supra. No reason urged by the defendant in this case has sufficiently impressed me to change the views as expressed in Wegner v. Pyle, and I contend that what was said therein is controlling in the case at bar. The very able arguments and briefs presented by both the learned Attorney General and his assistants and by the learned counsel for the plaintiff are highly appreciated. I appreciate the efforts of counsel, but in view of the fact that this court so thoroughly analyzed and reviewed similar and identical matters in State ex rel Wegner v. Pyle, supra, I feel it unnecessary to further review the facts and law before us.
My attention has been called to the decision of State ex rel Shade v. Coyne, 58 S.D. 493, 237 N.W. 733, 734. A perusal of that case discloses the fact that the statute which was before this *Page 355 court was a tax measure, but in that case the statute under consideration did not contain any so-called replacement language. The following excerpt from Shade v. Coyne seems at this point pertinent. "It fixes the license fees for every class of motor vehicle that is permitted to operate on the public highways of the state. The aggregate of such license fees is a very considerable amount per annum. While it is true as claimed by the plaintiff that a large portion of this revenue is now being collected under the provisions of existing laws, it is also true that many of the license fees as named in the existing law are materially increased, and some classes of vehicles that are not taxed at all under the existing law are added to the taxable list, so that the law in question may increase the present revenue to a greater or lesser extent, and therefore, in this respect, the law in question is different from chapter 246, Laws of 1929, which upon its face could not increase the revenue already provided for in existing laws, but was intended only to replace revenue then being raised from existing laws. State v. Pyle, 55 S.D. 269, 226 N.W. 280, 283."
From the foregoing it is quite apparent that the case of Shade v. Coyne cannot be held applicable to the matters at issue in this case. In fact that decision points out the existing differences of the matters in controversy in State ex rel Wegner v. Pyle, and clearly shows the distinction between the statutes involved in the two decisions. The case at bar therefore should be governed by what we said in State v. Pyle, supra.
It is fair to assume that the Legislature had in mind the decisions relating to the referendum as expressed in State v. Pyle, supra, and that because of the replacement feature contained in section 1 of chapter 185 the law would be referred to the people for their approval or disapproval consistent with the powers retained by the people by and through the referendum expressed in our Constitution.
There being no language expressing an emergency within the statute, and no emergency clause being attached thereto and it having been passed by a bare majority, and there being a companion chapter, 185, specifically stating that there shall be a replacement and a reduction in the tax heretofore, now and hereafter imposed upon and against the taxable property of the state, I am *Page 356 unable to agree that it comes within the exception as being necessary for the immediate support of the state government and its existing public institutions.
What we said in State ex rel Wegner v. Pyle, supra, is applicable in this case. In it we said: "We have in the law now before us an express declaration of the Legislature requiring that the revenues now derived by levy upon and taxation of property be reduced in the amount of the revenue derived from the new source. Thus on the face of the enactment its intended effect appears by the Legislature's declaration. We do not have to resort to other proof."
I firmly believe that the people reserved unto themselves by referendum the right to pass upon a measure such as this and that it comes within the purpose of the definition given on page 19 of Vol. 43, September issue, 1912, of Initiative, Referendurn Recall: "The referendum will provide a system by which people can defeat legislation which a majority believe will prove detrimental to public interest." I do not believe that the restriction of the scope of the referendum provision as construed in the majority opinion was contemplated by its framers. The right to have such a law referred is guaranteed by the Constitution. The writ applied for should issue.