(concurring specially). The majority opinion says of the 1916 amendment to article 13, § 1, of the Constitution :
“To expressly give power to the legislature to enact such a law the said amendment was adopted.”
The writer of the opinion said the same thing in his separate advisory opinion to the Governor, 38 S. D. 649, 162 N. W. 542. I think such statement violates the universal rule of construction of state Constitutions. When the people of this state adopted the Constitution they said:
“The legislative power of the state shall be vested in a legisatúre.” Article 3, § 1.
In my opinion that was the gift or grant of legislative power, and no subsequent gift or grant of legislative power to the Legislature has ever been madé, or attempted to be made. It was a plenary power, except as otherwise restricted' in the Constitution or by amendment thereto. One 'of these restrictions was contained in article 13, § 1, which, prior to the 1916 amendment, prevented the state from engaging in the farm loan business. It is my view that the amendment of 1916 was not a grant of power, but was a mere removal of a restriction theretofore existing upon the exercise of such power. That being the case, we must view the matter as though there were nothing specific in the *388'Constitution, either pro or con with reference to engaging in the farm loan business. Without any restriction in the Constitution the legislative power is unquestionably broad enough to sanction such business. But there were other restrictions upon the legislative power, one of which was contained in article 13, § 2, with reference to limitation cf indebtedness. The majority are of the view that this limitation of indebtedness was .removed as to the farm loan business substantially because it would not be practical to organize such business upon a $100,000 limit of' indebtedness. It seems immaterial to me whether the state must borrow $100,000, $1,000,000, or even more, in order to successfully transact the business. Even if the constitutional amendment were a grant of power instead of the removal of a restriction, and even if the obligations to be issued constitute a debt within the meaning of article 13, § 2, yet it would not necessarily follow that the law enacted by the Legislature provide?, the only method of instituting and carrying- on the farm loan 'business. It would not necessarily follow that to successfully carry on the business the state must incur a debt in excess of the constitutional limit.
In my opinion article 13, § 2, has not been affected -by the removal of the restrictions contained in the 1916 amendment. Let me illustrate by another clause in article 13, § 1. The loaning or giving of credit or making donations was by the original section prohibited “except for the necessary support of the poor.” Section 2 of said article does not except the support of the poor from the $100,000 limit of indebtedness. Clearly an indebtedness incurred to provide support for the poor would be an indebtedness within the meaning of that section. Suppose section 1 is amended by striking out the above exception. 'Can it he logically urged that there would then be no limit to which the state might go in providing for the support of the poor? It seems to me that the mere statement of the case carries with it its own answer. I think the matter before 11s should be solved according to1 the views of the majority of the Judges in their opinion to the Governor, 38 S. D. 635, 162 N. W. 536, to-wit: That the obligations to be incurred under the Rural Credits Act do not constitute an indebtedness within the meaning of article 13, § 2. I am further of the opinion that if, by reason of maladministration of the rural credit funds, this' state should not be able to> meet its obligations *389arising from the carrying out of the act, still the deficit would not be an indebtedness within the meaning of the section of the Constitution last cited, because provision is made for a tax levy by the Tax Commission to take care of such deficit, and because a debt arising out of a tort is not such a debt as is contemplated by said section of the Constitution.
Upon the other phases of the matter.I agree1 with the majority opinion, and therefore concur in the view that the application for the writ of prohibition was properly denied.
WHITING, J.Having been absent from the state at the time of the oral argument herein, as well as -at the time of the handing down of the court’s decision, I ■ feel- constrained to refrain from taking any part in the formal opinion, though present in court at the time of its filing.