(dissenting.) By section 30 of article 5 of the state 'Constitution, declaring that a judge shall receive no compensation, perquisite, or emolument for or on account of his office in any form whatever, and of section 2 of article 21, limiting salaries of judicial and certain executive officers to fixed amounts, and providing that such officials shall receive no- fees or perquisite whatever for the performance of any duties connected with their offices, and that it shall not be competent for the Legislature to increase the salaries of such officers, the people in their fundamental law, binding alike upon courts, executive officers, and legislators, have drastically limited these compensations. Both the letter and spirit of these provisions forbid additional reward in any form whatever. These sections, by common consent and by legislative and judicial acquiescence, for over. 20 years were held to have prevented payment of even necessary official expense. The people of this state, at the biennial elections in recent years, have been repeatedly asked to so amend these constitutional provisions that salaries in some manner adequate to the duties performed may be paid, but have steadfastly refused. The spirit as well as the letter of a controlling constitutional provision must be obeyed. -Courts, however reluctant to hold void a law enacted by the representatives of the people, such as chapter 400 of the Laws of 1921, have no alternative when a choice must be made between such a law and a constitutional provision. The Attorney General, for plaintiff, on the oral argument conceded to the lawmaking power the right to pay the official expenses of these public officers, i. e., expenses necessarily -connected with the discharge of their, official duties, but denied the right to appro*610-priate public moneys, for- private expenses. .Household expenses, 'living expenses, whether increased or diminished and regardless of where an official may elect to reside, are in their nature pri'vate, individual. These are the personal burdens bn every man’s ’shoulders. Payment directly or indirectly of a dollar thereon constitutes compensation, perquisite, or emolument additional • to a prescribed salary. This act, being in the main for an unconstitutional purpose, that is; the payment of increased expenses of living at a pláce other 'than the legal residence of a judge of the Supreme Court, must wholly fail.
In the majority opinion it is said that the Constitution of the state does not contain any restrictions upon the power. of the Legislature to make allowance for the expenses of the several constitutional state officers who are interveners in this proceeding. The Constitution (section 2, art. 21) does provide that it shall not be competent for the Legislature to increase the salaries of these officers. The Legislature, thus limited, certainly may not go beyond payment of the actual official expense. Payment to or for an officer of public funds in excess of such expenses, or for private of personal use, is an increase of salary and' clearly forbidden. It is too patent to be denied that this "expense” law owes its origin to the fact that these salaries, fixed 32 years ago, are now unfair and wholly disproportionate to the duties and the conditions under which they must be performed. The remedy for this wrong and injustice lies, however, not with the Legislature or the courts, but with the people.
It is said that the members of the ¡Supreme Court, if they had continued to reside at the place of their legal ’residence, might have been allowed expenses of travel to and from the seat of government and living expenses while there, as official expenses. Even if this were true, the fact that these judicial officers for years past have elected to live at Pierre and are permanently domiciled there precludes the possibility of classifying their living expenses, or part thereof, asdn any sense “official.” .The personal character of living expenses is the same in Deadwood, 'Aberdeen, or Pierre, and is not affected by mere change of location.
The Supreme Court of this state, in the case of McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858, Ann. Cas. 1917A, 1046, sustained a law similar in terms to chapter 400 *611of the Laws of 1921, awarding to the judges of that court $50 per month for. these expenses. The majority),opinion here cites Smith v. Jackson, 241 Fed. 749, 154 C. C. A. 449, as supporting-the same. In the federal case the sole question was as to.the authority of the auditor of the Panama Canal, without law or departmental regulation, to deduct from the salary of a federal judge rent for use of a house in the Canal Zone, not a question such as is involved here.
In State v. Thomason, 142 Tenn. 527, 221 S. W. 492, also, cited as supporting McCoy v. Handlin Case, supra, the expenses provided for were “for stenographer work and other necessary expenses” — presumably expenses incident to the performance of official duty.
In Macon County v. Williams (Mo.) 224 S. W. 835, it was held that $1,200 in lump sum, per annum, which the Legislature had allowed a circuit judge to- cover hié expenses, was not paid as compensation; The questions involved in McCoy v. Handlin and the instant case were not before the Missouri court.
The compensation of $3,000 per annum provided for by section 2, art. 21, is intended to cover the services of a member of the court and such personal expenses .as may. be connected therewith. Section 4 of* article 5 directs that two terms of the Supreme. Court shall be held each year at the seat of government. Chapter 400, Laws of 1921, allowing each member .$150 a month as expenses of removing to the state capital, additional living expenses there, and expenses of travel to and from his legal residence, constitutes additional compensation, and is in conflict with section 30, art. 5, of the state Constitution, prohibiting any compensation, perquisite, or emolument for or on account of his office, in any form whatever, except the salary fixed. Leekenby v. Post Printing Co., 65 Colo. 443, 176 Pac. 490; Terrell v. Middleton (Tex. Civ. App.) 187 S. W. 367; Bailey v. Kelly, 70 Kan. 869, 79 Pac. 735; State ex rel. Fox v. Raine, 49 Ohio St. 580, 31 N. E. 741; Cullom v. Dolloff, 94 Ill. 330; People ex rel. Bolton v. Albertson, 55 N. Y. 50.
Attention of this court has not been called to an authority of any other state sustaining the-payment of'the living expenses of a public officer at the place at which he resides, or is called upon-to perform his general official duties. •
*612The effect of this enactment is to increase the compensation of the Supreme Court judges from $3,000 to $4,800 annually, and permit them to pay certain personal expenses themselves. The fact that the compensation probably should’ be $7,500 per annum instead of $3,000 cannot affect the legal situation or validate this act.
The Constitution (article 4, § 12) requires that state officials perform their duties at the seat of government. The compensation, limited to $r,8oo per annum, is intended to cover their official services and personal expenses connected therewith. The act awarding $50 per month as expenses of removal to the capital, the increased expense of living at a place other than his legal residence, and the expense of traveling to aiid from such legal residence, awards additional compensation and is in conflict with section 2 of article 21 of the state Constitution. These defined expenses are not public, not official, not connected with the performance of official duties, but of a purely personal. and individual character.
The payment of $900 per annum in a lump sum for expenses of circuit judges violates the constitutional salary limitations. The Legislature may pay circuit judges only the actual expenses necessarily incurred in the discharge of the duties of their office. If this statute is upheld, circuit judges will receive an annual salary not of $2,500, as provided by the Constitution, but $3,400, with the personal obligation of paying their own expenses. So far as the state is concerned the payment of $3,400 is absolute, and the payment of expenses incurred a matter solely within the discretion of the incumbent of the judicial office.