(dissenting).
Under this holding, this taxpayer was required to foresee (like a swami) that retroactive legislation would be imposed upon a transaction which was not subject to taxation when consummated and to then envision (as a mystic) the amount of tax which would be imposed. Wilgard Realty Co. v. Commissioner of Internal Rev., 127 F.2d 514 (2nd Cir.1942), cert. denied 317 U.S. 655, 63 S.Ct. 52, 87 L.Ed. 527 (1942). In this case, this taxpayer contemplated on contesting the validity of the taxes and did so on a timely basis. The majority opinion continues to build on State Ex Rel. Van Emmerik v. Janklow, 304 N.W.2d 700 (S.D.1981) (Van Emmerik). I hew to my dissenting opinion in Van Emmerik. I am not interested in muddling into receipts and taxation methods as does the majority opinion, for the foundation of the majority decision is anchored on Senate Bill 40 which I still believe to be unconstitutional. Furthermore, this case should solely be governed by Matter of Sales Tax Refund Applications, 298 N.W.2d 799 (S.D.1980), as the appellee Department of Revenue (Department) admits that it is so bound. The appellee Department should be estopped from asserting otherwise.
In this case, the taxpayer acted in accordance with the law as it existed at the time of the transaction; there is absolutely no state emergency or state fiscal crisis which would be caused by refunds to this taxpayer (the amount in controversy being less than $6,000); Senate Bill 40 is unfair to this taxpayer, is unreasonable, and defeats the reasonable expectation of the parties. Appellant acted, as it was permitted to do so, under SDCL 10-45-22 to pay any taxes without charging the customer. The equities run in favor of the taxpayer and against the Department. It was impossible for this taxpayer to have foreseen that a higher tax would be imposed retroactively, for the upholding of Senate Bill 40 was not only without precedent but was a reversal of prior holdings. Senate Bill 40 does not modify this taxpayer’s preexisting rights but serves as a complete destruction of its rights.
Senate Bill 40 violates this taxpayer’s rights under art. Ill, § 22 of the South Dakota Constitution which fixes the effective date of legislation. Moreover, Senate Bill 40 appears unconstitutional when viewed in conjunction with art. VI, § 12 of the South Dakota Constitution, which provides:
No ex post facto law, or law impairing the obligation of contracts or making any irrevocable grant of privilege, franchise or immunity, shall be passed.
*303Senate Bill 40 also violates the United States Constitution, art. 1, § 10, which expressly forbids any state to pass a law impairing the obligations of a contract. This Court has long recognized that legislative acts impairing contractual obligations are void. Skinner v. Holt, 9 S.D. 427, 69 N.W. 595 (1896). Senate Bill 40 likewise violates art. VI, § 2 of the South Dakota Constitution and the Fourteenth Amendment of the United States Constitution because it takes property without compensation and due process of law. The legislature could not, by Senate Bill 40, constitutionally delegate to the Department of Revenue authority to fix a sales tax rate which was in excess of that which the statute clearly provided. For the legislature to delegate such authority after the passing of a decade is preposterous. Since the legislature had no such authority to delegate, the legislature had no constitutional right to retroactively ratify.
This situation in this case is entirely different than Van Emmerik in this sense: here the appellant is the taxpayer and is not a mere conduit as were the utility companies. This taxpayer paid all sales taxes under protest, promptly sought a refund within the three-year period as to all taxes paid, explained to the Department that it was wrong, absolutely knew the Department was wrong, and it legally developed that the Department was wrong. The Department was saved by the bell in the political arena via a retroactive legislative act unlike any tax act seen in the history of this Republic. There is something wrong with justice when a wrongdoer, namely, the Department of Revenue, wins in law when it is absolutely wrong in law. The taxpayer knew since May of 1977 that SDCL 10-45-8 was an effective statute; the Department was also aware of this. The Department failed to go to the legislature because it feared displaying its weakness.
However, if salvation is to be found in Senate Bill 40 for the Department, let us examine the language of that bill to see if it applies to this taxpayer. An examination of Section 8, Chapter 102, Senate Bill 40 makes it clear that there was no intent on the part of the Legislature to apply this tax to this taxpayer since such section provides: “The retroactive tax rates created by this Act are effective only to the extent that such taxes have heretofore been collected by the retailer ***,’’
Therefore, a clear reading of Senate Bill 40 reflects that it has no application to appellant. Moreover, in Van Emmerik, 304 N.W.2d at 702, this Court by majority opinion, recognized the importance of Section 8 thereof: “Section 8 of Senate Bill 40 protects retailers who may not have collected the full amount of the tax from their customers.” (Emphasis mine.) This retailer seeks just such protection in this action. Rightfully so. For this Court next noted in a footnote:
The retail sales taxes involved here are the liability of the retailer and not the ultimate consumer. See Van Emmerik v. State, supra. SDCL 10-45-27. While it is true that the tax is likely passed on to the consumer under SDCL 10-45-22, the retailer may, without so advertising, simply fail to add the tax. (Emphasis mine.)
Id. at 702, n. 3. And this taxpayer 'did, indeed, fail to add the tax. This Court then continued: “It provides that the retroactive taxes are effective only to the extent that taxes were theretofore actually collected by the retailer * * *.” (Emphasis mine.) Id. at 702. Are not the words “actually collected” plain enough? By recent dictate of this Court, this appellant, a retailer and taxpayer, should not be required to pay retroactive taxes.
I would reverse the judgment of the trial court as a matter of law and require the Department to refund the money that it now unlawfully holds of appellant. And thus, to teach it by so doing that in law, as in athletics, you must play by the rules of the game.
On this matter of irresponsible official conduct, perhaps I am not alone. My Brothers on the Court of Appeals of Maryland reached an opposite result to this Court’s opinion in Van Emmerik when confronted with a similar retroactive tax increase. See Washington Nat., Etc. v. Trea *304surer, Etc., 287 Md. 38, 54, 410 A.2d 1060, 1069 (1980), cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.Ed.2d 40 (1980), holding that the petitioners were entitled to refunds as a matter of Federal Constitutional right. Also, two of my Brothers on the United States Supreme Court, Justices White and Blackmun, noted that the Van Emmerik case had probable jurisdiction and stated:
Just as it is clear that “the principle of curative legislation could, if carried too far, encourage irresponsible official conduct,” * it is also clear that it is this Court’s duty to define the boundary between permissible and impermissible retroactive tax increases. The question is hardly insubstantial, the lower courts are in conflict, and the Court’s prior cases fail to furnish adequate guidance.
Van Emmerik, 304 N.W.2d 700 (S.D.1981), appeal denied, - U.S. -, -, 102 S.Ct. 986, 988, 71 L.Ed.2d 285, 286 (1982). By caveat, I would add: writ of certiorari was denied in the 1980 Maryland case where it was deemed the taxpayers were entitled to refunds. Whereas, in Van Em-merik, the appeal was denied where the taxpayers were denied refunds. Obviously, the highest Court has not trumpeted its final voice in this matter. And the record, in the Van Emmerik case, reveals irresponsible official conduct by the Department of Revenue of this State. It is also found in the case at bar.
Slawson, Constitutional and Legislative Considerations in Retroactive Lawmaking, 48 Cal.L. Rev. 216, 239 (1960).