(dissenting).
[¶ 17.] Article VI, Section 15 of the South Dakota Constitution provides:
No person shall be imprisoned for debt arising out of or founded upon a contract.
[¶ 18.] I disagree with the majority and vote to affirm the trial court. SDCL 33-5-15.1 is unconstitutional under article VI, section 15, of the South Dakota Constitution, which prohibits imprisonment for debt arising from contract. As indicated above, the plain words of article VI, section 15 clearly prohibit imprisonment for debt arising from contract.
[¶ 19.] The majority concedes that the Enlistment/Reenlistment Agreement is a contract. It claims instead that Allison’s obligation under the contract does not create a debt. Nonsense. If it is not a debt, Allison does not owe anything. If he does not owe anything, he can not be prosecuted. The majority defines debt as a “liability to pay money growing out of an express or implied contract.” I do not disagree with this definition. Therefore, in plain language, this is a debt.
[¶ 20.] Webster’s Third New International Dictionary 583 (1976) defines “debt” more broadly as:
[A] neglect or violation of duty; a state of owing; something (as money, goods, or services) owed by one person to another; something that one person is bound to pay to another or perform for his benefit; something owed: obligation. ...
See also City of Cincinnati v. DeGolyer, 25 Ohio St.2d 101, 267 N.E.2d 282, 284 (1971) (defining a debt as “[a]ll that is due a man under any form of obligation or promise.”) (citation omitted) (emphasis added).
[¶ 21.] Allison was contractually obligated to return certain goods to the government. For whatever reason, he neglected to fulfill that obligation. That is a debt. Furthermore, the majority fails to acknowledge that Allison’s obligation to return military property was set at a monetary value of $662.62. In fact, the State attempted to notify Allison that he could write a check for that amount to avoid prosecution. Therefore, even under these facts and the majority’s strained analysis, Allison was contractually indebted to the State.
[¶ 22.] In recognizing that Allison’s obligation may be a “debt,” the majority proceeds to assert that it “could not be characterized as a private debt.” Whether a person contracts with a private citizen or the government should be immaterial. Our state constitution provides that “No person shall be imprisoned for debt arising out of or founded upon a contract.” An attempted distinction between public and private debt makes little difference to the real issue here. See DeGolyer, 267 N.E.2d at 284 (holding that a tax is a debt and “one can not be imprisoned for the mere failure to pay taxes, in the absence of ... fraud.”). Pursuant to the plain language of the constitution, when a debt arises out of a contract, as it does here, the debtor can not be imprisoned. What will the majority do next — imprison students for delay or failure in repaying student loans?
[¶ 23.] The majority cites three cases where article VI, section 15 of the South Dakota Constitution was used to challenge other statutes. However, those cases can and should be distinguished from Allison’s case. In State v. Huth, 334 N.W.2d 485, 489-90 (S.D.1983), we determined that imprisonment after failure to pay fees and costs was not violative of the provision. In White Eagle v. State, 280 N.W.2d 659, 661 (S.D.1979), we determined that repayment of court-appointed attorney’s fees as a con*7dition of probation was not unconstitutional. Finally, in Hanks v. Hanks, 334 N.W.2d 856, 857-58 (S.D.1983), we held that imprisonment based on a neglect to pay alimony and child support obligations was not a debt founded on contract. The common thread throughout these cases is easily determined - the payment of money was court-ordered. The court ordered the defendant to pay fees and costs, the court ordered the defendant to pay his court-appointed attorney’s fees, and the court ordered the obligor to pay alimony and child support. Clearly, the “debtor” in these cases was not imprisoned for the failure to pay a debt, the “debtor” was imprisoned for willful failure to obey the order of a court.
[II24.] In contrast, Allison was not ordered by any court to return the military property. The only obligation he had to return the property was in accordance with the EnlistmenVReenlistment Agreement — it was a contractual duty to return property; there was no court-order here. Therefore, the majority’s cases are easily distinguishable and unpersuasive.
[¶ 25.] A case more directly on point is Commercial Nat’l Bank of Sturgis v. Smith, 60 S.D. 376, 244 N.W. 521, 523 (1932) where this court analyzed a statutory amendment that determined that a contractor, who “appropriate^ money paid to him for any use or purpose, other than that for which he received it,” was guilty of embezzlement. In a 5-0 decision, the Commercial court stated:
In our opinion the Legislature is without authority to provide that a contractor shall be deemed guilty of a crime punishable by imprisonment for failure to pay the claims of creditors furnishing labor and materials from money paid to him under contract.
Id. The source of the statute in question was a California statutory amendment as explained in People v. Holder, 53 Cal.App.45, 199 P. 832, 834 (1921). The Holder case held that the legislature was without authority to “provide that a contractor who breaches his agreement to pay a certain class of debts with money that is his own shall, for that reason alone, be deemed guilty of a crime punishable with imprisonment.” Id. at 524. Commercial adopted much of the Holder language:
Any legislation that makes it a crime for one to use his own money for any purpose other than the payment of his debts is violative of section 15 of article 1 of the Constitution of this state, which expressly inhibits imprisonment for debt except in cases of fraud.
Id. (emphasis added). Not surprisingly, the Commercial court held that the South Dakota amendment was also unconstitutional because it conflicted with the state constitutional provision prohibiting imprisonment for debt arising out of or founded on a contract. Id.
[¶ 26.] Here, the majority prematurely and erroneously concludes that the statute is constitutional because they fail to address the issue of fraud. In accordance with Commercial, this statute can be constitutional only if the element of fraud is proven. Therefore, this statute could be constitutional only if the State establishes that Allison fraudulently kept the State’s property.
[¶ 27.] In order to prove fraud, the State must prove that Allison made “a representation ... of fact, which was untrue and known to be untrue by [Allison], or else recklessly made; [and] made with intent to deceive and for the purpose of inducing the [State] to act upon it.” Klinker v. Beach, 1996 SD 56, ¶ 13, 547 N.W.2d 572, 576 (citation omitted). A review of the record reveals that prior to the filing of criminal action, the South Dakota National Guard attempted to contact Allison by sending him two certified letters requesting the return of State property. Both letters were returned as “unclaimed.” Then Allison was arrested for violating SDCL 33-5-15.1. Based on this record evidence, Allison made no representations of fact concerning the return of the State’s property.
*8[¶ 28.] In summary, the first error of the majority is in determining that SDCL 33-5-15.1 is constitutional. The agreement between Allison and the State is a contractual duty to return military property. Allison’s breach of contract resulted in his indebtedness to the State. Incredibly, under the majority’s analysis, if the property was not returned because it was consumed, lost, stolen or destroyed, Allison would still be subject to felony prosecution. In other words, even if it was physically impossible for Allison to return the property because of destruction, the statute, as drawn, provides imprisonment for debt arising from contract. This is clearly unconstitutional.
[IT 29.] The appropriate course of action for the State should be to seek civil remedies against Allison, such as replevin, specific performance or an action to collect the debt. Imprisoning Allison for breach of contract converts civil remedies to criminal punishment and is unconstitutional.4
[¶ 30.] The majority’s second error is its failure to address the Commercial case and the absence of fraud. Even under the majority’s erroneous analysis, the statute can not be considered constitutional unless fraud can be proven. There are no allegations of fraud against Allison, nor can fraud be determined by the record facts. I respectfully submit that it is the majority opinion that misses the point. Under the South Dakota Constitution, one cannot be imprisoned for debt arising from contract. Intent to deprive is simply a breach of contract and is not enough to imprison. Instead, there must be FRAUD.
[¶ 31.] The majority opinion turns upside down — American history, unanimous South Dakota precedent and the South Dakota Constitution. For what? The mere expediency of imprisonment for debt, for the State? What do we have to do? Fight the American Revolution all over again? Against whom? The State? Or this court?
[¶ 32.] I vote to affirm the trial court’s grant of Allison’s motion to dismiss.
. Footnote 3 of the majority opinion inquires whether the Government’s remedy of replevin '‘[w]ould [] apply to an Air National Guard pilot who decided to keep a fully armed F-16?”
In peacetime, the answer depends upon the motives of the Government.
If the motive is the return of the airplane, the answer is replevin.
If the motive is revenge and punishment, the answer is imprisonment for debt.
Even Shakespeare's creditor in The ■ Merchant of Venice was denied his pound of flesh nearest the heart.