(dissenting).
[¶ 49.] The challenged appropriations violate Article XII § 2 of the South Dakota Constitution which prohibits substantive legislation in the general appropriations bill.
Article XII § 2 of the South Dakota Constitution provides:
The general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for common schools. All other appropriations shall be made by separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the Legislature.
[¶ 50.] The funds in question are authorized by SDCL 42-7-71 (S.D. Bred Racing Fund) and by SDCL 42-7-79.1 (Special Racing Revolving Fund). The funds are to “be used by the commission to encourage horse racing and the raising and breeding of horses in South Dakota” (SDCL 42-7-71) and “by the [Racing] commission to increase purses or for operations, or” ... incidental law enforcement expenses (SDCL 42-7-79).
[¶ 51.] The State argues that the transfers from the South Dakota Bred Racing Fund and the Special Racing Revolving Fund do not violate Article XII § 2 of the South Dakota Constitution. The conference opinion agrees, claiming these transfers are permissible because “the Legislature may transfer money subject to a prior continuing appropriation in a special fund to the general fund and reappropriate that money for new purposes.”
[¶ 52.] It is obvious, however, that the challenged general appropriation bill substantively changes the law with respect to (1) the person who will spend the funds, (2) the amount of the funds spent and (3) the purposes for which the funds will be spent. Therefore, it constitutes an appropriation which “shall be made by separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the Legislature.”
[¶ 53.] The cases relied upon neither fully support nor explain the exact basis for the denial of the requested writ of prohibition. For example, in the case of *74State v. Kelly, this Court held that the attempted appropriation of funds in one bill for separate agencies violated Article XII § 2 that mandates special appropriations “be made by separate bills, each embracing but one object[.]” 65 S.D. 345, 353, 274 N.W. 319, 323 (1937). Specifically, this Court stated:
The appropriation under consideration is a direct violation of such constitutional provision [SD Const art XII § 2]. A continuing appropriation for the support and maintenance of the Liquor Control Commission and the Department of Justice and Public Safety is not for a single object or purpose. To uphold a special appropriation bill providing funds for separate and distinct departments, institutions, or agencies of the state government is to permit the objectionable practice at which the constitutional provision under consideration is directed. The attempted appropriation is void and of no effect, and the application for a writ of prohibition is therefore granted.
Id. In reaching this conclusion, this Court stated that Article XII § 2 was applicable regardless of “whether revenue in the state treasury is derived from general taxation, from license fees, or other sources.... ” Id. This constitutional provision “was designed to safeguard public revenues against hasty and ill-advised legislation!.]” Id. Despite the reasoning employed and the result reached in Kelly, the grant of the writ of prohibition, the State uses this case as support for the denial of the writ of prohibition.
[¶ 54.] Similarly, the State also relies upon the case of Duxbury v. Harding, 490 N.W.2d 740 (S.D.1992). In Duxbury, this Court issued a writ of prohibition to prevent the disbursement of certain appropriated funds. The appropriations were held invalid because they had not been the subject of separate bills requiring a two-thirds vote. Again, this case lends credence to the legislators’ position, rather than that of the State’s.
[¶ 55.] If the State’s rationale is followed and such transfers from special to general funds are allowed, there is nothing to prevent the transfer of money from virtually any special fund to the general fund for any ordinary expense. This defeats the safeguard put in place by the South Dakota Constitution, specifically the requirement of a two-thirds vote in both houses for passage of certain appropriations. The purpose of this safeguard is to provide “an adequate guaranty against unwise or imprudent use of public funds, — a rule sufficiently flexible to meet emergencies, yet safe and trustworthy, because resting in the conscience and enlightened judgment of so large a proportion of the people’s immediate representatives.” In re Limitation of Taxation, 3 S.D. 456, 54 N.W. 417, 419 (1893).