(dissenting).
Senate Bill 40 offends Art. Ill, § 23, subdivision 9 of the South Dakota Constitution, which prohibits the Legislature from enacting any provision or special law granting to a corporation any special or exclusive privilege, immunity or franchise. The State of South Dakota is protected from any refund claims by the utility companies for any period of time prior to June 1,1976. SDCL 10-45-53 explicitly so provides. Thus, permitting this tax law to be retroactively effective eleven and one-half years prior to its adoption grants the utility companies immunity from any legal action by their customers for excess charges imposed upon them. .This appears to be a clear violation of our State Constitution. The majority opinion is unprecedented in the annals of American Jurisprudence. See Comptroller of the Treasury v. Glenn C. Martin Company, 216 Md. 235,140 A.2d 288 (1958). The majority opinion simply fails to recognize that the State of South Dakota and the aggrieved consumers of electrical energy are in a far different legal posture.
Senate Bill 40 further offends Art. XI, § 2 of the South Dakota Constitution, which provides, inter alia:
Taxes shall be uniform on all property of the same class, and shall be levied and collected for public purposes only.
During oral argument before this Court, the Attorney General was questioned from the bench as to the reason for the additional eight and one-half years retroactivity. The Attorney General responded by stating that he thought what was fair, was fair; that is, the privately owned investor utilities should be shielded from liability in the same manner, and for the same time, as the State of South Dakota. The fair purport of his remarks clearly established that the reason for the deep reach back into history was to benefit these utility companies. It should be noted that he was the author of Senate Bill 40, and appeared before legislative committees in an effort to sell the bill, and was repeatedly seen on statewide television extolling the bill’s merit. But the bottom line is this: The retroactive taxes imposed by Senate Bill 40 prior to June 1, 1976 (the limitation date beyond which no claim for refund against the state could be levied) was for the sole purpose of relieving the utility companies of a legal obligation to make restitution to affected electrical con*711sumers for excess charges illegally exacted from them. Obviously, this is not a public purpose and is therefore unconstitutional. White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614 (1925).
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 working any irrevocable grant of privilege, franchise or immunity shall be passed.
Senate Bill 40 also violates the United States Constitution, Art. I, § 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). Affected consumers have a right to recover from a utility company any rate overcharges that were collected in violation of the law. Cass Clay, Inc. v. Northwestern Public Service Company, 63 P.R.D. 34 (D.S.D.1974). In the instant case, petitioner contracted with the utilities to be charged at the established legal rate, plus sales tax. Due to the utilities’ eleven and one-half year failure to comply with SDCL 10-45-6, the contract between respondent utilities and petitioner was breached; thus, petitioner had a right to recover the excess charges. By retroactively applying Senate Bill 40 to canvas the entire duration of the utilities’ breach, the majority opinion impairs an existing contractual obligation, which is blatantly inconsistent with the letter and spirit of our state’s constitutional law.
I am simply amazed at the turnabout of this Court from its decisions in Matter of the Appeal of the Sales Tax Refund Applications of Black Hills Power and Light Co., 298 N.W.2d 799 (S.D.1980), and Van Emmerik v. State, 298 N.W.2d 804 (S.D.1980). We held in those cases that there should be a determination of a credit or refund pursuant to the provisions of SDCL 10-45-53. According to that statute, the Commissioner of Revenue was to make that determination. It appeared that the Court had spoken, entered judgment, and a ministerial duty existed. However, the Commissioner of Revenue, himself an attorney general, did nothing to go forward with his judicially and statutorily determined duty. Therefore, the decisions of this Court were frustrated. Our decisions became mired in a lower court, to there linger and die. This does not appear to me to be in the best public interest.
Our decisions were then placed into the political arena. Senate Bill 40, through the intense lobbying of the executive branch, became law. In essence, its purpose is to make the illegal legal. It must, of necessity, pass constitutional muster. It does not, to the extent and for the reasons that I have expressed above.
I find the language of the majority decision and its reasoning to be in conflict with the language expressed in Black Hills Power. In Black Hills Power, we were adamant that the Legislature had, since 1969, intentionally granted a special sales tax concession to certain utility services. Therefore, I view the eleven and one-half year retroactive application of an additional one cent tax as an imposition of a new tax and not the curing of a “defect.” The preamble to Senate Bill 40 recites a legislative finding that at all times since July 1, 1969, the Legislature intended to apply the same rate of tax to utility bills as was applicable to retail sales. This is in direct contradiction to this Court’s construction of the applicable statutes in November, 1980. I place small credence in the preamble. It is a cover-up. As was recently stated:
We have pointed out that a statement by present members of a legislative body, as to what their predecessors intended in a statute enacted several years previously, is not entitled to much weight.
Washington National Arena Limited Partnership v. Treasurer, Prince George’s County, 287 Md. 38, 410 A.2d 1060, 1069, fn. 7 (1980). Now, the majority opinion states: “The unauthorized tax had been mistakenly collected without interruption since 1969[.]” Footnote 5 of the majority opin*712ion appears to be in direct conflict with our expressions in the next to the last full paragraph of Black Hills Power.
Constant reference has been made by the Governor’s office and the Attorney General’s office as to Senate Bill 40 being in the best public interest. Furthermore, the executive branch has publicly urged that this case be treated with immediate attention or South Dakota would face financial ruin. Senate Bill 40 was flaming legislation. I am opposed to fire engine justice to put out the flame. It is good for it to cool. In other words, I feel compelled to thoughtfully reflect upon the constitutionality of this act.
I believe that when two branches of government fuse, such as the executive and legislative branches, that the third branch, namely the judicial branch, owes an awesome duty to protect the State Constitution and the great doctrine of the separation of powers. And that is in the public interest.
Tax collectors should collect only that amount of tax which they are authorized to collect. And that is in the public interest.
Lastly, it is in the public interest that the officials of this state act within the bounds of law and not try to cover up their wrong by urging a greater wrong. The state should not be above the law anymore than any ordinary citizen. The Department of Revenue of this state apparently had knowledge of its wrongful excessive tax collection in May of 1977 when it was called to its attention that taxes were being collected in excess of the state law. Its hands are not clean.
I agree with Justice Dunn that a validation of Senate Bill 40 must be in the public interest. Can it be in the public interest for the Department of Revenue to knowingly flout a state law? I do not believe so. Arguments were heard in the Legislature and before this Court that the state needed the money and it could not afford to either refund the money to the people or give the people a credit. The state is essentially arguing that it has the right to keep the people’s money so that government can operate. Fear of a ghost or phantom law to replace the lost revenue was used to pass Senate Bill 40. These are economic arguments, not legal arguments, and fly in the face of payment of a just obligation. The unlawful actions by the Department of Revenue in collecting sales tax at a rate greater than that imposed by the plain wording of the statue triggered this entire litigation.
At the risk of suffering the pundits of the intelligentsia, I am reminded of Luke 3:12-13, wherein John the Baptist stated upon being questioned by tax collectors: “Then came also publicans to be baptized, and said unto him, Master, what shall we do? And he said unto them, exact no more than that which is appointed you.”