(dissenting).
I dissent.
The first chapter of Mr. Bayer’s travails involving sales tax actually began in 1981 when he was hailed into magistrate court in Sioux Falls charged with three felony violations of failure to file sales and service tax returns relating to his bookmaking business. SDCL 10-45-49.1. He entered into a plea bargain agreement, adopted by the court, whereby he was given probation upon the conditions: (1) That he pay $62,-500 in back taxes, penalties and interest; (2) that he adopt appropriate sales tax record-keeping procedures; and (3) that he have no further violations of SDCL ch. 10-45. Bayer apparently complied with the conditions to the extent that he applied for and received a sales tax license. He also paid some $46,000 of the $62,500 determined as back taxes, penalties and interest.
A dispute arose with the Secretary of the Department of Revenue (Department) as to whether the tax was to be computed on the total sums bet or, as Bayer urged, upon only the “vigorish” or service fee charged the better. Bayer appealed Department’s determination and it came before this court via the administrative appeals route in Bayer v. Johnson, 349 N.W.2d 447 (S.D.1984). The majority has denominated that decision as Bayer I, although it is the second chapter in the Bayer saga. The majority decision in Bayer I determined that bookmaking was an activity prohibited by Article III, section 25 of the South Dakota Constitution and the state was precluded from applying sales tax licensing requirements to gambling activities which are prohibited by the constitution. Bayer I, 349 N.W.2d at 450.
As a result of our decision in Bayer I, Bayer sought to recover the money paid under the mandate of the magistrate court in the criminal proceedings first noted above. The magistrate attempted to order the sums returned, but the circuit court reversed the order on appeal, based on Bayer’s failure to pay the tax under protest. On appeal to this court in State v. Bayer, 378 N.W.2d 223 (S.D.1985) (Bayer II) we affirmed the circuit court’s decision on two grounds: (1) That our legislature has provided an exclusive means for recovery of sales tax paid (payment under protest and suit to recover and jurisdiction is absent if the procedure established is not strictly followed); and (2) that Bayer failed to appeal the conditions of probation imposed by the magistrate court.
In this action, Bayer seeks to recover certain tax payments made under protest in the interim between the magistrate’s decision in 1981 and our decision in Bayer I in 1984. He made application to Department under SDCL 10-45-53, and upon Department’s denial of his petition, the administrative appeal route was followed. The circuit court expanded the proceedings to include some payments not originally incorporated in the application for refund. The circuit court affirmed Department and this appeal to our court followed.
I view the grounds upon which Department denied Bayer’s claim to be shabby, at best. As the majority opinion so ably points out, because of our decision in Bayer I, Bayer was under a real and substantial danger of incrimination. Further, Bayer I settled the question of fact that Bayer’s tax payments were based on his business as a bookmaker. The pretense under which Department and the circuit court acted should be reversed.
It is at this point that the otherwise well-written and logical majority opinion loses me completely. The majority states: *888“Since the payments were made upon an unconstitutional activity, we hold Bayer cannot recover.” What unconstitutional activity are we talking about? I agree that Bayer’s bookmaking activity falls within the classification of games of chance which the legislature is forbidden to approve under Article III, section 25 of the South Dakota Constitution. I point out that the exaction of a sales tax on bookmaking activities is the unconstitutional activity we struck down in Bayer I: “If it be the will of the people to license, tax and thus authorize privately operated games of chance, that likewise requires further amendment. It cannot be done by the legislature.” 349 N.W.2d at 450. The constitution does not declare bookmaking illegal or unconstitutional. It prohibits the legislature from authorizing such activity. That is what constitutions are for. They are grants of authority to the legislature or limitations thereon. It rings a little hollow to piously say that we deny access to the courts to Bayer for his so-called unconstitutional activity, but thereby protect the unconstitutional activity of the State in collecting illegal taxes with the aid and assistance of our lower court.
The cases cited as rationale supporting the majority opinion are clearly distinguishable from this case. They all involve transactions that were in and of themselves illegal. In Jasper v. Rossman, 73 S.D. 222, 41 N.W.2d 310 (1950), the suit was for the balance due on a sale of gambling equipment (punchboards). In Ferguson v. Yunt, 13 S.D. 120, 82 N.W. 509 (1900), the suit was to recover on the bond of a stakeholder of a horse-racing bet. E.P. Wilbur Trust Co. v. Fakrendorf 64 S.D. 124, 265 N.W. 1 (1936), involved a suit to recover on a note executed under the inducement of an agreement not to prosecute for alleged embezzlement. In Bartron v. Codington County, 68 S.D. 309, 2 N.W.2d 337 (1942), the suit was for recovery for services and supplies furnished indigents under a contract between the county and a professional corporation of physicians when it was illegal for physicians to incorporate. And finally, Beverage Co. v. Villa Marie Co., 69 S.D. 627, 13 N.W.2d 670 (1944), was for recovery on an illegal transaction for the sale of saloon equipment by a beer distributor to a retail outlet. The transaction involved in the case before us is the payment of taxes. The payment of taxes, burdensome as it may seem sometimes, is hardly an illegal transaction. True, we said in Bayer I that it was unconstitutional for the legislature to impose a sales tax on bookmaking. We did not say, however, that it was either unconstitutional or illegal to pay the tax.
Finally, I note some language in Jasper, supra: “The defense of illegality prevails, not as a protection to the defendant, but as a disability in plaintiff. The reasons for refusing the aid of the court become even stronger when the property is liable to proceedings by the state to enforce a forfeiture.” 73 S.D. at 226, 41 N.W.2d at 312. Again, I point out that the payment of taxes is not illegal, nor is the tax money liable to forfeiture.
I am authorized to state that Justice HENDERSON joins in this dissent.