(dissenting).
The debt limitation provision here in question was last discussed by us in Boe v. Foss, 76 S.D. 295, 77 N.W.2d 1. That case states some basic principles concerning this provision of our Constitution which must be kept in mind in approaching the matter in issue. As therein indicated our Constitution reveals a pay as you go policy in the fiscal affairs of our state. The purpose of such policy is to counteract the tendency of the living to obtain conveniences at the expense of unborn generations. It is designed to prevent the casting upon the shoulders of tomorrow the burdens that should be borne by today. In construing and applying such provision it is our duty to effectuate its purpose.
To accomplish this objective the word "debt" as used in that provision must be viewed in the sense in which it is commonly understood rather than as a technical or legalistic term. Our concept of it should not be doctrinaire. "Obligations which are to be paid from revenue subject to appropriation by future Legislatures are subject to the state debt limitation provision." State v. Steen, Neb., 160 N.W.2d 164. What constitutes a debt within this provision is a judicial and not a legislative question. State Office Building Commission v. Trujillo, 46 N.M. 29, 120 P.2d 434. In Boe we said "that nothing short of a limitation applicable to debts of every kind can afford a taxpayer adequate protection." I think it must be held to include the obligations assumed on behalf of the state in relation to these buildings.
*648The rule applied by the majority that future rents are not a debt is of doubtful validity. Concerning it in an article entitled "Evading Debt Limitations with Public Building Authorities: The Costly Subversion of State Constitutions" in Vol. 68, Yale Law Journal, p. 234, the author comments:
"The Wisconsin view — that future rents are not debts as a matter of common law — derives from ancient precedents: the rule is pronounced as a mystery of the common law inherited unchanged from Coke's Littleton. However venerable its origins, the rule appears questionable, for future rent has all the attributes of an immature debt that will become actionable when due. In fact, the rule was possibly poor law even in Lord Coke's day. At any rate, it certainly seems contrary to modern understanding.
To apply it in this case clearly ignores what this court said in Boe.
Quoting from Cooley on Constitutional Limitations, 7th Ed., in construing the provision in question we said in that case "Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government." The extent to which we should go in protecting the taxpayer in our application of the debt limitation provision is made clear by this language from that opinion: "What reason can be advanced for concluding that the practical men of common sense who framed and adopted this compact intended less than the most effective protection they could provide for the taxpayer." Because I think the view of the majority is not in keeping with these salutary basic principles I feel compelled to dissent.
The majority opinion is premised on the proposition that the arrangements entered into between the Authority and the Board of Regents concerning the building on the campus at Northern, and between it and the Board of Charities and Cor*649rections as to the building at the Training School are leases. This I am unable to accept. Practically speaking the state through these agencies, with the sanction of the legislature, is buying these buildings. The arrangements are not in fact leases, but rather contracts of purchase.
The Supreme Court of Maine in Opinion of the Justices, 146 Me. 183, 186, 79 A.2d 753, expresses the same view in these terms. "The so-called lease is not in legal effect a lease, it is a contract of purchase. The so-called rental is not true rent, to wit, payment for the use of property. The total amount of so-called rental is the purchase price the State is to pay for the property." Rent is compensation for the use of property, not the consideration for its purchase.
In this case it is to be noted that the annual payments which the agencies must commit the state to make are not related to any marke value of the property, but are in the precise amount "to provide the income necessary for the payment of said revenue bonds, and for payment of interest thereon and the establishment of necessary reserves therefor and for legal, financing, administrative and other costs incidental thereto". The act provides that when these payments are sufficient to pay the cost of each project or facility, including maintenance and operation expenses and that proportion of the administrative expense of the Authority as provided for by the lease the property shall be conveyed without charge to the lessee. This obviously is limited to the state because the Authority isn't authorized to convey property to anyone else.
Moreover, the act makes it the duty of the Authority to enter into these arrangements with the state. It has no choice. While there is provision for leasing to others in case of default by the state this is window dressing. Under the law the plans and specifications for these buildings are prepared by the agency involved. Because of the special design of these structures and their location, it is unrealistic to believe that anyone else would lease them, or that the state would permit such to happen.
*650After all, these agencies have a continuing responsibility to provide the functions for which these buildings are being acquired. Is it reasonable to believe that the state will not continue these payments? If it does not, the Authority is out of business because the only certain source of income available to it for repayment of its borrowings and interest thereon are the payments made to it by the state for the occupation and acquisition of the facilities provided by it.
A careful reading of the act convinces me that it is a studied effort to circumvent the Constitution. State ex rel. Washington State Finance Committee v. Martin, 62 Wash.2d 645, 384 P.2d 833. That same court in State of Washington ex rel. Washington State Building Financing Authority v. Yelle, 47 Wash.2d 705, 289 P.2d 355, said of a somewhat similar act "When we strip the plan down to fundamentals, we find that it is not a leasing arrangement between landlord and tenant, but the installment purchase by the state of certain buildings and facilities with state moneys raised by taxation, far in excess of the constitutional limitation". See also McCutcheon v. State Building Authority, 13 N.J. 46, 97 A.2d 663; Ayer v. Commissioner of Administration, 340 Mass. 586, 165 N.E.2d 885; City of Phoenix v. Phoenix Civic Auditorium and Convention Center Association, 99 Ariz. 270, 408 P.2d 818. To hold otherwise would be to "exalt artifice over reality". Ayer v. Commissioner of Administration, supra. It is fundamental that the legislature may not accomplish indirectly what it is not permitted to do directly. In determining whether this is being done we must look through form to the substance of a transaction.
In an article entitled "Lease-Financing by Municipal Corporations as a Way Around Debt Limitations", Vol. 25, Geo.Wash. Law Rev., p. 377, the author writes: "Lease-financing is not really renting, but is borrowing. The objections lie in the consequences of this fiction. Intent of constitutional debt limitations is subverted and litigation is invited, bringing in its wake costs and uncertainties, and loss of credit standing. * * * A far better solution to these difficulties lies not in sophistic and strained justifications of lease-financing, but in revision of outmoded pub-*651lie debt limitations." If our provision for debt limitation is thought to be outmoded and our pay as you go policy no longer in keeping with the times, the provision should be abandoned by the electors of the state and not by the courts. The wisdom of it is their concern, not ours.
In State of Washington ex rel. Washington State Building Financing Authority v. Yelle, supra, the Washington Supreme Court wrote: "We recognize the housing problem with which the state is confronted. Nevertheless, we can not permit the exigency of the situation to override the constitutional safeguard against improvidence and the integrity of the state's economy. We can not resort to dexterity of judicial thinking in order to assist the state in its problem. We can not close our eyes to what is actually being attempted." In this summary I wholeheartedly concur. Accordingly, I would deny the motion to dismiss and grant the requested writ of prohibition.