(dissenting).
*552In State ex rel. Wegner v. Pyle, 55 S.D. 269, 226 N.W. 280, the court held the reservation in Art. III, § 1, of the Constitution that
"the people expressly reserve to themselves the right * * * to require that any laws which the legislature may have enacted shall be submitted to a vote of the electors * * * before going into effect * * *"
was not to be strictly construed. It wrote:
"This language is plain, and leaves no room for construction either strict or liberal * * *".
Then, after quoting the clause which excepted from referendum
" Taws * * * necessary for the * * * support of the state government * * "
the court continued:
"* * * if any part * * * is to be strictly construed, it is this exception."
The courts in effect are unanimous in support of the rule by saying the referendum provision should be given liberal construction.1 Our state legislature has declared this same policy in construing petitions. SDC 55.0406.
Courts have uniformly said the power of initiative and referendum is the exercise of a power reserved to the people and not the exercise of a right granted to them. Palmer v. Broadbent, 123 Utah 580, 260 P.2d 581. No technical inhibitions or prohibitions should be set up by administrators to whom such requests are by law submitted. State ex rel. Benham v. Cheever, 71 Wyo. 303, 257 P.2d 337.
Our decisions recognize the referendum as part of the legislative process. State ex rel. Wegner v. Pyle, 55 S. D. 269, 276, 226 N.W. 280, 283. Of that and the use of the word "necessary" the court wrote:
*553"As between the two law-making powers, we must give to the word 'necessary' some meaning. In doing so we do not presume to say the law is not necessary legislation, since the Legislature in its wisdom has seen fit to enact it. We say that the legislative determination, even though binding on all departments of government, including this court, is not binding on the paramount legislative power vested in the people, and that they may ratify or repudiate it as they see fit.
"This court * * * must certainly * * * determine the powers of each (the people and the legislature) in the field of legislation. There can be no power in the Legislature to conclude by its action a reserved right belonging to the people. To iso hold would be to sanction a usurpation of power and make the Legislature supreme. * * *
"Conceding that it is * * * a law for the support of the state government * * * we must decide if it is necessary for such support * * (Emphasis supplied.)
Originally by Art. Ill, § 6 and § 7, the legislature met in regular session once every two years. These sections were amended in 1962 to provide for sessions in January of every year. Thus, while the legislature may provide for appropriations over a biennium, it may at any of these sessions change both appropriations and tax measures, so annual fiscal computations are now properly considered to determine whether the law is necessary for support of the state government. See Art. XI, § 1, of the Constitution which declares, "The legislature shall provide for an annual tax, sufficient to defray the estimated ordinary expenses of the state for each year * * *". However, annual and biennial figures are both here shown.
Bearing the above rules in mind and that the constitutional provision reserves to the people the power of referendum of all laws except such "as may be necessary for the * * * SUp_ port of the state government * * *" (which excepting clause is to be strictly construed) the facts either stipulated to or from *554official records in the offices of state and constitutional officers are now set out.
Appropriations for the two year period from July 1, 1965, to June 30, 1967, were $109,011,197. Deducting $6,048,500 heretofore held unconstitutionally included in the General Appropriation Bill (State ex rel. Oster v. Jorgenson, 81 S.D. 447, 136 N.W.2d 870) leaves $102,962,697 for the biennium or $51,481,349 for each fiscal year. It is stipulated this included all continuing appropriations.' The State Auditor's record shows an unobligated balance in the general fund on June 30, 1965 of $8,713,772.2 This is the net amount over all outstanding warrants and claims, including appropriations made but not yet actually expended.
Under Art. XI, § 1, supra, the annual tax may not exceed two mills on the dollar for ordinary expenses of the state, interest, etc. set out therein. The constitutional authority to levy this tax, formerly with the Tax Commission, is now vested with the State Board of Equalization. That Board is required to .determine the rate of state tax to be levied for the purposes stated, including "payment of all appropriations made by the Legislature". SDC 57.0501. To perform the constitutional and statutory duty, the Board is required to determine the amount in dollars necessary to be raised and "shall require the State Treasurer to certify * -* * the amounts available in the general fund of the state and the probable amounts to become available during the year, from whatever source other than the general property tax." The Board then deducts from the amount necessary to be raised, the amounts certified by the State Treasurer and as ascertained by the Board as being available and
"shall then levy a tax against the taxable property in the state sufficient only to provide the revenues necessary to equal the balance of the sum ascertained to be necessary to meet the requirements * * (Emphasis supplied.) SDC 57.0501.
On August 2, 1965, the Board met to perform its duties. The State Treasurer certified to the Board in writing the amounts and fig*555ures required by law, which were recorded in its records. For the fiscal year ending June 30, 1966, they show transfers of $3,-836,424 and receipts of $48,893,870, or $52,730,294, which with the net general fund balance above set out totals $61,444,066. Deducting the $51,481,349 appropriations from that total leaves a surplus of $9,962,717. For the biennium on the same basis, the surplus is $9,797,481.
This report of the State Treasurer made to another State Board in its official capacity in the performance of duties required by law, declares that without considering any receipt from the law sought to be referred and after paying out all funds appropriated for the fiscal year a net surplus will exist in a sum greater than that existing June 30, 1965. This compels the conclusion the efficient operation of state government will be unaffected by the delay or possible defeat of the law, and cannot be said to be necessary so as to prevent a referral within the words of the majority opinion which correctly states the holding in State ex rel. Wegner v. Pyle, supra. This case is that simple.
But that is not all. The official records of the meeting of the State Board of Equalization show the State Treasurer was called in to analyze his report and he correctly stated if the act broadening the 3% sales tax to include services (which was then subject to attack as unconstitutional) were invalidated by the Supreme Court, the state government could continue to function. The State Budget Director appeared and discussed the financial report and concurred in the Treasurer's opinion that no state tax levy was necessary. Thereafter in official action, the Board unanimously determined "NO STATE LEVY IS REQUIRED". That determination made by the Board is conclusive that Chapter 296 which levies a 3% tax on certain "services and professions" not theretofore taxed was, and is, not necessary for the support of the state government. That action made within its official authority and under mandatory requirement of law is binding on the court and supports the undeniable fact that without this tax, the support of state government will be unaffected. If so, as stated, the act is referable. State ex rel. Wegner v. Pyle, 55 S.D. 269, 280, 226 N.W. 280, 284, hereafter quoted. While those official records and acts are conclusive, every *556other record supports and fortifies the Board's decision and the similar conclusion the act is not necessary.
The majority describes it as incongruous to hold that events subsequent to July 1, 1965 affect the facts then in existence as to necessity and cites as such events the proceedings of the State Board of Equalization of a month later and this court's decision deleting about six million dollars from the appropriations as unconstitutional. This is a non sequitur as the facts and assumptions stated were in existence on July 1, 1965.
As to the unconstitutional appropriations it is universally held:
"that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed." (Emphasis supplied.) 16 Am.Jur.2d, Constitutional Law, § 177.
This text voices the words of Anderson v. Lehmkuhl, 119 Neb. 451, 229 N.W. 773, and State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 S.W.2d 319, to name but two of the host of cases cited in support thereof, without a holding to the contrary. The text also states, "no courts are bound to enforce" such a statute, and thus, the constitutional appropriations only had legal existence on July 1, 1965. All persons are presumed to know the law. 16 Am.Jur.2d, Constitutional Law, § 178. The legislature was charged with that knowledge when it passed the bill and this court when it was challenged by the referendum attempt before July 1, 1965.
With reference to the Board's proceedings, it considered the financial situation of the state as of July 1, 1965, based on the State Treasurer's Report as of that date. So both the majority's requirements were present, only the constitutional appropriations existed and the financial situation of the state reported as of July 1, 1965, were then, and now are, matters of record. Only *557additionally, the Board, delegated as an arm of the legislature, was performing an act which was a continuance of legislative power. To say its decision made 30 days later is to be given no credence, is a tenuous thread of support. While the court contends it does not desire to weigh its judgment against that of the legislature, it is in effect entering that field and overruling or 'setting aside a decision of the legislative department.
Returning now to the Constitution, Art. Ill, § 1, reserves the right to the people to refer any laws except such as may be necessary for the support of the state government. What are such laws and what is the test to be applied? The majority opinion states the rule, but here is quoted the answer as written by this court:
"The true test in determining whether or not a law is necessary for the support of the state government is, What will be the effect upon the state government if the law is suspended until a vote can be taken, or what will be the effect if it is finally defeated? In the instant case, it is plain that the support of the government will be unaffected in any manner." State ex rel. Wegner v. Pyle, 55 S.D. 269, 280, 226 N.W. 280, 284.
That is the case at bar. A State Board of Equalization having been delegated by the legislature the constitutional authority and mandatory duty to levy a general property tax to meet the "requirements of the state" duly declared no further money or levy was necessary as of July 1, 1965. At that meeting the State Treasurer stated, as these figures show without dispute, that if the act here in issue — were to be declared invalid by the Supreme Court "the 'state government could continue to function". The State Budget Director concurred with the opinion of the State Treasurer that "no state levy is required". Such is the record of that Board.
Attention is called to the fact that when the Board met on August 2, 1965, state appropriations (upon which it based the decision not to make a state levy) appeared on its face to be over six million greater than at present for, on September 21, *5581965, this court in the Oster decision, supra, deleted that amount from the appropriations.
To pursue the subject further, a comparison of the last two years shows the estimated receipts were on the conservative side. The Board's records show the following:
ESTIMATED RECEIPTS
Fiscal Year For the Next Year Actual Receipts
1964 $33,219,305 $33,576,121
1965 32,511,265 34,202,897
An examination of the Treasurer's report3 confirms this safe and conservative judgment by checking the estimate of the retail sales tax item. The August 1964 estimate of 17Vz million dollars for fiscal 1965 resulted in actual collections of over 18 million at the 2% rate. The 1965 estimate for fiscal 1966 at the 3% rate was raised at that rate, not on the actual 1965 receipts, but rather on the lower 1965 estimate. Other items appear to have been overlooked or omitted. The use tax actual collection of $187,140 for fiscal 1965 at the 2% rate, was estimated to be less for fiscal 1966: — $185,000—when the new tax rate in this item was also raised to 3%. 1965 Session Laws, Ch. 288. This should bring in an additional $90,000. The cigarette tax actual collection was $4,022,725 for fiscal 1965 at the 60 rate; by Ch. 293 of the 1965 Session Laws the rate was raised 20 to 80 per package; again the revenue for the 1966 fiscal year at the higher rate was estimated in a lower amount: — $4,000,000. In his message to the legislature, Governor Boe referred to retiring Governor Gubbrud's proposed two cent increase of the cigarette tax as obtaining IVz million additional revenue annually.
The Governor's message was an official act required of him by the Constitution, Art. IV, § 4, and ought not be discarded but should be given consideration where, as here, it coincides with other official duties and records.
*559It is not reasonable to conclude the legislature would raise the use tax rate from 2% to 3% and the cigarette tax from 60 to 80 and collect less revenue than at the lower rate. Nor did the Treasurer or Board conclude that as to the raise in the sales tax. Consistent with the raise in the estimate of the sales tax collection is the added revenue from the use tax in the same proportion and that of the added revenue from the cigarette tax. Giving reasonable effect to these two legislative acts adds $1,300,000 each year to this surplus. The $9,962,717 annual surplus on June 30, 1966, thus becomes $11,262,717 and the 1967 surplus of $9,797,481 for the biennium becomes $12,397,481. It must be remembered none of these amounts includes any revenue from the act sought to be referred.
The debt limit of $100,000 in Art. XIII, § 2, of the Constitution does not "constructively require" South Dakota to maintain a surplus as defendant urges. Neither the Constitution nor our statutes mentions or authorizes a surplus or any term synonymous or similar to it. Contrawise the Constitution reserves the referendum to those acts or tax measures not "necessary". SDC 57.0501 gives the State Board of Equalization the authority and requires it to levy a tax at a limited rate,
"which will produce a revenue sufficient to defray the. estimated expense of the current year * * *"
and after considering the financial 'situation, it
"shall then levy a tax against the taxable property in the state sufficient only to provide the revenues necessary to equal the balance of the sum ascertained to be necessary to meet the requirements of the state * * (Emphasis supplied.)
That an incidental 'surplus may remain or is desirable in the sum of $4,000,000 which Governor Gubbrud stated was needed "to protect us against a drop in revenues" and Governor Boe stated was "economically sufficient", may be of some interest. 1965 Senate Journal, pages 24 and 27. These comments may be justified by and founded on a philosophy indicated in laws passed by the legislature permitting levies by local governments of annual expenses, plus 5% as a reserve. *560See e. g., SDC 1960 Supp. 57.0505; this authority does not apply to the constitutional problem at issue.
We should take judicial notice of these communications as they are a matter of common knowledge; in any event we should know and take judicial notice of the official record of the legislature and the highest officers of our state in the performance of their constitutional duties.4 Supporting their assurances is the fact this surplus was only 3% million in 1962, a stipulated fact the majority does not mention. Admittedly there will be a surplus greater than that without the revenue from the act sought to be referred and of such a size as to remove any question of its necessity.
With commendable candor defendant's brief does not dispute a surplus will exist, differing only as to the amount thereof.5 The figures are shown in Appendix "A" herewith. They are exact and shown on both an annual and biennial basis, to indicate the surpluses at the end of each fiscal year. As to that point, with the legislature now meeting annually, an annual fiscal year only should be considered. That is because each session has the power to reduce, repeal or pass additional appropriations and revert unobligated balances to the general fund and may also pass new tax or revenue measures or reduce or *561repeal present tax laws. Discussion on any other basis is, therefore, inadmissible for it is pure speculation what the next session will or will not do as to one or several of the named alternatives. The only reasonable assumption is that in compliance with the State Constitution the 1966 Legislative Session will continue old, and create new tax laws, if necessary, to pay the funds then appropriated. Putting aside new appropriations or new tax laws the 1966 Session may pass, if any, it will be interesting to take note of the surpluses at the end of the fiscal years 1966 and 1967.
This year the court has held a legislative act levying this tax constitutional against an attack as to its title and meaning; it has in the main upheld a legislative general appropriation bill that departed from a custom of over a half century and approved such a bill to include nearly everything but new construction, acquisitions of property and aid to some government subdivisions. Both of these were contests between the power of the government and its citizens. Here it is a controversy between the smaller elected legislature and the "paramount" legislature — the voters — over a division of the latter's reserved power to legislate, a right which they share by the Constitution to approve the act should they so desire. In the Wegner referendum the people did not approve the act and defeated it 142,425 to 46,109. In our history the voters have approved two referred laws; one imposing a butter substitute tax and another an act regulating hospitals and maternity homes. Seventeen have been defeated, including money or tax bills, yet the state government survived.
I am unwilling to fetter or interfere with that constitutional right of the voters to perform their part of this reserved legislative power. As was aptly stated by the court in the Wegner opinion, supra:
"To so hold would be to sanction a usurpation of power and make the Législature supreme. * * * If it is necessary, the voters can adopt it."
*562For the reasons given, I am compelled to dissent.6
APPENDIX "A"
Three taxes were raised in 1965 other than challenged Ch. 296. They were the sales, use and cigarette taxes. Only the added 1(5 sales tax, used by the Board of Equalization is shown on the following chart taken from the stipulated facts, the Oster decision and exact amounts of record:
ANNUAL BASIS RECORD
Unobligated Gen. Fund Balance $ 8,713,772 (1)
lA Biennium receipts 52,730,294 (2)
61,444,066
From Appropriations $ 109,011,197
Deduct unconstitutional items (Oster decision) 6,048,500
For 1 yr. divide by 2 $102,962,697 (3) 51,481,349
SURPLUS 6-30-66 $ 9,962,717
BIENNIUM Unobligated Gen. Fund Balance Projected receipts $ 8,713,772 (1) 104,046,406 (2)
112,760,178 (2)
1965 Appropriations above 102,962,697
SURPLUS 6-30-67 $ 9,797,481
*563(1) State Auditor's office.
(2) State Treasurer's Report to Board of Equalization, . doubled for biennium, except for a non-recurring item of $1,414,182 included in fiscal 1966 only.
(3) Stipulated and undisputed.
The total receipts are the Board's official figures and, as stated in the opinion, are 1.3 million less than reasonably expected receipts. Current official incomplete reports confirm the receipts to be higher. They are not repeated as the surplus stated is not disputed.
Nor do the totals show any reversion or transfer of surplus from the State Cement Plant. Such transfers were made to the general fund in fiscal 1963, 1964 and 1965 in amounts of $4,414,-758.24, $2,900,000 and $2,500,000 respectively. The Governor's Budget for 1966 and 1967 listed transfers to be made of $2,400,000 for each year. The legislature made no transfer during the 1965 Session though the December 31, 1964 Auditor's Report showed a Cement Plant surplus of $14,081,326.85, including five million in cash accumulated in a reserve fund. See minutes of Legislative Research Council Subcommittee on Cement Plant Reserves October 18, 1965. No matter how you view it, these are funds belonging to the people of the state.
. Albuquerque Bus Co. v. Everly, 53 N.M. 460, 211 P.2d 127; State ex rel. Carson v. Kozer, 108 Or. 550, 217 P. 827; Wood v. Byrne, 60 N.D. 1, 232 N.W. 303; Ford v. Mitchell, 103 Mont. 99, 61 P.2d 815; Laam v. McLaren, 28 Cal.App. 632, 153 P. 985; State ex rel. Howell v. Superior Court, 97 Wash. 569, 166 P. 1126; Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775; Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248.
. The State Treasurer’s balance in the general fund June 30, 1965 was $12,729,549.
. These are all recorded in the permanent books as part of the Board’s official records and itemized in detail as to income, etc. which “shall at all times be open to public inspection”. SDC 1960 Supp. 57.0420.
. It is conceded the Governor’s messages may be judicially noticed. In this opinion, the official reports and records are cited by chapter and verse in accord with the majority opinion. Petition of Oleson, 68 S.D. 435, 3 N.W.2d 880, and State ex rel. Cooperative Wool Growers v. Bushfield, 69 S.D. 172, 8 N.W.2d 1. Taking judicial notice of general conditions and such facts as the court did in those cases, it appears the surplus is to be of such an amount that many institutions, departments of government, organizations, associations, legislators and other interested citizens and public officials are engaged in public discussion and making plans in the coming session to dispose of and participate in it. That we can be oblivious of this general knowledge and yet conclude the law necessary for present governmental operation is difficult for me to understand.
. Nor does the majority. Here it may be well to compare two of our constitutional provisions. Both of them lay down fundamental fiscal policies to prevent unlimited spending and resulting taxes by the legislature. Art. XIII, § 2, of the Constitution places a constitutional debt limit of $100,000; this prevents creation of a higher debt and thus higher taxes to pay the debt and interest, unless the people vote approval of it. By § 1 of Art. Ill the people reserve the right to vote approval or rejection of a law not necessary for the support of the government and thus prevent a higher tax than necessary or the build up of a state surplus from unnecessary taxes. This is but the philosophy and thinking of scholars of government and economics — private persons may need to build up reserves for the future, but a government need not do so as it has the power to tax for its needs and providing for surpluses merely encourages and provides a fertile field for spending by pressure groups. This is the very contingency the Constitution sought to guard against. See Note 4.
. While in the practice, it was my thought to add a postscript to all correspondence as to where a citizen could place reliance for protection of his rights. As doubts of the stability of the executive and legislative branches to fill that sphere rose and fell, the courts remained the haven, anchor and bulwark. In view of the decisions in the two other cases referred to, approving expanded and heretofore unasserted legislative action and power and this present decision, it seems appropriate to revive and add that postscript here: “Who protects the public?”