(dissenting).
I respectfully dissent.
The sole question for our determination is the right of the petitioner to refer the law to a vote of the electors pursuant to Article III, § 1 of our State Constitution. That portion of the section pertinent to this inquiry provides:
The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives, except that the people expressly reserve to themselves the right to propose measures, which measures the Legislature shall enact and submit to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions .
As this Court noted in Hodges v. Snyder, 43 S.D. 166, 178 N.W. 575 (1920), there are two classes of laws that are not subject to the referendum: “First, such laws as are declared by the act itself to be necessary for the immediate preservation of the public peace, health, or safety of the state; and, second, such laws as are necessary for the support of the government and its existing public institutions.” (Emphasis added). Id. at 174, 175, 178 N.W. at 577. As the majority opinion correctly stated, we need only concern ourselves with the state of emergency declared to exist under the second excepted class. Whether the Act could have been declared an emergency under the police powers of this state we need not here determine, for the Act itself expressly states that the imposition of such tax is “necessary for the support of state government and its existing institutions.” S.B. 225, Section 24.
The question of emergency is one for the courts. State ex rel. Richards v. Whisman, *76236 S.D. 260, 154 N.W. 707 (1915); Johnson v. Jones, 48 S.D. 260, 204 N.W. 15 (1925). While this Court must resolve any doubt in favor of the legislature’s declaration of emergency, the mere fact that a statute embodies language “for the support of state government and its existing institutions” will not preclude judicial review of the question whether the act is, in fact, “necessary” for such support. State ex rel. Kornmann v. Larson, 81 S.D. 540, 138 N.W.2d 1 (1965) and State ex rel. Wegner v. Pyle, 55 S.D. 269, 226 N.W. 280 (1929).
The test set forth by this Court in determining whether a law is necessary 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?” State ex rel. Wegner v. Pyle, supra at 280, 226 N.W. at 284. According to Wegner, “If the actual practical support of the government is unaffected by the delay or possible final defeat of the measure, then it cannot be said to be necessary so as to prevent its reference to a vote.” Id. at 277, 226 N.W. at 283. Notwithstanding that the scope of our review is limited to what appears upon the face of the act and facts within the Court’s judicial knowledge, State ex rel. Shade v. Coyne, 58 S.D. 493, 237 N.W. 733 (1931), it is clear that South Dakota will not derive one dollar of income for its general support through implementation of this Act, and therefore, the actual practical support of state government will be unaffected by the delay or possible final defeat of the measure.
The legislature has no right to disregard Article III, § 1 or to nullify it by attaching an emergency clause to a law that in fact is not an emergency. Johnson v. Jones, supra. To shield this measure under the guise of emergency legislation is to in effect usurp the power vested in the people to ratify or repudiate it as they see fit. A precious constitutional right is being stripped from the people. The majority opinion embraces a warped extension of Article III, § 1.
The Act complained of imposes upon the people of this state an additional one percent sales tax to raise revenue for the sole purpose of providing for the acquisition, operation, maintenance and improvement of public rail lines, and the acquisition and disposition of any and all rights-of-way, land, facilities, fixtures and appurtenant structures, services and equipment, determined by the division of railroads to be necessary or appropriate. Ninety-eight percent (98%) of the revenue derived from the increase in taxes shall be credited to the railroad authority fund; two percent (2%) shall be credited to the general fund. The Act, by specifically earmarking that ninety-eight percent of the revenue is to be contained in the railroad authority fund and not the general fund, negates the concept that such tax is necessary for the support of state government in meeting its impending obligations. In addition, the state concedes that the two percent that is to be diverted into the general fund is to cover administrative costs incurred in its implementation. The net gain for the general support of South Dakota is zero dollars. Thus, it is apparent that the emergency declared to exist is an artificial label and obviously not for the support of the state government and its existing institutions as previously defined by this Court. “The word ‘support’ as used in the constitutional provision under consideration [Article III, § 1] does not extend beyond the furnishing of funds or revenue to meet the needs and requirements of the state.” Engelcke v. Farmers’ State Bank of Canistota, 61 S.D. 92, 99, 246 N.W. 288, 291 (1932). In other words, the word “support” does not encompass revenue measures to meet new and additional needs and requirements of the state created by a law which places the state into an altogether new, bold economic venture. Having declared that such Act is necessary for the support of state government and its existing institutions, the state cannot now rely on the police power for justifying such action, claiming that it is necessary for the “economic health” of the state. Engelcke v. Farmers’ State Bank of Canistota, supra. The actual practical support of state government as we have come to know it will not cease or be affected by the delay or *763possible defeat of the measure in a referendum. The state is not, and never has been, actively engaged in the activities encompassed by this legislation. Thus, this Act is not necessary for the support of the state. It is one thing to regulate a railroad; it is another to plunge into its actual operation and acquisition. If this Court were to follow the reasoning of the state’s position, the Public Utilities Commission, which is a regulatory body over the public utilities of this state, could acquire the transmission lines and the capital improvements of any utility of this state. The majority opinion establishes a dangerous precedent.
This Court has held in the past that emergencies are restricted to appropriation acts necessary for the support of state government and its existing institutions, which thrusts a heavy burden upon those asserting that the people of this state should be prevented and barred from passing on the validity of the legislation. Johnson v. Jones, supra. I fail to see where privately owned and operated railroads have ever achieved the status of an existing state public institution. Article XVII, § 15 * declares railroads public highways for the purpose of regulation and controlling the rates of charges for freight, not for the purpose of securing railroad right-of-way, either before or after abandonment.
Neither does the division of railroads created within the Department of Transportation pursuant to S.L.1975, ch. 26, § 1 (SDCL 1-44-17,18) comport with that of an existing institution for purposes of Article III, § 1. The majority opinion relies heavily on Hoppe v. Meyers, 58 Wash.2d 320, 363 P.2d 121 (1961), in construing the division of railroads as an existing institution, designed to effectuate the implementation of this emergency legislation. According to Hoppe, an existing institution includes: “[a]ll branches and departments created by law and exercising any activity or function defined by the legislature and existing at the time the amendment was adopted, or which, if newly created by the legislature, have not been rejected by resort to referendum.” Id. at 326-327, 363 P.2d at 125. While I would concede that the division of railroads was in existence at the time of S.B. 225’s adoption, it never existed in the capacity contemplated by the Act complained of. Since the time of its inception, the division of railroads has never been empowered to function in the acquisition and ownership of property for the purpose of engaging in directly or indirectly, the private business of maintaining a railroad. To the contrary, its function was merely that of conducting research on basic railroad problems; to plan and assist in the development and coordination of rail transportation; and to develop and maintain a federal-state relationship of programs relating to railroads. SDCL 1-44-18. From its birth, its functions have militated against a state of emergency or that of government ownership. The state cannot look to the division of railroads as an existing institution, whose internal makeup never has been that which this Act now envisions it to be. Furthermore, the Act creates a railroad board consisting of seven members, which must approve the division of railroad’s actions in the matters of “operation, management, finance, marketing, and development of rail service over all properties and facilities acquired, leased, or controlled by the state.” S.B. 225, Section 9. The railroad board plays an integral role in this legislative scheme: It is a newly created entity, separate and apart from the division of railroads. The record reveals, and the argument of the state supports, the judicially noted fact that the Act creating the South Dakota Railroad Authority was endorsed by the Secretary of State on the same evening *764and within a short period of time prior to the endorsement of the “railroad package.” The record fails to demonstrate that the railroad board was implemented by appointment and installation of the seven members, or with the advice and consent of the Senate prior to the passage of S.B. 255. Thus, at the time of the Act’s endorsement, there was no existing institution to be supported, for the newly-created railroad board was neither in force nor in effect. See Asplund v. Marjohn Corp., 66 N.J.Super. 255, 168 A.2d 844 (1961); State v. State Toll Bridge Authority, 210 Ga. 690, 82 S.E.2d 626 (1954); and In re Harrington’s Estate, 151 Neb. 81, 36 N.W.2d 577 (1949). Even under Hoppe, it cannot be considered an existing institution because to establish it as such, it must “have not been rejected by resort to referendum.”
Finally, the majority opinion alludes to the fact that this state has established a program directing the Transportation Commission to take action in improving branch railroad service within the state as evidenced by the passage of Chapter 342, S.L. 1978 (SDCL 49-17-22 through 49-17-29). While this legislation authorizes state aid to railroad construction and maintenance, it does not, however, embrace the concept of statewide, total participation and ownership in such an undertaking as the majority opinion implies. On the contrary, SDCL 49-17-25 expressly states:
Agreements entered into requiring expenditure of state funds shall also require the expenditure of funds by rail users benefiting from the proposed improvements and the expenditure of funds or the provision of services, by the railroad corporation party to such agreement. The ratio of participation by state rail users and railroad corporations shall be determined by the department of transportation for each branch line or branch line segment to be upgraded.
Furthermore, the reference made to SDCL 49-17-19, which authorizes the Transportation Commission to “contract for the acquisition, construction, improvement, maintenance or operation of railroads or railroad facilities” is severely limited in its present-day application. The repeal of Chapter 49-18, Railroad Indebtedness; Chapter 49-19, Location and Construction of Railroads; and Chapter 49-20, Railroad Right of Way set the stage for granting the Transportation Commission intervention in these matters which have traditionally been that of the private railroad corporations. These repeals, however, do not go into effect until July 1, 1981. Therefore, the Commission’s powers as delineated in SDCL 49-17-19 are in reality a legal fiction.
This purported emergency legislation does not fall within the exception; the majority opinion, by sanctioning such label, is effectively denying the people of this state of their reserved right to ratify or repudiate this legislation as they deem fit. The power conferred upon the legislature is a grant of power limited and defined by terms of the grant. The power granted to the legislature is restricted and limited by the right of the people to ultimately adopt or reject any legislative enactment, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, or the support of the state government and its existing institutions. The court noted in State ex rel. Wegner v. Pyle, supra, that: “This exception constitutes an additional grant of power to the Legislature, and, if any part of the grant is to be strictly construed, it is this exception.” 55 S.D. at 272, 226 N.W. at 281. This exception, to the contrary, has now, through a strained reading, been given a liberal construction by the majority opinion.
We have before us the product of early-morning hour, fevered legislation which has been ingeniously fostered and guided through the legislature by the executive branch of government. Having been aggrieved by the actions of the legislative and executive branches of government, the petitioner has every right to come to the judicial branch of government for redress. No rancor should be attributed to this petitioner. As a taxpayer she is, in law, a proper party to this action. State ex rel. Schilling v. Menzie, 17 S.D. 535, 97 N.W. 745 (1903). The Act does not finance rising *765government expenditures caused by inflation,, nor does it increase state aid to local governments. It was not intended to; rather, its purpose is to place South Dakota as a forerunner in the state-owned railroad business. It is patently clear that the Act is not, in fact, necessary for the general support of state government and its existing institutions. This state has never been engaged in such an enterprise. State government operations as we know them today will not grind to a halt if the tracks are subsequently removed. Were the opposite true, government would long ago have ceased as hundreds and thousands of miles of railroad track in South Dakota have fallen into nonuse and disrepair, as the majority opinion so nostalgically notes.
Historically, through legislation and decisions of this Court, all substantial schemes of internal development or improvement of economic facilities have been recognized as nonemergency matters and the subject of constitutional amendments approved by the people of this state. See State ex rel. Korn-mann, supra, (dissenting opinion). The Court in Wegner viewed the distribution of the burden of taxation as an economic question which the people intended to' keep within their control so far as possible without slowing the wheels of government. The right of the people to adopt or reject any legislative enactment should not be unconstitutionally interfered with by any branch of government. To deny the people the right to vote on this major economic issue when they plainly have the right to refer this law by constitutional safeguards reserved unto them, is contrary to our State Constitution, history of this state, precedent of this Court, and is violative of the rights of a free people. As the Court so aptly stated in Wegner:
There can be no power in the Legislature to conclude by its action a reserved right belonging to the people. To so hold would be to sanction a usurpation of power and make the Legislature supreme. . If it is necessary, the voters can adopt it.
55 S.D. at 276, 277, 226 N.W. at 283.
Therefore, as petitioner has no plain, speedy or adequate remedy at law, I would grant both the writ of prohibition, prohibiting the Secretary of Revenue from imposing the one percent sales tax, and prohibiting the Director of Railroads from acquiring railroad property; and I would grant the writ of mandamus to compel the Secretary of State to file a referendum petition.
Article XVII, § 15 provides:
Railways and rail companies declared public highways and common carriers — Regulation of rates. Railways heretofore constructed or that may hereafter be constructed, in this state are hereby declared public highways, and all railroad and transportation companies are de-dared to be common carriers and subject to legislative control; arid the Legislature shall have power to enact laws regulating and controlling the rates of charges for the transportation of passengers and freight as such common carriers from one point to another in this state.