State Ex Rel. Oster v. Jorgenson

ROBERTS, P. J., Presiding Judge

(dissenting in part).

Plaintiff challenges the validity of items in the general appropriations act, Ch. 277, Laws 1965, on the grounds that the same were not enacted pursuant to the following provisions in Article XII of the Constitution:

"§ 1. No money shall be paid out of the treasury except upon appropriation by law and on warrant drawn by the proper officer.
"§ 2. The general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for common schools. All other *463appropriations shall be made by separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the legislature."

Manifestly, no money under these provisions may be paid out of the state treasury or warrants drawn except in pursuance of a valid appropriation made by law. State ex rel. Mills v. Wilder, 73 S.D. 330, 42 N.W.2d 891. It is to be observed that Section 2 makes a distinction between appropriations which may be embraced within the general appropriation bill and enacted by a majority vote and "all other appropriations" which require for enactment a two-thirds vote of all members of each house. Barnsdall Refining Corp. v. Welsh, 64 S.D. 647, 269 N.W. 853. Constitutional amendments (§§ 9, 10, 14 and Art. XIII) authorizing special expenditures contain like provisions for a two-thirds vote of the members elect of each house of the legislature. State ex rel. Mills v. Wilder, supra.

The precise question before this court is the determination of what, if any, of the challenged items included in the general appropriation act for the biennium ending June 30, 1967, are without the constitutionally specified classes. This is a judicial, question and while there is a presumption of correctness of the-legislative determination as to the nature of the items in the act it is not conclusive.

The language of section 2 is clear in its meaning. The first inquiry in determining the authority of the legislature to include an item in a general appropriation act is whether the item is within these specified classes, namely, (1) expenses of the executive, legislative and judicial departments of the state, (2) expenses of state institutions, (3) payment of interest on the public debt, or (4) an appropriation for common schools. If an item is not within these classifications, it cannot be included within a general appropriation bill. If the item falls within classes (1) or (2) referred to, the inquiry then is whether the money appropriated will be available only for "ordinary" or "current", as contrasted to ¡special or extraordinary, expenses. I concur in the majority opinion as to the meaning of the terms "ordinary" and "current" to effect the constitutional purpose.

*464The general appropriation act contains an item for "State Aid to Equalize the Tax Base of Counties and School Districts Having School and Endowment Lands". Section 4, Chapter 277, Laws 1965. In the interval between 1941 and 1963 the legislature at each regular session appropriated money by special acts to equalize the tax base of counties and school districts having school and endowment lands within their boundaries. This long legislative construction of the requirements of section 2 was correct. The legislature is subject to the limitations of the constitution and the enactment of Chapter 256, Laws 1965, providing in advance a method for distribution of funds that may be appropriated for the purpose of equalizing taxation in counties and school districts having within their boundaries state owned lands does not change the nature or object of an appropriation for that purpose. The fact that an unconstitutional practice may appear unimportant is no reason for permitting it. Courts must be vigilant in preventing isuch practice getting a first footing and becoming a precedent for other encroachments. The item in question is not alone "for common schools", but for "counties and school districts" and is not for the support or germane to or directly connected with the functions of the executive or other departments of the state government or its public institutions. The appropriation does not, therefore, come within a class specified in section 2. The majority seemingly have accepted the argument that recurrence of the appropriation for more than twenty years brings it within the term "ordinary expenses". There has been a failure to reckon first with the actual object of the appropriation. It is not within class (1) above referred to and cannot by recurrence become an appropriation for "ordinary" expenses.

For reasons stated the relief sought by plaintiff should in my opinion include the foregoing item. I concur otherwise in the result.