(concurring in part and dissenting in part).
Art. XII, § 2 of our Constitution approved originally at the Constitutional Election in 1889 then read and now reads as follows:
*465"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 appropriations 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."
This was the provision recommended by the committee at the Constitutional Convention July 18, 1889 and had its origin in § 23 of the Constitution of 1883. Constitutional Debates, Vol. 1, Page 18; Vol. 2, Pages 126 and 143. "This section was designed to safeguard public revenues against hasty and ill-advised legislation and to prevent the evils resulting from combinations." State ex rel. Jensen v. Kelly, 65 S.D. 345, 352, 274 N.W. 319, 323.
"Whether our forefathers foresaw the power of pressure groups may be questioned; that they saw the need to protect themselves against the enthusiasms of a majority of the legislature will not be questioned. Hence the provision of § 2, Art. XII * * * A contemporary view expresses the object of this provision in words as follows, 'This was doubtless regarded by the framers: of the constitution as an adequate guaranty against an unwise or imprudent use of the public funds, — a rule sufficiently flexible to meet emergencies, yet safe and trustworthy, because resting in the conscience and enlightened judgment of so large a proportion of the people's immediate representatives.' In re Limitation of Taxation, 3 S.D. 456, 54 N.W. 417, 419." State ex rel. Mills v. Wilder, 73 S.D. 330, 337, 42 N.W.2d 891, 895.
That this section of the Constitution requiring a two-thirds vote was adopted with knowledge of its breadth and meaning is shown by a reading of the Constitutional Debates and especially the attempt made to change the two-thirds requirement to that of a bare majority. This attempt was twice defeated, once by a vote of 51 to 16. Constitutional Debates, Vol. 1, 441. Ref*466erences to these debates are worthy for as was said in State ex rel. Mills v. Wilder, supra,
"A 'recurrence to fundamental principles', § 27, Art. VI, const., seems appropriate. To bend our organic law to the popular will by astute construction is not our function. Our office is to discover and declare the meaning and intention of those who framed and adopted our constitution."
That background shows the merit of the phrase in State ex rel. Payne v. Reeves, 44 S.D. 567, 587, 184 N.W. 993, 996,
"Constitutional provisions are presumed to have been more carefully and deliberately framed than is the case with statutes * *
It is not a pleasant duty to examine questions involving the constitutionality of acts of the legislature. The result may be such as necessarily compels a court to declare the acts of a co-ordinate branch of the government of no effect, and the reported cases show with what reluctance courts are compelled to conclusions involving such grave and delicate consequences. Yet a court can no more avoid this than any other duty. So much was said by Kingman, C. J., in Graham v. Horton, 6 Kan. 343 (2nd Ed. 209). Our duty, therefore, is a responsibility which, as with other departments, we bear with equal fidelity to the people of our state. It is with that frame of mind that this duty is assumed.
We are not here dealing with the power and authority of the legislature to deal with the subject matter as was involved in State ex rel. Morris v. Handlin, 38 S.D. 550, 162 N.W. 379, where the court said: "The sole and only question for determination is the constitutionality of the said appropriation." That appropriation (Ch. 51, Laws 1917) was passed by a two-thirds vote of the legislature. What we are dealing with is a limitation of the power of the legislature to act or a procedural requirement to passage of a bill.
I am in agreement with the majority opinion insofar as it excludes new construction or new acquisitions of property from *467ordinary expenses of the executive, legislative and judicial departments of the state, or current expenses of state institutions. Without commenting on the terms ordinary expenses or current expenses used in constitutions or statutes hereafter construed, the following were held either not current or ordinary or either: Erection of county buildings, a courthouse, city hall, school or county jail, or purchase of a city hall site. State ex rel. Reed v. Marion County Com'rs, 21 Kan. 419 (2nd Ed. p. 308); Thompson v. Mayo, 135 Ark. 143, 204 S.W. 747; State ex rel. City of Republic v. Harvey, 108 Wash. 48, 182 P. 931; City of South Bend v. Reynolds, 155 Ind. 70, 57 N.E. 706, 49 L.R.A. 795; Sheldon v. Purdy, 17 Wash. 135, 49 P. 228; Babcock v. Goodrich, 47 Cal. 488; Niles Bryant School of Piano Tuning v. Bailey, 161 Mich. 193, 126 N.W. 116. I also agree with the other items mentioned in the opinion as improperly included in the General Appropriation Bill for the reasons stated.
One of the challenged items in the General Appropriation Bill is "State Aid to Equalize the Tax Base of Counties and School Districts Having School and Endowment Lands — $900,000". This Bill (H.B. 615), typical of some other items, was introduced as a separate special appropriation, as it had been for prior sessions. Having failed to receive a two-thirds majority in the Senate, its President declared the bill lost. On reconsideration, it was amended striking out the $1,000,000 appropriated therein, and with other minor amendments then passed by the legislature. It is now Ch. 256, Laws of 1965. About that time, the $900,000 item, with other items so deleted from other bills, were added to the S.B. 251, the bill containing general appropriations and now Ch. 277, Laws of 1965. Ch. 256, supra, provides a formula for computing taxes on school and endowment lands and payment to the county treasurers of the amounts therein set out, to be distributed by the treasurer partly to counties and partly to school districts including high schools. The formula and theory are isuch no separation could have been contemplated. We are not told by the majority opinion the clause of § 2, Art. XII which permits this to be included in the General Appropriation Bill.
*468It cannot be the "common schools" phrase. One has but to be acquainted with South Dakota history or read its historical and legal publications to come to the conclusion that phrase in 1889 meant and now means the first eight grades. It was used in The Enabling Act, § 10 and § 13 where sections 16 and 36 of every township or their proceeds were granted to the state for support of the "common schools". Any other construction would divert this money from the support of these common schools, contrary to the custom of over 75 years. The phrase is used to distinguish it in § 11 from "public schools and the various state institutions for which the lands have been granted" and which are set out by acres in § 17 of that Act. Early session laws and our codes are replete with definitions and examples of this distinction between common and other schools. Section 7440, 1919 Code and SDC 15.2301 define common school districts; § 7517, 1919 Code permitted one who completed work of the eighth grade and who held a common school diploma to continue his work in a high school; § 7569 permitted consolidation of two or more common school districts. See comment thereon in Hodges v. Snyder, 43 S.D. 166, 173, 178 N.W. 575. The list could be extended but the matter is set at rest in both the majority opinion of Judge Burch and Judge Campbell's history reviewing concurrence in State ex rel. Prchal v. Dailey, 57 S.D. 554, 234 N.W. 45. Aid to counties, while it may be commendable and within the power of the legislature cannot be permitted under the cloak of the common school clause.
Nor is a county a state institution; those are named and provided for in § 2, Art. XII, and even if a broader interpretation is allowed to include other institutions such as a Soldiers Home being a place or building (see State v. Struble, 19 S.D. 646, 104 N.W. 465) occupied or used by a group properly cared for by the state, it would not include counties. They are expressly mentioned in other sections of the Constitution, Art. IX and others, and their omission in this section is clear they are not within its compass. Our statutes have treated them as separate and distinct. No one has contended that this appropriation comes within the "ordinary expenses of the executive, legislative and judicial departments of the state". A county is not such a department of *469the state nor is this an ordinary expense. It is extraordinary and cannot be sustained. There was no general law providing for this appropriation when the legislature met, nor any existing law until Ch. 256 became effective July 1, 1965. That there had been special appropriations in varying amounts for some years prior thereto indicates this was an extraordinary expense: the antithesis of an ordinary expense. As authority that an appropriation bill is not general law and has a limited life, see State ex rel. Fowler v. Eggers, 33 Nev. 535, 112 P. 699. This expense then cannot be sustained in the General Appropriation Bill.
The majority opinion suggests that similar appropriations have been made since 1941; yet the record shows it and many others inserted in the 1965 General Appropriation Bill for the first time were always separate special appropriation bills and passed by a two-thirds majority. This was a continuous recognition by the legislature and other state officials of their proper status. Such actions would seem to be the "settled" and "customary" procedure and more in the nature of ordinary as defined by Black's Law Dictionary in that opinion. If ordinary expenses are those which are for "the vital affairs of government" as it states, I agree. The answer is they are neither vital nor ordinary. Most of the items in the General Appropriation Bill are within the constitutional limits of § 2, Art. XII, such as salaries, repair and maintenance of buildings, etc. as they have appeared in such prior bills. They are ordinary and current.
The present problem was not involved in In re Limitation of Taxation, 3 S.D. 456, 54 N.W. 417. The statement that "ordinary curreni expenses" subject to a two mill levy limit in § 1, Art. XI are those "which can each year be estimated with close approximation to correctness" was an opinion of the Judges in answer to the Governor's inquiry. It is of no help as a definition here. An appropriation must be for a specific purpose (§ 9, Art. XI) and the amount which may be spent is fixed exactly; it cannot be legally exceeded and it is immaterial that the estimates or requests are close or far from the appropriation. It is final.
*470The same reasoning applies to other items which were theretofore special appropriations only and are creations of the 1965 Legislature. It is persuasive to me that ordinary expenses are those generally accepted as such by law-making bodies and the public. See State ex rel. Gass v. Gordon, 266 Mo. 394, 181 S.W. 1016, Ann.Cas.1918B, 191. It is difficult for me to assent to the contention that the legislature by majority vote may create an office, agency, system, organization or program and then by a majority vote in the same session, include its expense money in a General Appropriation Bill as ordinary expense of one of the three departments. This in effect nullifies the two-thirds requirement almost completely, except for new construction, or those other few items covered by clauses similar to § 9, Art. XIII. This is not only a prediction; that it will be the result of the court's opinion is proven by the record to date. In the legislative sessions preceding 1965 the number of Special Appropriation Acts were as follows:
1953 — 132; 1955 — 126; 1957 — 134; 1959 — 125; 1961 — 138 and 1963 — 93. Excluding the acts for legislative expense and State Treasurer's bond premium, which could have been in the General Appropriation Bill as ordinary expenses, in 1965 there was one (1) Special Appropriation Act for $200. The concern over a constitutional brake or limit on legislative spending and appropriations was not left to chance or legislative fiat; nor to legislative responsibility, integrity or restraint. It was specifically, and the framers thought safely, provided for by the Constitution. In the debate W. W. Brookings stated, "It seems to me that (two-thirds vote) is an excellent provision; we want to guard the Treasury, if we want the people to vote for this Constitution. That is one of the best provisions in this Constitution". Const.Debates, Vol. 1, page 441. The merit of inserting this safeguard, rather than relying on other corrective measures is shown by the fact, even with it in the Constitution, the legislature violated it. Reading the constitutional debates convinces me the result reached was not their intention; I give the framers credit for more intelligence and foresight than to arrive at that conclusion.
Ground Water Surveys and Water Resources Commission, etc. items appear to be "works of internal improvement" and to *471require a two-thirds vote under § 16, Art. XIII. Being in the minority, discussion or elimination of other items would serve no useful purpose.
Our system of government has been called one of checks and balances. Apropos to this, the court's construction gives a free hand to the legislative department to pass practically all appropriations by a majority vote, which the people may find impossible to change. Approval of this method of spending strikes down that clause with which the Constitution has undertaken to "guard the taxpayers" quoted in the majority opinion from In re Limitation of Taxation, 3 S.D. 456, 54 N.W. 417, and by which "our forefathers foresaw * * * the need to protect themselves against the enthusiasms of a majority of the legislature," State ex rel. Mills v. Wilder, supra. The result is amendment of the Constitution without compliance with Art. XXIII. The construction formerly accepted and followed by our state for many years, if it prove too limiting, unsatisfactory or unpopular, may be easily submitted to the people for change and amendment by the legislature. That is the only body which can set in motion the machinery for such change. The people may not do so. Const. Art. XXIII. One would be naive indeed to believe the legislature would institute proceedings to limit its power.
In proceedings for a writ of prohibition, a counterpart of the writ of mandamus, the right to the remedy must be clear, Bailey v. Lawrence County, 2 S.D. 533, 51 N.W. 331. The record before us is limited and includes only the legislative acts. The purpose of some of the appropriations not appearing from the record, plaintiff has not sustained that burden. Likewise the lack of any general legislation to support or govern several of the appropriations, which defendant's brief admits is necessary, was not urged or argued by plaintiff, so that question is not presented. See as to this: State ex rel. Fowler v. Eggers, 33 Nev. 535, 112 P. 699; Leckenby v. Post Printing & Publishing Co., 65 Colo. 443, 176 P. 490 and In re Opinion of the Justices, 300 Mass. 630, 15 N.E. 813.
As to the items held unconstitutionally included in the General Appropriation Bill, and eliminated by the majority, I concur; as to others not so eliminated and indicated above, I am vjumpeilea to dissent.