State ex rel. Kornmann v. Larson

• Decision Date: 19 November 1965
• Docket Number: No. 10267,10267
• Citation: 138 N.W.2d 1,81 S.D. 540
• Parties: STATE ex rel. Charles KORNMANN, Plaintiff, v. Alma LARSON, Secretary of State, Defendant.
• Court: South Dakota Supreme Court

Page 1

138 N.W.2d 1

81 S.D. 540

STATE ex rel. Charles KORNMANN, Plaintiff, v. Alma LARSON, Secretary of State, Defendant.

No. 10267.

Supreme Court of South Dakota.

Nov. 19, 1965.

Vincent J. Protsch, Howard, Charles Kornmann, Aberdeen, for plaintiff.

Frank L. Farrar, Atty. Gen., Pierre, for defendant.

ROBERTS, Presiding Judge.

Charles Kornmann, as relator, filed his petition in this court asking a writ of mandamus to require Alma Larson, as Secretary of State, to accept and file a petition for the referendum of Chapter 296, Laws 1965. Relator claims that the imposition under this statute of an excise tax upon certain services and professions is not necessary for the support of the state government and its existing institutions within the meaning of the constitution excepting certain legislative enactments from the power of referral and is therefore subject to the referendum.

Section 1 of the act under consideration imposes 'a tax at the same rate as that imposed upon sales of tangible personal property in this state upon the gross receipts of any person from the engaging or continuing in the practice of any profession or of any business in which the service rendered is of a professional, technical or scientific nature and is paid for on a fee basis, or by a consideration in the nature of a retainer'. Section 2 imposes a tax at the same rate 'upon the gross receipts of any person from engaging or continuing in any of the following businesses or services in this state: Abstractors; accountants; architects; barbers; beauty shops; blacksmith shops; car washing; dry cleaning; dyeing; exterminators; garage and service stations; garment alteration, cleaning and pressing; janitorial services; laundry and laundromats; linen and towel supply; photography; photo developing and enlarging; tire recapping; welding and all repair services.'

The amendment to Section 1, Article III, of the State Constitution in 1898 reserving to the people the power of referendum excepts therefrom '* * * 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.' Section 22 of the same article relating to emergency acts becoming effective upon passage and approval is not applicable unless an act is within the classes of laws excepted from the referendum. State ex rel. Richards v. Whisman, 36 S.D. 260, 154 N.W. 707, L.R.A.1917B, 1, writ of error dismissed, 241 U.S. 643, 36 S.Ct. 449, 60 L.Ed. 1218.

The word 'immediate' qualifies only the words 'preservation of the public peace, health or safety.' It then follows as pointed out in Hodges v. Snyder, 43 S.D. 166, 178 N.W. 575, that the 'exception found in section 1 of article 3, names 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. A law may be necessary for the preservation of the public peace, health, or safety, and still be subject to the referendum, unless the Legislature declares it necessary for the immediate preservation of the public peace, health, or safety. * * * But a law that is necessary for the support of the state government or its existing institutions is not subject to the referendum in any event.'

In its decisions, this court has held that a legislative declaration of an emergency is a nullity where the act could not by any fair inference be said to be in the exercise of the police power nor in support of the state government and its existing institutions. State ex rel. Loe v. Davis, 41 S.D. 327, 170 N.W. 519; Warwick v. Bliss, 45 S.D. 388, 187 N.W. 715; State ex rel. Kleppe v. Steensland, 46 S.D. 342, 192 N.W. 749; Johnson v. Jones, 48 S.D. 260, 204 N.W. 15; State ex rel. Driscoll v. Smith, 49 S.D. 106, 206 N.W. 233; Engelcke v. Farmers' State Bank of Canistota, 61 S.D. 92, 246 N.W. 288; State ex rel. Parker v. Youngquist, 69 S.D. 423, 11 N.W.2d 84; In re Opinion of the Judges, 58 S.D. 72, 234 N.W. 671. Chapter 296, Laws 1965, is a tax measure and the additional revenue from the tax goes into the general fund of the state. It is obviously a law for the support of the state government. The question then is whether this law is necessary for that purpose. As this court said in State ex rel. Wegner v. Pyle, 55 S.D. 269, 226 N.W. 280, the effect of the provisions excepting from the referendum laws 'necessary for the support of the state government and its existing public institutions' is not to except from the referendum all laws for such support, but only those as are necessary for that support. This court in determining whether a law is necessary for the support of the state government and its existing institutions will consider the effect upon such support of delay incident to referral and the consequences if the law is defeated. If the efficient operation of the state government would be unaffected by the delay or possible defeat, the law in such instance cannot be said to be necessary so as to prevent a referral.

While this court must give to the action of the legislature every favorable presumption, the mere fact that a statute is for the support of the state government will not preclude judicial review of the question whether the act is 'necessar' for such support. This court, however, will not enter upon an ascertainment of facts through formal proof by sworn witnesses and authenticated documents to determine necessity of a statute for the support of the state government. The scope of the 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; State ex rel. Botkin v. Morrison, 61 S.D. 344, 249 N.W. 563; City of Pierre v. Siewert, 63 S.D. 485, 261 N.W. 42; see also annotation in 100 A.L.R.2d 304.

The Constitution of the State of Washington, like ours, excepts from referendum provisions '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.' It is the settled rule in that state that in determining the necessity for an enactment for the support of the state government the court as stated in State ex rel. Pennock v. Reeves, 27 Wash.2d 739, 179 P.2d 961, 'will enter upon no inquiry as to the facts, but must consider the question from what appears upon the face of the act, aided by the court's judicial knowledge'. In State ex rel. Hoppe v. Meyers, 58 Wash.2d 320, 363 P.2d 121, 100 A.L.R.2d 304, a mandamus proceeding to compel submission of a portion of an act increasing a motor fuel and use fuel tax to referendum the court adhering to prior holdings stated:

'It is therefore clear that the law, a portion of which the relator desires to have submitted to referendum, is a law directed to the support of an existing institution of the state government. But, as we have already noted, the relator contends that the law is not necessary, because it does not direct nor require a refunding of the outstanding bonds. Our inquiry into this question must be limited to an examination of the act and to matters of which we can take judicial notice, bearing in mind that it must be presumed that facts existed which justified the legislative determination that the law was necessary.'

It was held in State ex rel. Wegner v. Pyle, supra, that a statute levying a registry tax on automobiles and providing that the levy against real and personal property be reduced in proportion to the amount of taxes collected under the act would not increase the revenue already provided for in existing statutes and was therefore subject to the referendum. In State ex rel. Botkin v. Morrison, supra, wherein the statutes involved also contained a replacement provision, we disapproved of the declaration in the Pyle case to the effect that such provision in a revenue measure establishes the fact that the act merely provides for a shift of the tax burden and that the support of the state government is unaffected. This court observed that it must be presumed that the legislature availed itself of the opportunity to determine the facts and that necessity may not have consisted in securing additional revenue, but in maintaining existing amounts and because of the then economic situation preventing a shriveling of present sources of revenue.

A statute requiring the transfer of ten percent of the gross receipts of eighteen boards and commissions to the state's general fund was held in State ex rel. Parker v. Youngquist, supra, not to be excepted from the referendum because it neither levied nor increased any tax and appropriated no money, but from what appeared upon the face of the statute merely effected a diversion of taxes from special purposes to the general fund, not from necessity, but because it was equitable to do so. Insofar as the holding in that case is concerned it does not sustain contention of relator. In the present case the statute levies an additional tax and does not merely provide for an equitable diversion of revenue.

Judicial notice is the taking cognizance by courts of those facts 'capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy.' McCormick, Evidence, § 325. 'Most matters which the court may notice fall into one of two classes, those which come to the knowledge of men generally in the course of the ordinary experience of life, and are therefore in the mind of the trier, or those which are generally accepted by mankind as true and are capable of ready demonstration by means commonly recognized as authoritative.' 31 C.J.S. Evidence § 7. The doctrine does not require actual present knowledge on the part of the court. It may...