Cutting v. Taylor
| Decision Date | 05 April 1892 |
| Citation | 51 N.W. 949,3 S.D. 11 |
| Parties | Cutting, City Treasurer, v. Taylor, State Auditor. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Whether or not any particular territorial law, or any independent provision, survived the adoption of the state constitution, and so continues in force as the law of the state, depends upon whether or not such law or such provision is obnoxious to any rule or provision of the constitution.
2. As from the property of the state is largely derived the revenue of the state, it is within the legitimate powers of a state government to employ general means for the protection of the property, as well as the persons, of its citizens.
3. To accomplish such protection, and as a means of securing greater efficiency in the fire departments and service of the state, the legislature may lawfully offer, by general law, a compensation or reward to such fire companies as will comply with conditions therein named, designed to promote their usefulness and competency; and acceptance and compliance with such conditions constitute a sufficient consideration for an appropriation by the legislature to redeem such promise.
4. Such appropriation is not a "donation," within the meaning of section 1, art. 13, of the constitution.
5. Neither constitutions nor statutes should be so construed as to give them retroactive effect, unless such intention is clearly expressed.
6. A law, valid when passed, and regularly enacted, as then required, is not necessarily abrogated or repealed by a subsequent constitutional provision requiring the pursuance of other or different forms of legislation than those which were adequate when such law was passed.
7. The provisions of the state constitution prescribing the form and method of passing appropriation bills, refer only to future legislation, or legislation under the constitution.
8. Chapter 53, Laws 1887, constituted a lawful appropriation, as the law then was, of the amount and for the purpose therein named, and, the constitutional provisions having no retroactive force, it continues an efficient appropriation until repealed by the legislature.
Original application by Eugene Cutting, as city treasurer of Pierre Hughes county, for a writ of mandamus to compel Louis C Taylor, as state auditor, to issue certain warrants. Writ granted.
Crawford & De Land, for plaintiff. Robert Dollard, Atty. Gen., for defendant.
This is an application to this court for a writ of mandamus requiring defendant, as state auditor, to issue a warrant upon the state treasury to the petitioner, as treasurer of the city of Pierre. The statutes upon which the right to such warrant is claimed are as follows: By chapter 69, Laws 1885 the legislature of the territory of Dakota, in a general law, revising and amending the laws for the organization and control of insurance companies, provided by section 40 of said law that certain insurance companies should be required to pay into the state treasury, as taxes, 2 1/2 per cent. of the gross amount of premiums received in the territory during the preceding year. By chapter 53, Laws 1887, the said legislature further provided that the clerk of every city, town, or village in the territory having an organized fire department should annually make and file with the territorial auditor his certificate, giving certain information, in section 1, of the law, more particularly defined, as to organization, strength, and equipment of such company or companies, together with such other facts as the auditor might require. By section 2 of the law it was provided that the blanks furnished by the auditor to insurance companies for their annual reports should also contain the names of the cities, towns, and villages entitled to benefits under such act, and that every insurance company doing business in the territory should include in its annual statement the amount of all premiums received by it upon policies issued on property within the corporate limits of such city, town, or village during the year. Section 3 required the auditor on the 1st day of July thereafter to issue and deliver to the treasurer of each city, town, or village having an organized fire department entitled to the benefits of this act his warrant upon the treasurer for an amount equal to 2 per cent. of the premiums received upon policies issued on property in such city, town, or village, and further providing for the disposition and distribution of the money when collected on such warrant. Section 4 defined the qualifications and conditions of a fire department to entitle the city, town, or village within which it was located to the benefits of the law. Chapter 105, Laws of 1890, declared all territorial laws in force at the date of the state's admission, and not repugnant to or inconsistent with the constitution, to continue in force until altered, amended, or repealed. The petition alleges a full compliance with all the conditions and requirements of said chapter 53; that, as shown by said statements and reports returned to and filed with said auditor, there is now in the state treasury the sum of $205.82, to which the said city of Pierre is entitled, and for which the said auditor should draw and deliver to petitioner, as treasurer of said city, a warrant; but that said auditor refuses so to do. The issue is presented by demurrer to the petition, so that the facts are admitted.
Subsequently to the passage of the foregoing acts by the territorial legislature, and while the same were in force, the state of South Dakota was organized, with a constitution adopted by the people, which then became, and thereafter was to be, the supreme and controlling law of the state. The laws of the territory of Dakota continued in force as the laws of the new state so far as they were not repugnant to such constitution but whenever and to the extent that they were so repugnant they ceased to be law, and were superseded by the constitution. Insurance Co. v. Canter, 1 Pet. 541; Benner v. Porter, 9 How. 235; State v. Ah Jim, (Mont.) 23 P. 76. So that whether any particular territorial law or any independent provision survived the adoption of the state constitution, and so continues in force as the law of the state, depends upon whether or not such law or such provision is obnoxious to any rule, prohibition, or provision of the constitution. Against the allowance and payment of this claim it is suggested that the purpose of the law (said chapter 53) is to appropriate the money of the state to various fire companies, not in discharge of a legal liability of the state, but in recognition of a moral obligation only, and is therefore inconsistent with section 1, art. 13, of the constitution, which is as follows: "Neither the state, nor any county, township, or municipality shall loan or give its credit or make donations to or in aid of any individual, association, or corporation, except for the necessary support of the poor; nor subscribe to nor become the owner of the capital stock of any association or corporation; nor pay or become responsible for the debt or liability of any individual, association, or corporation." This language is plain and comprehensive. By it the legislature is forbidden to make donations, either to individuals, associations, or corporations, whether moved by considerations of charity or gratitude, or on account of some supposed moral obligation resting upon the people of the state. The object of the prohibition is equally plain. Without it or other equivalent restriction the legislature would have unlimited power to respond with direct appropriations of public money to any and every call, controlled only by the judgment and honesty of its individual members. The prohibition was designed not only to protect the treasury from such appropriations, but to protect legislators and the general legislation of the state from the always...
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