Appeal
from Circuit Court, Minnehaha County; Lucius J. Wall, Judge.
Action
by the Great Northern Railway Company against Fred Whitfield
Treasurer of Minnehaha County. From an order sustaining a
demurrer to the complaint, plaintiff appeals.
Affirmed.
RUDOLPH
Presiding Judge.
Following
the decision of this court in the case of Simmons v
Ericson, 54 S.D. 429, 223 N.W. 342, the Legislature of
1929 by a joint resolution submitted to the people of this
state a proposed constitutional amendment (see Laws 1929, c.
85), as follows:
"Section 2. That Section 15 of Article 8 of the
Constitution of the State of South Dakota be amended to read
as follows:
"Section 15. The Legislature shall make such provision
by general taxation and by authorizing the school
corporations to levy such additional taxes as with the income
from the permanent school fund shall secure a thorough and
efficient system of common schools throughout the state. The
Legislature is empowered to classify properties within school
districts for purposes of school taxation, and may constitute
agricultural lands a separate class. Taxes shall be uniform
on all property in the same class."
This
proposed constitutional amendment carried by a substantial
majority at the general election in 1930, and the
Constitution was thus amended. The 1931 Session of the South
Dakota Legislature, purporting to act in conformity with the
authority granted by the constitutional amendment just
referred to, enacted chapter 256, Laws 1931. This act is in
all material respects the same as chapter 102, Laws 1923,
which was invalidated by the decision in the Simmons v.
Ericson Case. Said chapter 256, including the title thereof
reads, as follows:
"An Act Entitled, An Act Classifying and Defining
Agricultural Lands and Other Real Estate for the Purpose of
School Taxation and Fixing a Maximum Levy of Eight (8) Mills
on Agricultural Lands to Which the Act Applies, and Requiring
the County Auditor to Certify the Amount of Assessed
Valuation of Agricultural Lands and Amending Section 7567 of
the South Dakota Revised Code of 1919, as Amended by Chapter
50 of the Laws of the Special Session of 1920.
"Be it enacted by the Legislature of the State of South
Dakota:
"Section 1. For the purposes of school taxation, real
property within school districts is hereby classified into
two separate classes, to-wit:
"First--Agricultural lands.
"Second--Other real estate.
"Section 2. Agricultural lands within school districts
include all real estate not platted in the city or town lots
or blocks, and not used or occupied for other than
agricultural purposes.
"Section 3. The assessor in listing and assessing real
property situated within any school district to which this
act applies shall designate opposite each description the
class to which it belongs as defined herein.
"Section 4. No agricultural lands, as herein defined,
shall in any one year, be taxed to exceed eight (8) mills on
the dollar for school purposes, exclusive of levies for
interest and sinking funds provided, however, that an
independent consolidated school district in which there is no
incorporated town shall not be included in the provisions of
this act.
"Section 5. It shall be the duty of the county auditor
to transmit to the clerk of each school district to which the
provisions of this act apply his certificate under the seal
of his office, on or before the first Tuesday in September,
which certificate shall show the number of acres of
agricultural lands within such school district and the
average assessed valuation per acre, including improvements
thereon, figured on
the basis of the assessment, as equalized by the State Tax
Commission.
"Section 6. That Section 7567 of the Revised Code of
1919, as amended by Chapter 50 of the Session Laws of 1920,
is hereby amended to read as follows:
"Section 7567. The board of education or school board,
in school districts where this act applies, shall not later
than the second Tuesday in September, or within ten days
thereafter, levy a tax for the support of the schools of the
school district, for the fiscal year next ensuing, not
exceeding in any one year twenty-five mills on the dollar of
the assessed valuation of all taxable property within the
district, provided that in a school district where there are
the two classes of real estate as herein defined, the levy
for the support of the schools within the district shall not
exceed in any one year eight (8) mills on the dollar of the
assessed valuation of agricultural lands therein; provided,
that if such levy is insufficient for the support of the
schools within the district and the levy already made on
property other than agricultural land is less than 25 mills,
the school board shall levy an additional tax not exceeding,
inclusive of what has already been levied, 25 mills on the
dollar of the assessed values on all taxable property other
than agricultural land within the district.
"The clerk of the school board shall certify the levy to
the county auditor, who is authorized and required to place
the same on the tax roll of the county, to be collected by
the county treasurer as the taxes of the county, and paid
over by him to the treasurer of the school district, of whom
he shall take a receipt in duplicate, one of which he shall
file in his office and the other he shall transmit to the
clerk of the board of education. Such receipt shall show the
proportionate amounts belonging to the several funds of the
board of such school district, apportioned by the treasurer
thereof according to the relative amounts levied by such
board for the current year.
"Section 7. The provisions of this act shall not apply
in school districts where the average assessed valuation in
any year of agricultural lands, as herein defined, is
Twenty-seven Dollars ($27.00) per acre or less.
"Section 8. If any section or part or parts of this act
are declared to be unconstitutional the remaining sections or
parts of this act shall remain in full force and effect.
"Section 9. All acts or parts of acts in conflict with
the provisions of this act are hereby repealed.
"Approved February 16, 1931."
Plaintiff
and appellant commenced this present action asserting the
invalidity of the 1931 law and alleging that it owned and
operated a line of railroad within certain independent school
districts located in Minnehaha county of this state, each of
which school districts contains within its borders an
incorporated town and in each of which said school districts
the average assessed valuation of agricultural lands exceeds
$27 per acre. Plaintiff further alleges that the taxing
authorities in the school districts mentioned in the
complaint have levied and assessed the taxes in the various
school districts under the terms of the act of 1931, herein
above set out, limiting the levy of agricultural lands
located in said school districts to the 8-mill levy provided
in the act, and levying on other lands, plaintiff's land
included, in excess of 8 mills. Plaintiff paid its taxes
under protest and has brought this action to recover that
portion of the tax which plaintiff alleges was illegal
because of the invalidity of the 1931 act. See Chicago,
R. I. & P. Ry. Co. v. Young, 60 S.D. 291, 244 N.W. 370.
From an order sustaining a demurrer to the complaint
plaintiff has appealed.
Plaintiff
first contends that the act of 1931 is invalid because of a
defective title. It is plaintiff's contention that under
the terms of this act the levy limit on lands in common
school districts is increased from the 15-mill limit provided
in section 146, chapter 138, Laws of 1931, to 25 mills. We
doubt the validity of this premise upon which the appellant
rests this contention, but, even conceding that the premise
is sound, we, nevertheless, are convinced that the contention
is without merit. Appellant argues that the increase of this
levy limit on lands located in common school districts is not
reflected in the title to the act, and hence section 21 of
article 3 of the State Constitution is violated. If the levy
limit on lands in common school districts is raised by virtue
of this 1931 act, it is accomplished through the amendment of
section 7567, Rev.Code 1919, as amended by chapter 50 of the
Special Session Laws of 1920. The amendment of this amended
section of our Code
is specifically referred to in the title of the 1931 act
(chapter 256).
The
complaint fails to disclose that appellant has any lands
located in common school districts which are affected by the
alleged levy limit increase in such districts or that a
15-mill levy has been exceeded in any common school district,
and hence appellant is not in a position to raise this
constitutional question. There is no showing that any
substantial interest of appellant is or will be affected,
even conceding that the levy limit on lands in common school
districts is increased by the provision of the act. Rowe
v. Stanley County, 52 S.D. 516, 219 N.W. 122; State
v. Urban, 60 S.D. 614, 245 N.W. 474.
Appellant
next contends that the Legislature has not properly exercised
the authority granted by the amendment of section 15 of
article 8 of the State Constitution. The gist of this
contention is to be found in a paragraph in appellant's
brief as follows:
"It may be conceded that the statement in the amendment
that the Legislature 'may' classify properties, was,
before the Legislature undertook to act under
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