Great Northern Ry. Co. v. Whitfield

• Decision Date: 16 April 1937
• Docket Number: 7890.
• Citation: Great Northern Ry. Co. v. Whitfield, 65 S.D. 173, 272 N.W. 787 (S.D. 1937)
• Parties: GREAT NORTHERN RY. CO. v. WHITFIELD, County Treasurer.
• Court: South Dakota Supreme Court

272 N.W. 787

65 S.D. 173

GREAT NORTHERN RY. CO. v. WHITFIELD, County Treasurer.

No. 7890.

Supreme Court of South Dakota

April 16, 1937

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.

Judge & Chapman, of Sioux Falls, for appellant.

Walter Conway, Atty. Gen., James Brown and Herman Bode, Asst. Attys. Gen., and Louis N. Crill, State's Atty., of Sioux Falls for respondent.

H. Van Ruschen, of Salem, amicus curiae.

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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