Mackey v. Reeves

• Decision Date: 25 April 1921
• Docket Number: No. 4635.,4635.
• Citation: 44 S.D. 153,182 N.W. 700
• Parties: MACKEY v. REEVES, State Auditor.
• Court: South Dakota Supreme Court

44 S.D. 153

182 N.W. 700

MACKEY

v.REEVES, State Auditor.

No. 4635.

Supreme Court of South Dakota.

April 25, 1921.

Original proceedings in mandamus by G. E. Mackey to compel J. D. Reeves, as State Auditor, to issue a warrant on the State Treasurer. Peremptory writ granted.Sherwood & Sherwood, of Clark, for plaintiff.

Chas. E. De Land, of Pierre, for defendant.

McCOY, J.

This is an original proceeding in mandamus to compel defendant, as state auditor, to issue a warrant on the state treasurer by virtue of the provisions of chapter 39, Laws 1919. This is the second time this proceeding has been before this court. Mackey v. Reeves, 42 S. D. 340, 175 N. W. 359. On the former hearing a demurrer was interposed to sufficiency of the application for the writ. The demurrer was sustained, and rehearing denied. Motion was then made to amend the application, which was granted, and the matter is now here upon the amended application, answer, and evidence submitted. The former decision in effect held that there was no showing that the injuries of plaintiff, for which the legislative act in question sought to compensate him were received while in the discharge of his duties in the militia service of this state, and that without such a showing, such an appropriation could not be held to have been made for a public purpose.

[1] In the former opinion it was also held that an appropriation of public money, to be constitutional, must be for some use or object which directly or indirectly, in some degree or manner, will materially aid in the proper functioning of some governmental agency, and in so doing will serve a public purpose. In State ex rel. Morris v. Handlin, 38 S. D. 550, 162 N. W. 379, this court held that:

“Any appropriations made in furtherance of and for the purpose of encouraging the organization and maintenance of a more effective militia is most certainly a public and beneficial purpose within the purview of the purposes for which our Constitution was created. Services rendered by a state militia, whether on command of the Governor or President, are rendered for the benefit of the public, and not for the benefit of any particular individual. We are of the view, therefore, that the provisions of section 1, art. 13, prohibiting donations to individuals, associations, or corporations, was never intended to apply to appropriations made for the purposes of encouraging more efficient military training and enlistments in the militia, or for the payment of services such as have been rendered by the regiment in question. The provisions of this section of our Constitution prohibit ...