Payne v. Jones

• Decision Date: 26 June 1924
• Docket Number: 5450
• Citation: 199 N.W. 472,47 S.D. 488
• Parties: STEVE PAYNE, et al., Plaintiff, v. EDWARD A. JONES, State Auditor, Defendant.
• Court: South Dakota Supreme Court

47 S.D. 488

199 N.W. 472

STEVE PAYNE, et al., Plaintiff,

v.

EDWARD A. JONES, State Auditor, Defendant. South Dakota Supreme Court Original proceeding in mandamus #5450--Motion to quash denied Martens & Goldsmith, Pierre, SD Attorneys for Plaintiffs. Buell F. Jones, Attorney General Benj. D. Mintener, Assistant Attorney General, Pierre, SD Attorneys for Defendant. Opinion filed June 26, 1924

DILLON, J.

This is an original proceeding in mandamus to compel defendant, Jones, as state auditor, to issue to plaintiffs a warrant upon the state treasury for the payment of $700 pursuant to the act of the Legislature (chapter 77, Laws of 1923) which reads as follows:

"Section I. There is hereby appropriated out of any money in the state treasury, not otherwise appropriated, the sum of seven hundred dollars ($700.00) to reimburse the partnership firm of Wadleigh & Payne for cattle lost following dipping in August, 1921, in compliance with an order of the live stock sanitary board."

The affidavit recites the act of the Legislature, the approval of the same, the presentment to the state auditor of a certified voucher for said sum, the refusal of the state auditor to issue his warrant on the grounds that the act contravened the state Constitution. It appears that the plaintiffs' ranch is located in Sully county, and is within the area covered by an order of the state live stock sanitary board requiring all those having cattle within that district to dip them twice prior to July 15, 1921. The plaintiffs, although their cattle were free from scabies or other infectious or contagious disease, in order to comply with this order of the live stock sanitary board, drove their herd of cattle to the dipping vat on the morning of August 18,1921. The dip in this vat was prepared, mixed, and tested by a deputy state veterinarian, who, after having tested the dip, pronounced it to be of the proper solution, and directed that the plaintiffs drive their cattle through the vat.

The affidavit further recites:

"The deputy state veterinarian in so preparing the dip was using a nicotine solution and a different preparation than had been previously used at that vat. Owing to the careless or negligent manner in which the dip was tested, mixed, or prepared by the deputy state veterinarian, it was of such a poisonous character that out of the 28 head of the plaintiffs' cattle which were dipped 14 died as the proximate result of the nicotine poisoning. Some were dead before the entire bunch of more than 28 head had been run through the vat. As soon as the first one died they ceased running the cattle through that particular clip."

Defendant justifies his refusal to issue the warrant on the ground:

That the Constitution (art. 11, §21 provides, among other things, as follows:

"Taxes shall be uniform on all property of the same class, and shall be levied and collected for public purposes only."

That the passing of this legislative act attempts to appropriate public funds for a private purpose, and therefore it is unauthorized.

The board of county commissioners is authorized to provide in accordance with plans and specifications approved by the state live stock sanitary board dipping vats, and all live stock owners shall be required to use such dipping vats under the orders of the state live stock sanitary board. The county in which the dipping vats are located is required to pay the expense of each dipping.

The live stock sanitary board is empowered to order the destruction of animals afflicted with glanders and tuberculosis, and it is granted full powers to enforce its rules and regulations.

Section 9061, Rev. Code, declares it to be the duty of the superintendent to ascertain by personal examination or through reports of authorized agents and representatives of the board all attainable information of contagious, infectious, epidemic, and communicable diseases among domestic animals, and to perform such other duties as may be prescribed by law and the rules and the regulations of the board.

This court in Mackey v. Reeves, 182 N.W. 700, in a former opinion, held that an appropriation of such money, to be constitutional, must be for some use or object which directly or indirectly in some degree or manner aids in the functioning of some governmental purposes. Horris v. Handlin, 162 N.W. 379.

The presumption is in favor of the constitutionality of the statute. 6 R. C. L. 97. By reason of this presumption it is the general duty of the courts to uphold any statute enacted in the ordinary exercise of the legislative power if it is possible to do so without disregarding the plain command or necessary implication of the fundamental law. 6 R. C. L. 101.

If an act of the Legislature would be valid only in the event that certain circumstances existed, it will be presumed that all...