South Dakota Auto. Club, Inc. v. Volk, 13411

CourtSupreme Court of South Dakota
Citation305 N.W.2d 693
Docket NumberNo. 13411,13411
PartiesSOUTH DAKOTA AUTOMOBILE CLUB, INC., a South Dakota Corporation; Associated General Contractors of South Dakota, Inc. (Highway Heavy Utilities Chapter), a South Dakota corporation; the Associate Division of the Associated General Contractors of South Dakota, an unincorporated association; South Dakota Trucking Association, a South Dakota corporation, and Jack Rentschler, an individual, Applicants, v. David VOLK, duly elected treasurer of the State of South Dakota; James Myers, duly appointed director of the Division of Railroads of the State of South Dakota; and Vern Larson, duly elected auditor of the State of South Dakota, Respondents.
Decision Date08 May 1981

Thomas J. Welk and Jeremiah Murphy of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for applicants; Russell Greenfield and Terry Prendergast, of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, on the brief.

Mark V. Meierhenry, Atty. Gen., Pierre, for respondents; John C. Wiles, Asst. Atty. Gen., Pierre, on the brief.

Robert B. Frieberg of Frieberg, Frieberg & Peterson, Beresford, for amici curiae; Steven L. Pier, Legal Intern, Frieberg, Frieberg & Peterson, Beresford, on the brief.

MORGAN, Justice.

This is an original proceeding brought under the provisions of SDCL ch. 21-29, SDCL ch. 21-30, and S.D.Const. Art. V, § 5, wherein applicants seek a writ of mandamus requiring respondent State Treasurer David Volk, upon receipt of the proceeds of the additional tax imposed by Senate Bill 236 (S.B. 236), to expend said collected monies exclusively for the maintenance, construction, and supervision of highways and bridges of this state, except costs of administration; and further seek a writ of prohibition prohibiting respondents State Treasurer Volk, Director of the Division of Railroads James Myers, and State Auditor Vern Larson from expending for the railroad operation program any state highway funds received from the additional tax imposed by S.B. 236 and appropriated to the Division of Railroads by Section 36 of House Bill 1376 (H.B. 1376), the 1981 General Appropriations Bill. The applications further urge that the relief sought involves a public matter and one of public right involving state highway funds directly and proximately affecting the State of South Dakota and its citizens, as applicants have no plain, speedy, and adequate remedy in the ordinary course of law or otherwise for the harm or damage to be done by the immediate expenditure and contract for the expenditure by respondents.

Upon these applications this court entered an order for and an alternative writ of mandamus directed to respondent State Treasurer Volk, directing him to thereafter accumulate the proceeds of the additional tax imposed by S.B. 236 exclusively for the maintenance, construction, and supervision of highways and bridges in the State of South Dakota, except costs of administration, and also an order for and an alternative writ of prohibition restraining all respondents from proceeding further in the implementation of legislation involving expenditure of the additional tax imposed by S.B. 236 for the operation and maintenance of the rail lines of the State of South Dakota. Both writs were issued in the alternative, and respondents were given an opportunity to show cause why permanent writs should not be entered. Because of the imminency of contract lettings, time for briefing was abbreviated and oral arguments on the motions were set for an early date, at the request of respondents through their counsel and with the cooperation of counsel for applicants. In the course of briefing, it was suggested by amici curiae and acknowledged and concurred in by applicants that taxes on gasoline and other liquid motor "fuels not used to propel motor vehicles over or upon public highways of this state" may be expended for non-highway uses such as railroads, and applicants agreed that their applications and any permanent writs, if issued, should be restricted to "highway users' " tax proceeds collected under S.B. 236. To that extent we now grant the writs sought and make the alternative writs permanent writs.

While applicants have no dispute with the tax increase provided in S.B. 236 as adopted, the provisions of the bill for the expenditure of funds for railroad operation and maintenance play a key role in our examination of the constitutionality of Section 36 of H.B. 1376. It is this provision that gives rise to this request for relief.

S.B. 236 as originally introduced was entitled "An Act to authorize rail service over essential state-owned rail lines, to provide funding for rail operation and maintenance, to create a special fund and make an appropriation therefore and to declare an emergency." It started out with a provision for a commodities tax on grains, cement, primary forest products, and crushed and broken stone under the administration of the secretary of revenue and "deposited with the state treasurer in the railroad operations fund." The original bill also appropriated.$2.7 million to fund railroad operation and maintenance costs over state-owned rail lines.

By amendment during the legislative process, the commodities tax provisions were deleted and an additional one-cent tax was imposed on motor fuels and fuels used in internal combustion engines with certain exceptions. 1 More important for our consideration however, is that the amendment directs the state treasurer to identify all the proceeds of the one-cent additional tax and deposit them in the state highway fund for use by the state, and exempts such proceeds from distribution to political subdivisions under other provisions of the law. 2

The appropriations provision of S.B. 236 was deleted, but was incorporated almost verbatim as section 36 of H.B. 1376, the general appropriations measure, the only difference being that the source of the.$2.7 million appropriation is now the state highway fund rather than the railroad operations fund.

Applicants do not challenge the imposition of the additional one-cent per gallon fuel tax and the deposit of the proceeds in the state highway fund. Rather, their challenge goes to the appropriation under section 36, noted above, and they seek to have this court (1) require State Treasurer Volk to deposit all proceeds of the tax into the state highway fund, and (2) prohibit the state officials from expending any portion of said funds that is realized from fuels used on the highways for the operation and maintenance of railroads in violation of the provisions of S.D.Const. Art. XI, § 8, which provides, in pertinent part:

(T)he proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel except costs of administration and except the tax imposed upon gasoline or other liquid motor fuel not used to propel a motor vehicle over or upon public highways of this state shall be used exclusively for the maintenance, construction and supervision of highways and bridges of this state.

The Attorney General, responding for the state officials, argues that the appropriation falls within the exclusive strictures of Art. XI, § 8, because another provision of our state constitution, Art. XVII, § 15, provides in part: "Railways heretofore constructed or that may hereafter be constructed, in this state are hereby declared public highways(.)"

The Attorney General's thesis is that whereas the provisions of Art. XVII, § 15 were adopted as part of the original constitution of this state in 1889, and whereas the restrictions of Art. XI, § 8 were adopted as an amendment in 1940, the voters, in voting on the amendment, were aware that railroads are public highways.

The basic issue thus presented is simply, does the term "public highways" as used in Art. XVII, § 15 mean the same thing as the term "highways" as used in Art. XI, § 8?

For clarification, when we speak of "fuel tax" or "gas tax," we are referring to the tax on all motor fuel sold or used in this state under SDCL ch. 10-47 and the excise tax imposed by SDCL ch. 10-48 on all users of fuel within this state when such fuel is used in an internal combustion engine for the generation of power to propel a motor vehicle of any kind and character on the public highways. When we speak of the "tax increase," we are referring to the one-cent tax added to both SDCL ch. 10-47 and SDCL ch. 10-48 by S.B. 236, as adopted.

Before considering the issue, we should first discuss this court's scope of review. A court, in construing a constitutional provision, must give regard to the whole instrument, must seek to harmonize the various provisions, and must, if possible, give effect to all the provisions. Board of Regents v. Carter, 89 S.D. 40, 228 N.W.2d 621 (1975). However, " '(a) constitutional amendment will prevail over previously adopted provisions of the Constitution with which it conflicts and with which it cannot be harmonized.' " State v. Meier, 127 N.W.2d 665, 673 (N.D.1964). Upon adoption of an amendment, it becomes a part of the constitution as much as if it had been originally incorporated therein. Usually amendments are adopted for the express purpose of making a change in the existing system. Particularly applicable in the case of amendments are the rules relating to the intent of the framers and adopters and attainment of the object of a constitution. "The courts are under the duty to consider the old law, the mischief, and the remedy, and to interpret the constitution broadly to accomplish the manifest purpose of the amendment." 16 Am.Jur.2d Constitutional Law § 88 at 415 (1979) (footnotes omitted). This court followed this mandate in State v. Reeves, 44 S.D. 568, 184 N.W. 993 (1921).

" 'Generally speaking, principles of construction applicable to statutes are also applicable to constitutions, but not to the extent of defeating the purposes for which a constitution is drawn.' " Egbert v. City of Dunseith, 74 N.D....

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