State ex rel. Jensen v. Kelly
| Decision Date | 22 June 1937 |
| Docket Number | 8080. |
| Citation | 274 N.W. 319,65 S.D. 345 |
| Parties | STATE ex rel. JENSEN v. KELLY, State Auditor, et al. |
| Court | South Dakota Supreme Court |
Original proceeding by the State, on the relation of Leslie Jensen, as Governor, and personally, against Raymond A. Kelly, as State Auditor, and others, on an application for a writ of prohibition.
Application granted.
O'Keeffe & Stephens, of Pierre, for plaintiff.
Clair Roddewig, Atty. Gen., Windsor Doherty, Asst. Atty. Gen., and Donald Fellows, of Mitchell, for defendants.
This is an original proceeding in this court instituted by Leslie Jensen as Governor and as a taxpayer, on behalf of himself and all other taxpayers similarly situated, against Raymond A. Kelly, as State Auditor, W. H. Hinselman, as State Treasurer, Clair Roddewig and Guy E. Geelan, as members of the Commission of Justice and Public Safety of the State of South Dakota, and B. D. Mintener, as Superintendent of the Department of Justice and Public Safety, to prohibit and enjoin the disbursement of public funds of the state appropriated by section 42, chapter 134, Laws 1935, for the support and maintenance of the Department of Justice and Public Safety. It is alleged in substance that this section is unconstitutional in so far as it appropriates funds for the purpose mentioned. Defendants filed a return in the nature of a general demurrer.
The first question presented is whether plaintiff has such an interest as to entitle him to bring these proceedings. We do not believe that within the prior decisions of this court such right can be seriously questioned. It has become the settled law of this state that a taxpayer need not have a special interest in an action or proceedings nor suffer special injury to himself to entitle him to institute an action to protect public rights. White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614 618, 43 A.L.R. 397; State ex rel. Bryant v. Dolan, 61 S.D. 530, 249 N.W. 923. Nor is there any merit in the contention that a proceeding of this nature should not be entertained by this court unless the proceeding is instituted in the name of the state upon the relation of the Attorney General. In White Eagle Oil & Refining Co. v. Gunderson supra, it is said: We see no reason to differ with such conclusion, though it does not appear that the Attorney General refused to institute the proceedings, if he is a party defendant and defends in the proceedings.
Plaintiff bases his claim of the invalidity of the appropriation upon constitutional grounds. The necessity of a prompt decision renders it difficult to do more than briefly to state the contentions of the parties and our conclusions. It is contended that the appropriation for the support and maintenance of the Department of Justice and Public Safety in section 42, chapter 134, Laws of 1935, is in violation of section 21 of article 3 and section 2 of article 12 of the State Constitution. The first of these sections reads as follows: "No law shall embrace more than one subject, which shall be expressed in its title." Section 2 of article 12 is in the following language:
The title of the act in question is as follows: "An Act Entitled, An Act Providing for the Manufacture, Sale and Distribution of Intoxicating Liquor, and For the Control and Supervision Thereof, and Repealing Existing Laws in Conflict Herewith, and Declaring an Emergency."
The general subject of the act is the provision for the manufacture, sale, and the control and disposition of intoxicating liquor, and that subject is clearly expressed in the title. City of Pierre v. Siewert, 63 S.D. 485, 261 N.W. 42. Section 42 provides for the disposition of the funds derived from licenses and taxes imposed by the act. It is provided in this section that certain license fees shall be credited to the law enforcement fund which are appropriated "to the use of the Department of Justice and Public Safety of the State of South Dakota" and the superintendent of the department is expressly authorized to "use such funds for the proper enforcement of this act and other existing laws." The law enforcement fund is also by the provisions of section 42 made available for the payment of all salaries and expenses of the Liquor Control Commission. The Department of Justice and Public Safety was created by chapter 97, Laws 1935, and its officers and agents are vested with general authority with respect to the enforcement of criminal laws and inspection and regulatory measures. It is manifest that the appropriation embraced in section 42 of chapter 134, Laws 1935, is not confined to the expense of enforcing and administering its provisions. It is contended that such an appropriation is a separate subject-matter and not embraced within the title.
No rule is better settled than that every presumption is in favor of the validity of legislative action, and that the courts should sustain the constitutionality of a statute unless its infringement of constitutional restrictions is so palpable as to admit of no reasonable doubt as to its constitutionality As to the constitutional provision that no law shall embrace more than one subject which shall be expressed in its title the courts are vested with no dispensing power. "Ours is a constitutional government, the people, in their sovereign capacity, have placed the above restriction upon the methods of legislation, have prescribed the above rule which their legislative servants must conform to, and, if they neglect to conform to this rule and keep within this restriction," as stated by this court in Metropolitan Casualty Insurance Co. v. Basford, 31 S.D. 149, 139 N.W. 795, 798, "their labor, no matter how meritorious otherwise, will be of no effect, as this section of the Constitution is mandatory." It is contended by the defendants that the disposition of revenue arising under the provisions of the act and the appropriation thereof are so related to the general subject as not to constitute a separate subject within the meaning of the constitutional provision prohibiting a statute from embracing more than one subject. There is no well-defined rule by which a title of an act may be tested to determine its compliance with this constitutional provision. The history and purpose of such provision is well understood; as stated by this court, it is intended to prevent the bringing together in one act of subjects having no necessary connection or relation with each other, to guard the Legislature and persons affected by the Law against surprise and imposition, and to prevent popularly called logrolling legislation. State v. Morgan, 2 S.D. 32, 48 N.W. 314, 317; State v. Becker, 3 S.D. 29, 51 N.W. 1018; Lemmon Ind. School Dist. v. Rowbotham, 48 S.D. 641, 205 N.W. 706; Woods Bros. Construction Co. v. Board of Com'rs of Yankton County, 55 S.D. 161, 225 N.W. 228. The requirement, generally speaking, is that the title must embrace the subject of the act and the body of the act must not include matters...
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