State ex rel. Oster v. Jorgenson

• Decision Date: 15 September 1965
• Docket Number: No. 10273,10273
• Citation: 136 N.W.2d 870,81 S.D. 447
• Parties: STATE of South Dakota ex rel. Henry J. OSTER, Plaintiff, v. Lloyd JORGENSON, State Treasurer of the State of South Dakota, Defendant.
• Court: South Dakota Supreme Court

Page 870

136 N.W.2d 870

81 S.D. 447

STATE of South Dakota ex rel. Henry J. OSTER, Plaintiff, v. Lloyd JORGENSON, State Treasurer of the State of South Dakota, Defendant.

No. 10273.

Supreme Court of South Dakota.

Sept. 15, 1965.

[81 S.D. 449] LeRoy S. Lassegard, Mitchell, for plaintiff.

Frank L. Farrar, Atty. Gen., C. J. Kelly, Asst. Atty. Gen., Pierre, for defendant.

HANSON, Judge.

This is an original proceeding wherein petitioner seeks a writ of prohibition to restrain the state treasurer from paying or disbursing money from 68 different appropriated funds contained in The General Appropriations Act of 1965 (Chapter 277 of the Session Laws of 1965). No useful purpose would be served in listing all of the challenged appropriated items. It is sufficient to say that relate to and involve a wide variety of governmental functions and activities such as old age assistance; aid to dependent children; mental health centers; education of handicapped children; liverstock disease control; research projects; state aid to equalize taxes in counties having school and endowment lands; vocational training; construction, repair and maintenance of buildings at various state institutions; certain salaries at institutions of higher learning; and a memorial museum to the Battleship South Dakota.

Some similar appropriations have been included in past general appropriation bills. Many others have not. The legislative reasons for these changes are not before us and are not material to their validity. It is of no great significance that a particular appropriation has never been included in a general appropriation bill in the past as precedent alone does not prove or disprove the existence of legislative powr to do so. If constitutional power does not exist, it cannot be acquired by legislative assertion. If the power does exist it cannot be lost by failure to exercise it.

Wilmore v. Annear, 100 Colo. 106, 65 P.2d 1433.

With that as a prelude we proceed to a consideration of petitioner's specific objections commencing with the sufficiency of the title to Chapter 277, Session Laws of 1965. It reads 'AN ACT Entitled, An Act appropriating money for salary and expenses of the executive, legislative and judicial departments of the State, for personal services and expenses of all officers, boards, and departments, for support and maintenance of the education, charitable and penal institutions, the Soldiers' Home, maintenance of the State House, and maintenance of the State Guard.' Petitioner contends the title does not comply with or satisfy the requirements of Art. III, Section 21 of the Constitution of South Dakota which prescribes that 'No law shall embrace more than one subject, which shall be expressed in its title.'

A general appropriation bill is not legislation in the true sense of the term. It is as its language implies 'a setting apart of the funds necessary for the use and maintenance of the various departments of the state government already in existence and functioning. * * * In providing that it should embrace nothing else, the framers of the Constitution undoubtedly intended that members of the legislature should be free to vote on it knowing that appropriations and nothing else were involved.' Sellers v. Frohmiller, 42 Ariz. 239, 24 P.2d 666. Its singular subject is the appropriations of money. It serves no other purpose and its contents are constitutionally defined and limited. Of necessity, it appropriates money for a variety of purposes all of which need not be stated with particularity in the title. To do so would cast an onerous and unnecessary burden on the legislature. For these reasons the constitutions of some states expressly exempt their general appropriation bills from the single subject title requirement. Perhaps our constitutional provisions do so by necessary implication, but we need not so decide here as the title to Chapter 277 fully and completely complies with the requirements of Section 21, Art. III. The controlling rule is expressed in the landmark case of State v. Morgan, 2 S.D. 32, 48 N.W. 314, as follows:

'The constitutional requirement in our constitution is addressed to the subject. This subject must be single. The provisions of the act must all relate directly to the same subject, have a natrual connection, and not be foreign to the subject as stated in the title. The title must state the subject of the act for the information, not only of the legislature, but of the public generally. When the title of a legislative act expresses a general subject or purpose which is single, all matters which are naturally and reasonably connected with it, and all measures which will or may facilitate the accomplishment of the purpose so stated, are germane to its title. There is no constitutional restriction as to the scope or magnitude of the single subject of a legislative act.'

The title to Chapter 277 uses the word 'expenses' to describe the nature of appropriations to be made for the executive, legislative and judicial departments of the state. Certainly that unqualified word is broader in scope than the restrictive terms 'ordinary expenses' or 'current expenses'. Likewise the word 'all' preceding 'officers, boards, and departments' is all inclusive and serves to alert the average reader that Chapter 277 is a general appropriation bill. We are satisfied that no member of the public and no member of the legislature was, or could be, misled as to the subject or purpose of Chapter 277 by its title. To invalidate the entire General Appropriations Bill under the circumstances and for the reasons urged would be unreasonable and unrealistic.

The gist of petitioner's remaining objections pertains to and involves the application of Section 2, Art. XII of our 'The general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for common schools. All other appropriations shall be made by separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the legislature.'

Constitution to the several disputed appropriated items. It provides:

This constitutional provision allows a legislative majority to appropriate funds for the ordinary expenses of state government and denies to a minority the power to prevent, obstruct, or stop the operation of the vital affairs of government by denying those necessary funds. But the door to the state treasury is not so easily opened as to 'all other appropriations'. They must be the single subject of separate bills and receive the affirmative approval of two-thirds of all members of both houses of the legislature. Matters which could be included in the general appropriation bill may be the subjects of special appropriation bills without nullifying consequences. However, appropriations included within the general appropriation bill outside of and beyond its scope are void. Callaghan v. Boyce, 17 Ariz. 433, 153 P. 773.

Sec. 18, Art. III of the Constitution provides that upon final passage of a bill in each house of the legislature the 'yeas and nays shall be entered upon the journal.' According to the journals which this court may judicially notice, Barnsdall Refining Corp. v. Welsh, 64 S.D. 647, 267 N.W. 853, Chapter 277 f the Session Laws of 1965 did not receive an affirmative vote of two-thirds of all members of each branch f the legislature.

What then did the framers of our Constitution mean or intend in Sec. 2, Art. XII, by the term 'ordinary expenses of the executive, legislative and judicial departments of the state'? By the term 'current expenses of state institutions'? By 'all other appropriations'? And what are our 'state institutions' and what do the executive, legislative and judicial departments of the state consist of today? Essentially those questions are the issues involved.

An insight into the meaning of the term 'ordinary expenses of the executive, legislative and judicial departments of the state' is indicated in the early advisory opinion of In re Limitation of Taxation, 3 S.D. 456, 54 N.W. 417, wherein the court was concerned with the application of Sec. 1, Art. XI of the Constitution which then and now provides that 'The legislature shall provide for an annual tax, sufficient to defray the estimated ordinary expenses of the state for each year, not to exceed in any one year two mills on each dollar of the assessed valuation of all taxable property in the state * * *. And whenever it shall appear that such ordinary expenses shall exceed the income of the state for such year, the legislature shall provide for levying a tax for the ensuing year, sufficient, with other sources of income, to pay the deficiency of the preceding year, together with the estimated expenses of such ensuing year. * * *' The court said the 'ordinary expenses' of the state are practically defined in Sec. 2, Art. XII and

'To meet these ordinary expenses, appropriation may be made by one general appropriation law, passed by the usual majority vote; but to meet extraordinary expenses each object of appropriation must be the subject of an independent and separate bill, passed by a two-thirds vote. We regard this plainly marked distinction between ordinary and extraordinary expenses, and the extreme carefulness with which the constitution has undertaken to guard the taxpayers and the public treasury against hasty and ill-advised outlays for extraordinary expenses, as peculiarly significant in construing the constitutional provisions involved in your inquiry. As to the ordinary current This opinion points up the constitutional relationship and limitations on both taxation and the expenditure of public funds.

expenses of the state, [81 S.D. 454] which can be each year estimated with close approximation to correctness, excessive taxation is provided...