State v. Anderson

Decision Date13 April 1914
Citation146 N.W. 703,33 S.D. 574
PartiesSTATE ex rel. LONGSTAFF v. ANDERSON, State Auditor.
CourtSouth Dakota Supreme Court

Prohibition by the State of South Dakota, on the relation of John Longstaff, against H. B. Anderson, State Auditor. Writ denied.

Null & Royhl, of Huron, for relator.

Royal C. Johnson, Atty. Gen., for defendant.


This is a special proceeding brought in this court wherein the relator seeks a writ of prohibition prohibiting the defendant, as State Auditor, from drawing and issuing warrants on the State Treasurer against the following special funds: Insurance department fund collected under the provisions of chapter 210, Laws 1909; special militia fund collected under the provisions of chapter 267, Laws 1913; game fund collected under the provisions of chapter 240, Laws 1909, and chapter 226, Laws 1913; dairy fund collected under the provisions of chapter 296, Laws 1909; public examiner's contingent fund collected under the provisions of chapter 256, Laws 1911; fire marshal fund collected under the provisions of chapter 167, Laws 1907; and stock food fund collected under the provisions of chapter 332, Laws 1913.

To the relator's petition the defendant interposed a demurrer raising two questions: (1) That the application for the writ does not, on its face, state facts sufficient to constitute a cause of action, or to entitle the relator to the relief asked; (2) that there is a defect of parties plaintiff, in that the relator has no such interest in the subject-matter as to authorize his bringing this proceeding. We shall only consider the first ground.

The several funds above mentioned are accumulated from licenses fees for examinations made by officers, fines imposed for violations of the provisions of the several acts, special taxes, etc.; and each of the several acts above mentioned contains a section purporting to set aside the moneys received into the fund provided thereby, or such part thereof as may be needed, for the purpose of paying the salaries of the officers provided for by such act, and for the purpose of paying the expenses of such officers incident to the discharge of their duties and other expenses incident to enforcing and carrying out the purposes of the act. These several provisions, thus purporting to set aside these several funds for such purposes, have been recognized by defendant as appropriating the moneys in these funds and as authorizing his drawing warrants on such funds. Relator contends that these several alleged appropriations are unconstitutional; that they are in conflict with the following provisions found in the Constitution of this state Section 9, art. 11: "*** No warrant shall be drawn upon the State Treasurer except in pursuance of an appropriation for the specific purpose first made." Section 1, art 12: "No money shall be paid out of the treasury except upon appropriation by law and on warrant drawn by the proper officer."

It must be borne in mind at all times that the full legislative power, including the power to raise public revenues and to appropriate the same to public purposes, is vested solely in the legislative branch of our state government (Carter v. Thorson, 5 S. D. 474, 59 N.W. 469, 24 L. R. A. 734, 49 Am. St. Rep. 893); that the Legislature, in the exercise of such power, is under no restraint or limitation whatsoever except such as may have been imposed by the people of this state through our state Constitution, or through some surrender of power to the federal government as evidenced by the federal Constitution; and that no legislative act should be declared unconstitutional unless the conflict between its provisions and some principle of constitutional law is so plain and palpable as to leave no reasonable doubt of its invalidity. In re Watson, 17 S.D. 486, 97 N.W. 463, 2 Ann. Cas. 321; State v. Becker, 3 S. D. 29, 51 N.W. 1018; Bon Homme County v. Berndt, 15 S.D. 494, 90 N.W. 147; Queen City Fire Ins. Co. v. Basford, 27 S.D. 164, 130 N.W. 44; State v. Summers (S. D.) 144 N.W. 730. Relator makes no claim that the laws in question in any manner conflict with the provisions of the federal Constitution.

Wherein do they conflict with the provisions of the above sections of the state Constitution? There is no claim that defendant has ever drawn, or that he threatens to draw, any warrant upon either of these several funds except in pursuance of those provisions, of the particular act in question, which purport to set aside the said fund for certain specific purposes therefore the sole question presented, as to each one of the acts before us, is: "Do the words used therein amount to an appropriation for such specific purpose?" The Constitution in no manner prescribes what is necessary to constitute a valid appropriation. In this respect it differs materially from the Constitutions of some of the other states, wherein there are express provisions defining and limiting appropriations, such as that they must be specific in amount or limited for a certain period of time. Webster defines "appropriation" as: "Act of appropriating something to a particular person or use." It is unnecessary for us to quote the provisions of these several acts. Relator does not contend but that they show a clear intent, upon the part of the lawmakers, to appropriate the fund therein named to the particular use or uses therein stated; neither does he contend that they do not contain apt words showing such intent; in fact relator, in his brief, has failed to directly set forth what his contention herein is; and we are left to arrive at his real contention through the necessary inference to be drawn from one single statement which he has quoted from an authority cited by him. This excerpt is from State v. Eggers, 29 Nev. 469, 91 P. 819, 16 L. R. A. (N. S.) 630, and is as follows: "As all appropriations must be within the legislative will, it is essential to have the amount of the appropriation, or the maximum sum from which the expenses could be paid, stated. This legislative power cannot be delegated nor...

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