15 S.D. 494 | S.D. | 1902
This case was before this court at a former term on an appeal from an order sustaining a demurrer .to the complaint, and is reported in 13 S. D. 309, 83 N. W. 333, 50 L. R. A. 351. The decision of the trial court having been reversed, an answer was subsequently filed by the defendants, and the case is now before us on an appeal from an order sustaining a demurrer to the answer. The facts are quite fully stated in the court’s former opinion, and need not be repeated here. The answer of the defendants, after making certain denials and admissions, alleges, in substance, 'that the insane hospital mentioned in the complaint is one of the charitable institutions of the state, and is under the control of the state board of charities: that since the adoption of the constitution of this state an appropriation has been regularly made by each legislature of the state, and an insane tax has been regularly levied by the state board, pursuant to statute, for the support of the said insane hospital, which tax has been levied upon the property of the defendant Berndt, in common with other property, and annually paid in the same manner as other state taxes; that said taxes were levied and collected annually, and have been actually paid out upon warrants drawn upon the state treasurer for the maintenance of said hospital ; that pursuant to the provisions of chapter 79, Laws 1891, the board of charities of this state has fixed the sum to be paid per month for the care of patients in the said hospital, and the superintendent of said hospital has certified to the state auditor the amount not previously certified to him as due under the law, and the said
Objection is take'n to the form of the demurrer interposed in this case, which will be first noticed. The demurrer is substantially as follows: “Now comes the state’s attorney, and, passing paragraphs 1, 2, and 3 of the answer, demurs to the new matter contained in the remaining paragraphs of said answer, and, for the ground of the demurrer, alleges that it appears upon the face of the answer that such new matter therein contained does not constitute a defense to the plaintiff’s cause of action set out in its complaint.” Section 4918, Comp. Daws, provides that the plaintiff may in all cases demur to an answer containing new matter, where upon its face it does not constitute a counterclaim or defense; and the plaintiff may demur to one or more of such defenses or counterclaims, and reply to the residue of the counterclaims. While the demurrer in this case is not strictly formal, we think it is sufficient to raise an issue of law as to the new matter alleged in the answer. This new matter, as we have seen, presents a number of defenses,
As will be noticed, the defense or defenses set out in the answer are, in effect: First, that the law of 1891, providing that counties shall defray the expenses of their insane at the state insane hospital is unconstitutional and void, for the reason that such hospital is a state institution, and should be, and is, supported at the expense of the state, and that the state has in fact levied taxes each year for its support; and, second, that the law of 1895 is unconstitutional and void for the reason that the defendant Berndt, as a taxpayer of Bon Homme county, has not only paid the state tax levied for the support of the insane patients sent from Bon Homme county, but the county taxes levied for that purpose, also and that he cannot, therefore, be required to pay any further taxes by the county, which it is seeking by this action to compel him to pay, because he comes within the class of insane persons who have property, and have no heirs depending upon them for support within the United States. It is contended on the part of the respondent that the constitutionality of the act of 1895 was settled by the former decision of this court in this case, and that decision is the law of the case, and that question is not open for further consideration. But this is not strictly correct. The answer presents some new facts not stated in the complaint, and it therefore would be proper for this court to review its former decision upon the constitutionality of the law in the light of the facts pleaded in the answer. But upon a further examination of these questions we still adhere to our former view that the act of 189 c;, requiring the estates of insane patients who
The more important question to be considered is as to the con-j stitutionality of the act of 1891 requiring counties to levy a tax suf-,;. ficient to repay the state the expenses, of the insane patients from those counties. It is contended on the part of the appellants that as the insane asylum is a state institution, and the constitution provides that taxes shall be levied for the support of all state institutions, the duty is thereby imposed upon the state to levy taxes sufficient to support such institutions, and that in fact it has done so, and that imposing further taxation upon the county to pay the expenses of the insane sent by them to the asylum constitutes double taxation. But while it is true that the insane asylum is a state institution, it is nowhere provided that the state may not require the amount expended for the support of such an institution to be refunded to it by the counties. The contention that such proceedings constitute double taxation is more specious than real. Assuming that the state does in the first instance provide for its support by the levy of such taxes, the taxes so levied and expended are replaced in the treasury by the money collected from the various counties, so that the state treasury is reimbursed for the amount it has expended, and the money is in fact returned to the taxpayer, by being replaced in the state treasury. In State v. Douglas Co.,
Without, further extending this opinion, our conclusions are that the circuit court was clearly right in sustaining the demurrer to the defendant’s answer, and the order of that court appealed from is affirmed.