*1 DUXBURY, McKellips, Roger Robert Symens Linda Lea M.
Paul Petitioners,
Viken, HARDING, Treasurer, Vernon
Homer Schreiner,
Larson, Auditor, and Ron
Secretary of Revenue of the State Dakota, Respondents.
South
No. 17952. Dakota.
Supreme Court South
Argued Aug. Sept.
Decided *2 Bill, $76,000.00
Appropriation of the priation department for military the of veterans affairs to be used build na- to a DeSmet, guard armory tional Kingsbury (SB 171). County. Primary Expenses.
3.Presidential Sec- 23, 35, 20, page tion line of the General Bill, $100,000.00 Appropriation of “op- the expenses” in erating the of the office secre- tary of state to be utilized for reimburse- ment to counties for the (SB 267). primary.
History history following A review of Nesson, J. Butler of Butler and Michael legislation important appeal. to this Falls, petitioners. Sioux for 1. Property Tax Credit—HB 1090 Barnett, Gen., Atty. Jeffrey P. Hal- Mark The on Committee Taxation introduced Jr., Deering, lem and Harold H. Asst. At- HB governor. behalf of the Gen., Pierre, tys. respondents. bill was entitled “AN ACT TO PROVIDE RELIEF, REAL PROPERTY TAX TO SABERS, Justice. MAKE AN APPROPRIATION THERE- permanent Petitioners1 seek a writ of AND FORE TO DECLARE AN EMER- prohibition prevent Respondents from GENCY.” disbursing allocating pursuant introduced, originally As HB 1090 creat- certain contained the 1992 property ed a credit tax account asserting Bill General 1, general Beginning July state fund. they special appropriations requiring were 1992, total revenue 26.75% a vote. receives as its share from net video placed in lottery income would be this ac- FACTS provided HB count. 1090 further original jurisdiction. This is matter money would be distributed to counties to Const, V, 15-25-1; 5; art. S.D. SDCL § provide a tax property credit each tax- 12, 1992, SDCL 21-30-2. On June payer. The bill established a method for request granted court Petitioners’ year pro- 1992 and distribution calendar prohibition. temporary writ of 1993, every year vided that calendar following appropriations challenge be- thereafter, year county each to receive they part Appro- cause of the General adjusted equal prop- an amount total priation simple which was erty payable taxes such multi- majority rather than a two-thirds vote in plied by a factor calculated the commis- Const, of S.D. art. violation management. As sioner finance introduced, Property originally HB 1090 contained Tax Credit. Section continuing ap- page lines 42 to clause and a General Bill, $6,146,518.00 propriation property of revenues to the tax to be relief credit account. to the counties for (HB 1090). development. economic limited failed HB 1090 was considered and (House) pass Representatives Armory. 2. DeSmet National Guard the House of On all page separate Section line on three occasions. three Petitioners, Roger minority McKellips State Senators the democratic leaders Senate Symens Representatives and Paul Robert State and House. Viken, Duxbury Linda M. Lea Vermillion, Aberdeen, Sioux occasions, Speaker the House Mitchell and (Speaker) pass that HB failed to ruled Falls. two-thirds vote it did not receive a the 1985 amend- occasion, members.2 On funding ed to for the construction extend *3 by agreed a two- members of the House guard national Re- of certain armories. keep suspend vote to the rules and thirds argue spondents part of the funds 1090 for discussion. HB alive further by legislation authorized the 1989 Thereafter, to HB many amendments project.” “earmarked for the DeSmet proposed Eventual- 1090 were and failed. however, Nothing, legislative history the emergency the clause and continu- ly, supports argument. this The 1985 and ing appropriation to of rev- department the important 1989 to this Speaker ruled were deleted.3 The enue appeal for one reason: measures both bill, adopted, could the amended if be by legisla- passed a two-thirds vote of the by The simple majority. decision passed Thus, Respondents argue that be- ture. Speaker appealed the to the House was project by DeSmet approved cause the was Representative but by Viken was sus- before, legislature the it twice adopted The tained. amendment was necessary a was not third time. passed HB House with 1090 the 40 was entitled SB 171 “FOR AN ACT TO favor, HB against. 29 When 1090 votes APPROPRIATE MONEY FOR THE CON- Senate, was amended reached bill OF A GUARD STRUCTION NATIONAL up allow the “allocate counties to AT ARMORY DESMET.” twenty percent of for the revenue” eco- argue SB 171 was “to se- introduced development. nomic The House concurred $76,000 funding, cure the additional of 41 to amendments a vote 27.4 remaining added to the 1985 when signed by 1090 was Governor HB on funding previously would allow the autho- Funding March for project go DeSmet rized forward.” credit account was the Gen- included However, legislative history neither the nor Appropriation eral supports argument. the act itself this SB simple majority legislature. vote of the February 171 tabled on was 2. DeSmet Guard National Appro- was funding included the General Armory —SB priation attempt An on the Bill. was made legislature, special In funding floor to remove from Senate
priation, authorized the
Appropriation Bill,
at-
but
$652,500by
department military
and tempt
funding,
part
The
failed.
provide
matching
affairs to
veterans
Bill,
General
of national
construction
simple majority.
guard
Respon-
armories and additions.
Primary
3. Presidential
argue
guard armory
dents
that the national
Expenses
—SB
DeSmet,
Dakota,
South
one of the
required
to re-
eligible
projects
for construction from that
minutes,
expenses arising
counties
imburse
from
appropriation.
review of
however,
Ap-
presidential primary
February
from
held in
the Joint Committee
years.
propriations
expendi- every
reveals that the 1985
four
SDCL 12-6-4.2.
Rapid
City,
legislature passed
emergency
ture was for construction at
Any
emergency
containing
special
emergency
act
clause
measure
re-
4.A
quires a vote of
all members
requires
membership
two-thirds of
a two-thirds vote of the
Ill,
house under art.
22 of the South
each
Dakota Constitution.
(as
present). Assuming
opposed to those
a vote
required,
of all
of two-thirds
members is
24 in
votes would
needed in the House and
language
Petitioners
that while the
“con-
the Senate.
deleted,
tinuously appropriated” was
the rest of
mandatory language
the
fore,
was retained
there-
required continuing appropria-
the bill still
tions.
$250,000
expenses
to reimburse counties for
as re-
measure which
12-6-4.2,
quired by
beginning
for ex-
reimburse them
SDCL
after
the counties to
primary.
presidential
year.” (Resp’t
the start of the 1993 fiscal
penses of the 1988
131,1988
3,1988,
6;
Nicolay
ch.
S.D.
Act of March
Br. at
also
aff. Ex.
at 3-
See
See
pay
4).
assert, however,
the 1988
(appropriation to
Laws 219
that there
primary). In
presidential
legislative history indicating
is no
measure,
passed another
any purpose
ture
had
other than to
$105,720
for the balance
appropriating
the counties for the
reimburse
primary.
in the 1988
incurred
relating
primary.
to the 1992
15, 1989, ch.
Act of March
See
attempt
An
to remove
reimburse
(appropriation to
S.D. Laws 289
from the
Bill in the
primary).
the 1988
counties for
$100,000 appropriation
Senate failed. The
*4
majority. The
passed by
Both
Appropriation
was included
the General
pass
a similar
legislature
failed
passed by simple majority
Bill and
vote.6
anticipated
presidential primary.
of the 1992
Issue
1992,
appro-
introduced to
SB 267 was
disputed
Whether the
inclusion
$435,000
secretary of state to
priate
to the
Appro-
appropriations within the General
reimburse counties for 1992
priation Bill violates the South Dakota
entitled,
267 was
primary expenses. SB
Constitution.
AN APPROPRIA-
“AN ACT TO MAKE
FOR
TION TO REIMBURSE COUNTIES
argue
the inclusion of
Petitioners
THE 1992 PRESIDEN-
THE COST OF
appropriations
Ap-
these
within
AN
TIAL PRIMARY AND TO DECLARE
XII,
propriation Bill violates art.
§§
EMERGENCY.”
2,
XI,
Dakota
and art.
South
§
reason,
“hog-
For some
SB 267 was
While Petitioners
Constitution.
Appropriations
in the
Committee
provisions
housed”
all three of these constitutional
(AN
subject
violated,
for another
ACT
argu-
and utilized
the heart of their
have been
Const,
XII,
OWNERSHIP OF CER-
upon
TO CLARIFY
ment is
art.
based
S.D.
27,
LAND).
the con-
February
TAIN
On
provides:
-2 which
§
adjusted
had
tents of SB
which
general appropriation
bill shall em-
$335,000,
inserted
appropriate only
nothing
appropriations for or-
brace
but
with the
into SB
executive, legisla-
dinary expenses of the
requisite two-thirds vote.
departments of the
judicial
tive and
state,
$100,000
expenses of state insti-
placed
in the
the current
The additional
debt,
tutions,
on the
Bill.
interest
General
$100,000
appro-
All other
appropriation was
for common schools.
argue that the
separate
priations
be made
placed
in the
shall
General
bills,
embracing
object,
but one
begin
could
“so that the
necessary
require
vote
annually acquire the funds
and shall
a two-thirds
money
treasury
“hoghoused”,
paid
No
shall be
out of
When a bill is
the substance
removed,
leaving only
except upon appropriation
law and on war-
the “shell”
the bill
(number),
proper
for another
rant drawn
officer.
which is then utilized
procedure permits
legislature
subject.
This
XI, §
8.art.
9:
during
the new bill
the current
to consider
session.
pur-
levied and collected for state
All taxes
treasury.
poses
into the state
No
shall be
Sy-
Upon passage,
McKellips and
money
Senators
ex-
shall be incurred or
indebtedness
disputing
state,
mens filed a dissent
the three
pended by
shall be
and no warrant
signed
priations.
the bill March
except
pur-
The Governor
upon
treasurer
drawn
the state
challenged
petitioners
the three
specific
1992 and
appropriation for the
suance of an
by bringing
appropriations
Legislature
this lawsuit.
shall
purpose
made. The
first
carrying
provide by
suitable enactment
XII,
this section into effect.
art.
1:§
general appropriation
may
each branch
all the members
bill
(Emphasis
subjects
special appropriation
Legislature.
bills
nullifying consequences.
without
How-
appropria-
Petitioners contend that
ever, appropriations included within the
reality special appropriations.
tions are
general appropriation bill outside of and
appropriations
Petitioners assert
beyond
scope
its
are void.
“ordinary” or
do
constitute either
“cur-
(citing Callaghan
Boyce,
Id. at 873
v.
state,
therefore,
expenses of the
rent”
Const,
(1915) (emphasis
Ariz.
42
singular
Ariz.
745
556,
argu
353,
first turn to Petitioners’
Scott,
N.W.
559
We
274
65 S.D.
Reeves,
184
(1937);
44 S.D.
special appropria
v.
ment that HB 1090 is a
State
(1921).
first ex-
This court
N.W.
996
required approval
legisla
of the
tion which
adopting
framers’ intent
amined the
ture
a two-thirds vote.
In
v.
State
in In re Limi-
requirement
two-thirds vote
423, 11
Youngquist, 69 S.D.
N.W.2d
tation
Taxation:
(1943) we stated:
regarded by the
doubtless
This was
appropriation [requiring
An
a two-
as an ade-
framers of the constitution
legislative sanction for the
thirds
vote]
against
impru-
unwise or
quate guaranty
public
disbursement of the
revenue.
funds,
rule suffi-
dent use of
—a
Appropriations, 18
Continuing
re
Colo.
emergencies, yet
ciently flexible to meet
192,
extraordinary expenses[.]” Id. With these clearly at 86. HB 1090 Id. N.W.2d mind, disput- examine the standards we states that the revenues for the appropriations. ed account “shall be Property Tax Credit annually through general appropriation that without con- act.” admit challenge property tax *6 impossi- it tinuing appropriations would be First, Petitioners credit for two reasons. carry property to out the ble argue appropri- HB 1090 is in itself an Thus, required approval legis- program. of the we conclude that while ation which by Secondly, vote. Peti- lature a two-thirds HB not contain the words “con- 1090 does a challenge the establishment of tioners effect, created appropriation,” tinuous it simple majority) (passed by fund a which appropriation required continuing a legislatures future to fund the mandates of the vote of each house a two-thirds through Appropria- program legislature.9 Bill, thereby circumventing the two- tion Petitioners’ second The outcome of requirement. Respondents ad- thirds vote prop argument depends upon whether introduced, originally HB as mit that 10expense. “ordinary” is an erty tax credit vote, only require did a two-thirds but be- earlier, ordinary expenses of As we noted continuing appropria- cause it contained a executive, legislative judicial de and emergency Respon- tion and an clause. the state are those related partments of argue provi- those two dents that without and regularity which recur “with sions, only ongoing program HB is an 136 N.W.2d at certainty." Jorgenson, ordinary funded as an which should be However, in case also stated: we expense. 875. (Empha- proved by place of revenue.” 9. To determine otherwise is to form over sis HB states: substance. Youngquist, Applying as outlined in the test year year and each there- "In calendar "may paid expenditures be after, county shall receive an amount each authority treasury on drawn from the state taxes_ equal property In calen- to the total act[,]” appropriation an HB 1090 was [this] thereafter, year year and each dar requisite vote. failed to receive the taxpayer it_” shall receive a cred- finally, "[e]xpenditures any appear autho- be serious And There does not appropriation was dispute this Act shall be on warrants over whether rized Jorgenson, at 875. ap- 136 N.W.2d on vouchers “current.” See drawn the state auditor guard and addi- written which tion of national armories inflexible rule can be [N]o tions, solidify legislature clarify forever dis- a two-thirds vote of the will appropria- “ordinary,” necessary pass “current” tinction between was not “extraordinary” expenses disagree. in 1992. We tion government. The line of demarcation is Jorgenson We held that: clear, distinct, Much must or static. acquisitions, per- land Cost of erection of wisdom, good integrity, left to the be capital buildings and similar ex- manent legislators. of our judgment penditures cannot current be considered added). (emphasis at 875 Id. expenses. Respondents the an- admit that without (emphasis Jorgenson, N.W.2d at 875 impossible nual it would be Thus, added). we conclude that this carry program out the tax credit and ac- expense priation was not an ordinary years knowledge may that there be when therefore, state had to be the fore- Applying not available. by a passed two-thirds vote of each house principles, that the tax going we conclude legislature. of the logically credit fund be construed to cannot ordinary expense govern- an state Primary Expenses Presidential long it as ment. While is true that as there primary Since basis, funding it yearly is will recur on a 1986, presidential primary established hardly necessary “in credit is through spe have been handled proper operation order ... of the cial bills on an government.” clearly It state Id. at 874. special appropriations These have basis. government, expense not an legislature by two- otherwise, ordinary or the meaning within Jorgenson, thirds As we vote. stated Constitution.11 however, great significance is of no “[i]t wisdom, judgment integrity particular appropriation that a has never legislators our was exercised when on been included a General pass by three occasions HB 1090 failed past precedent Bill in does not alone funding in Placing two-thirds vote. disprove legisla prove or the existence of calling it to do power Jorgenson tive so.” “ongoing program” simply attempt previous presiden require- circumvent the constitutional primary appropriations tial *7 any special appropriation ment be the solely the two-thirds vote by legislature. two-thirds of the emergency clause contained them. within Armory 2. DeSmet National Guard (SB 267) originally This was earlier, explained As the fund to reimburse for the introduced counties ing DeSmet National Guard Ar presidential primary. It also con- special was first a mory ap introduced as emergency tained an clause but failed to propriation bill. killed That bill was and Later, pass by a two-thirds it vote. was placed the in the General hoghoused into SB identical byBill adding funds to $100,000 except appropriated it to SB 267 appropriations of mili the division less SB 267. SB 62 two- than and tary veterans affairs. thirds vote. The General $100,000 leg- that because Bill was amended to include appropriated general secretary islature 1985 and from the fund to the state, a two-thirds vote for the construc- be distributed to the counties contemplated by lottery 11. The this income. The counties will receive the provide any funding bill does not state aid to whether “additional same amount of educational a system," prohibition our education While the as indicated dis- writ of is issued or not. Rather, simply prop- may appeal, assisting taxpay- concept sent. this bill reduces the have some taxpayers by erty pro- county-imposed liability tax burden of their is not individual ers with credit, viding ordinary expense government. them with a with video financed pres- county expense does a become state ex- payment for costs associated with a primary. pense simply by requiring idential it to be secretary the counties state. Ad- subject argue that the same ditionally, does not fit (the counties for the duty to reimburse expense” within the definition of a “current gen- primary) cannot be both county aof state institution because a Respon- special appropriation. eral and Therefore, not a state institution. ex- legislature decided to reply dents penditure phrase comes within “all oth- basis, an annual expenses these address appropriations” requires er “two- year rather commencing in fiscal thirds vote of all the members of each responding than on an basis Legislature.” branch of the have every years four after note, As Petitioners howev- been incurred. conclusion, invalidity of these er, $100,000.00 placed allocation was appropriations does not render the entire operat- general of state’s into Appropriation Bill void or affect ing fund. 4-8-19 states: SDCL validity invalidity remaining unexpended appropriations All annual as the various year at the end of the fiscal covered Jorgenson, funds are severable nature. general appropriations act which 136 at 878. N.W.2d obligated in contractually not have permanent prohibition writ of will be writing approved by the commission- issued. management prior er of finance year, lapse the end of the fiscal shall MILLER, C.J., HENDERSON, J., available, and shall re- and cease to be concur. appropriat- vert to the fund from which WUEST, J., (Emphasis specially. ed. concurs 4-8-19, Therefore, pursuant to SDCL J., AMUNDSON, part concurs “unexpend- year the end of fiscal part. dissents in $100,000.00 general to the ed” would revert WUEST, (concurring specially). Justice not available to reim- fund would agree I that HB 1090 in effect is a do the state for incurred burse contrary, continuing appropriation. To the primaries. future requires it an annual which is 2 of the state constitu- Under art. Otherwise, continuing appropriation. not a tion, Appropriation Bill shall majority opinion. I concur with the “ordinary expenses” of the only embrace branches, “current ex- three AMUNDSON, (concurring part Justice institutions, interest on the penses of state dissenting part). and for common schools.” debt majority’s position on I concur with the provides: 12-6-4.2 SDCL Issues and 3. The State shall reimburse *8 any legislation any property costs incurred as a result of The was presidential primary legislature’s election held on the obviously ushered in February. (Emphasis in Tuesday last property tax freeze in enactment added.) ch. 10-12B. this 1989. See SDCL Since legislation repealed January 1989 as of makes Respondents argue that this statute 1, 1992, it was obvious that the citizens of expenditure. A expenditure a state this looking this state would be to reimburse counties for program intended however, taxes which could increase close to primary expenses, (H.B. 1090) boiling point.* legislation This “ordinary expense” does not constitute pain sky basically ease the of these government. Nor would any branch * ranging from 20% to 70% for obviously in certain areas increases has been the case This proposed entities have of the state where tax money Bill 1090 back to the taxpayers pro who House sends
rocketing taxes on the
replace
in
counties
South Dakota to
engines
of state and
vide the fuel
received
that otherwise would have been
governmental
local
entities.
taxpayers.
taxpayer
from the
under this
the relief
majority
The
would erase
legislation
against
receives a credit
his tax
taxpayers
granted by
legislation
this
to the
county.
majority
What is the
bill from the
This court
State ex rel.
state.
county
the taxes collected in each
ear-
447, 456-57,
Jorgensen,
Oster
simple
The answer is
marked for?
—edu-
(1965),
dealt with an
136 N.W.2d
Therefore,
majority
cation.
of the mo-
appropriation bill
general
attack on the
legislation
nies
under this
is
legislature in 1965 and held
in essence additional state aid to our edu-
as follows:
ordinary expense
system.
cation
Is this an
As the functions of state
government?
say “yes”
I dare
of state
range
involving
cover a wide
of activities
other
million dollars so
view of the
health,
public peace,
safety, and wel-
dedicated in the
bill. Fur-
ordinary
fairly
fare its
cannot
ther,
for eco-
view of the
ordinary
compared or
to the
confined
development
nomic
of this state contained
private
of a
enter-
business
bill,
general appropriation
per-
prise. They are of a different nature
centage
being
of the funds which are
sent
change
time to time to
and must
from
development
back for economic
within each
differing
In
meet
needs
conditions.
ordinary expense
is also an
and extraordi-
other words the unusual
government,
development
since economic
nary may
ordinary.
usual
become
certainly is a benefit
the state as
well
expanding
The
cost of various health and
county.
certainly
It
is obvious that
programs
example.
welfare
is an
An-
working
develop
economic base for this
other,
is the
which have
business,
competitive
state is a
which cer-
regularly
made since
tainly
pub-
necessitates
equalize taxation and to relieve distress
lic funds.
having
in counties and school districts
conclusion,
petitioners argue
an abundance
nontaxable
safeguard
this court is to
the citizens of
owned school and endowment
lands
this state from the abuses of the
Therefore,
within their boundaries.
no
govern-
ture and executive
branches
inflexible rule can be written which will
question that
ment. There is no
role
clarify
solidify
the distinction
forever
government.
separate
of this
branch of
“ordinary”,
between
“current” and “ex-
problem
justice
finding
has is
traordinary”
govern-
expenses of state
abuse House
1090. This
ment. The line of demarcation is not
provides
taxpayers
for the benefit of
rather
clear, distinct, or static. Much must be
Further,
than for the detriment.
it seems
wisdom, integrity,
good
left to the
good judgment
to be an exercise of
to allow
legislators.
(Emphasis
judgment of our
sending
for credit when
this additional
money
to aid the education of the
back
say
It is an accurate statement
just
students of this state rather than
send-
government change
functions of state
over
ing
merely
money
spend
it back as
more
time
view of the fact
the state
whatever,
any
with
amount of relief to
budget being
Jorgenson
considered in
being
taxpayers
forsaken.
plus
amount of 62
million dollars
(General
Act,
ch.
Article
of our state constitution
*9
382),
safeguard public
and the 1992
from un
S.D. Laws
revenues
bill,
imprudent
which is under consideration
this wise or
uses. See State ex rel.
case,
Wilder,
plus
deals with the
of 539
Mills v.
73 S.D.
N.W.2d 891
(General
(1950);
Ap-
Kelly,
million dollars of state funds
State ex rel. Jensen v.
Act,
(1937);
propriations
ch.
1992 S.D. Laws S.D.
advised Therefore, judicial fortress
tive. taxpay- relief to the
should block- writ
ers, permanent minimal. The however