*1 OF the SUPREME re OPINION In RELATIVE TO CONSTITU-

COURT 239, OF CHAPTER TIONALITY SES- excellency, To his Richard F. Kneip, (SDCL 31-4A). LAWS OF SION State South Dakota. 12304. No. August 3, 1977, letter of Your requests of South Dakota. Supreme Court Justices of the important upon Court of law in- Aug. volving your the exercise of pow- upon as Governor ers matters which are of utmost solemn you occasion relating Chapter Session Laws of 1977, creating the South Bridge Dakota Au- thority.

You our opinion ques- on three as follows: tions “1. Would an act which authorizes the Bridge Authority South to issue scope bonds within ch. Session violate Laws of Article Section 8 of the South Dakota Constitution permitting diversion of highway funds for administrative and expenses interest which are unrelated to maintenance, super- vision of and bridges? “2. an act which Would authorizes the Authority to issue South scope within the bonds ch. Session Laws of and which authorizes a continuing appropriation to retire needed said violate Article XII of the (a) Dakota Constitution? Is a con- tinuing appropriation constitutionally au- (b) Can a subsequent legisla- thorized? ture decide to continue the continuing (c) appropriation? Would a future ‘con- tinuing appropriation’ a two- majority simple thirds or a majority? (d) impoundment Is an of future highway funds authorized under Article Sec- 8 of the South Dakota Constitution? Do the “8. constitutional debt limita- tions found 16, impose any additional and inde- pendent upon limitations the use of con- state highway stitutional funds?’’ advisory opinion This V, pursuant made to Article 8§ Dakota Constitution states part: *2 has “The Governor at beginning

“The Governor shall upon im- Court session, opinions times, of each and may at other of in the law involved portant questions Legislature give the information concern- upon and power of his executive the affairs of ing the state and recom- occasions.” solemn the measures mend considers he neces- is provision ruled that has This court sary.” disjunctive, presenting two situations Implementing this provision is, upon given, can be which an 4-7-9 which reads: SDCL of law involved

important questions Governor, through “The the bureau of upon and his executive exercise of management, prepare finance shall Opinion In Re occasions. solemn budget Legis- a report and submit 34 S.D. 147 N.W. Judges, lature, copies thereof shall be trans- 1977, provides: S.L. 1 of Ch. to each Legisla- mitted member of the Dakota created the “There is ture, later not than the December first authority, body corporate a bridge immediately preceding the session for effecting ap- politic, for the either or consideration without on the improvements bridges propriate by amendments modifications including trunk system, Legislature.” approaches construction repair, replacement bridges, or bridges, conclude important ques We renovation, bridges as upgrading involving of law exist the executive tions shall from time to time executive in that Ch. powers bridge au- The South Dakota authorize. requires executive action at this ‘au- referred to as the thority, hereinafter legislation ques time considered to be members consist of seven thority’, shall under our Constitution. tionable members who shall also fit This the definition of a sol- building authority appointed by occasion, though this is a nebulous Governor, emn by and consent of with the applied government. 5-12-1 when to state in accordance with term the Senate of the author- members solemn occasion warrants decision and 5-12-2. How pre- office as take oath of ity easily being shall are not is not too defined. We 5-12-3.” insurrection, § scribed invaded, populace is not in go will if are not hungry and no one contemplates appoint- the act While maintained; however, legisla- existing building authority mem- built it Bridge Authority, expenditure as members calls for eventual bers appoint the- for the Governor still million dollars in state fifteen Bridge members of funds, the costs plus issuing bonds pro- to take a new these members' oath interest, which most tax- IV, 5-12-3. Article by Under vided SDCL would occasion. consider a solemn payers Constitution, our 3 of § “[t]he your we have Accordingly, concluded that all the state.” officers of shall commission should be answered. inquiry office, According Secretary of State’s first consider the constitutional We will have no been made and appointments no imposed on the state restrictions by been taken the members oaths have by 8 of the South fund Authority, appoint- and such Constitution. involve the exercise of the would ments power. course, We, handicapped Governor’s executive are in decid- having matter the facts ing this Further, provides appro- Act in a us would be available before year from a of two dollars priation instance, case. For we do not litigated pur- finance the special highway IV, bonding the interest Bridge Authority. Article know poses of the paid that: on the or the cost of our Constitution rate to bonds 3 of situation, The importance of this deletion from our In this these bonds. procuring the usual emphasized. feel bound to follow must be A sur- do not Constitution case “on the record” as deciding the constitutions reveals that only rule of state vey token, we By the same no record.' Dakota, there Nevada and three states —South in a vacuum but to operate not intend do Michigan to add this —declined *3 us in knowledge common to all of the use bonding of costs out of this payment the bonding authorities. We dealing highway fund. We must assume special call it Judicial knowl- (whether you know Legislature took this action delib- that the otherwise) bonding that authorities edge or the erately submitting the amendment to to clear a bond bonding counsel provision including for “the people. accepted will be and that it issue before of payment bonds for the of retirement issues) varies (based on similar bond fee revenues pledged” have been which percent and one-half one to one from in the federal statute and was stricken was We know that bond issue. also total submitting before by the authority requires pay- bonding interest to the people. amendment (again, prior based on bond is- and ments Jones, case of State v. In the the interest varies from three to sues) that 23 N.W.2d North N.D. percent depending on one-half and four the conclusion that certificates of reached bonding counsel considers to be its what provi- under a constitutional indebtedness involved. risk sion similar that of South Dakota were knowledge and not on the Based on however, proper; under a recent amend- leg- record, proceed will to examine state, phrase in that was added to of Article 8 which light in the islation as constitution follows: its special highway fund payment obligations “and the of incurred the mainte- exclusively used for “shall be construction, reconstruction, repair nance, high- of public of this state.” of ways highways.” and and maintenance This decision went on to conclude that the noted that the South Dakota It should be provision and limit provision specific is more debt North Dakota constitutional Constitution, constitutional than most state similar to our Article restrictive general- funds which provisions apply long 2 and did not as the the funds be used simply state that must ly expenditures, including payments for costs specifically and then highway purposes, for indebtedness, came con- of from this special bonds, highway pur- as a payment list gasoline derived from stitutional these constitutional All of pose. taxes, fuel plate motor license reve- other of the enactment of the as a result arose nue, emphasized etc. This decision that the Act, Hayden-Cartwright Stat. § .12 motor fuel income from taxes was “frozen” federal construc- which limited “construction, purposes sole re- for the to those states that use state money construction, repair and maintenance of fees, licenses, registration vehicle motor highways” payment and for “the public taxes, other taxes on gasoline construction, obligations incurred in the re- operators “for owners motor-vehicle construction, repair and maintenance of construction, improvement, and mainte- highways.” The decision rested on public and administration ex- nance phrase the fact this latter relative to therewith, including in connection penses obligations payment had been added payment of bonds for the retirement ap- in an amendment to the Constitution pledged, revenues have been which such by people in 1940. proved ** no other *.” and for The conclusion inevitable that without not choose to include the Dakota did this amendment funds derived from statute, of this federal portion latter and other motor gasoline fuel excise and in the constitutional is no there taxation, motor registration license vehicle payment bonding amendment license taxes would have been frozen interest. costs and construction, reconstruc- exclusively financing the construc- public high- tion, repair tion, and maintenance replacement, repair, renovation, or would not have been availa- they ways, upgrading of bridges approaches costs of indebtedness or bond pay ble system; the state trunk to re- issues. refinance fund and the same from time to so; when in the time interest to do a similar conclusion answer- We reach any pledge and all income of such question posed as to Ch. ing the pledge shall not exceed 8 of our history two million dollars in payments, annual Constitution, as indicated our failure the amount of moneys needed to amor- the federal statute and include follow fifteen million tize dollars in the principal legitimate expendi- issues as a of bond costs of such amount whichever is less- highway fund and the cases out of this ture er, such, to secure bonds. Court since subject All such bonds shall be provi- enactment of that *4 17, of sections 13 to inclusive, sion, that this is a restrict- clearly indicates Act.” of this fund created the Con- impressed ed and prevents the use of the funds stitution 23 of 239, Ch. provides: S.L. 1977 payment any in the Article for described department of transportation “The obligation of the state other than those to hereby authorized enter into contracts in the Article. See State v. described years more for one or with the authority 423, 69 11 Youngquist, S.D. N.W.2d the department under which agrees to Supreme where the Court struck down timely payments make sufficient to am- attempted which to transfer funds measure principal ortize and interest of any special highway gener- fund into the by the authority pursuant bonds issued to of miscellaneous al fund for agreement. contractual such The board Also, Wilder, see v. State appropriations. transportation is hereby authorized to 42 73 S.D. N.W.2d where an obligate the amount of funds necessary to was made to divert motor fuel attempt up to fifteen amortize million dollars in to reduce the rural credit bond and taxes principal any amount of bond issue or interest, and, again, the court stated that annually, million dollars two whichever is improper spe- was an diversion of the lesser, or so much thereof may as highway cial fund. As stated in State v. from the state necessary highway fund, supra, Youngquist, any for amortization bonds it autho- authority over these funds “Legislative authority to issue pursuant rizes the to its by the amendment to the enact- limited Upon signing contract, contract. such ment of administrative measures. The authority department and the may agencies establish new transportation notify shall the state trea- officers, existing or authorize boards or treasurer, surer. state when trans- to use the funds for commissions ferring seven-eights of the motor fuel tax administration, maintenance, construction the state highway fund to fund pursuant supervision. may change It these 10-47-73, shall to transfer the amount from time agencies may to time and it moneys required any meet contrac- vary procedure.” the administrative obligation tual between the authority and at 11 N.W.2d at 86. S.D. department transportation question may be raised whether bond bridge fund in a timely manner issues are “administrative” measures. Sec- to enable calculated the authority to meet provides: tion 12 of Ch. obligations. its contractual Such transfer accomplish projects public bridge

“To of the kind pre- fund shall have Act, any in section 6 of this the authori- cedence over listed transfer of funds to the highway fund, and, possess up shall issue state ty the event the special obliga- million dollars of funds the motor fuel fifteen tax fund availa- bonds in such amounts as tion revenue for transfer ble state necessary determine fund are insufficient to cover the terms agreement, of such contractual such a This makes it clear general that no funds shall be made as soon as funds transfer are to be appropriated for paying these until all become available contractual ob- obligations, and it leaves only the special ligations have been met. The sum of two highway fund available to pur- finance the dollars, or so much thereof may poses of this Act. necessary, hereby annually appropri- the explicit Given instructions of the ated from fund for the Constitution that this money is to be used described in this section.” exclusively “maintenance, construc go beyond This seems to far the enact- tion and of highways and of administrative measures described state”, bridges of this history Youngquist. It authorizes the Authority enactment of this up to “issue to fifteen million dollars of and the Court cases decided since obligation bonds,” revenue “to re- special provision, the enactment of the we conclude refinance the same from time to the diversion roughly thirty-seven time,” “pledge any and to and all income of percent first annual pledge shall not ex- special from the highway fund for the pay ceed two million dollars in payments annual * * ment of bond Figuring percent *.” one cost issuance costs and interest issuance of the bonds percent and four cost contrary would be to the clear intent of the interest on the there would be people in enacting this amendment in 1940. $750,000 roughly diverted from the here, In view of our decision we find no *5 during year, the first and it necessity answering for questions the rela- “maintenance, would not be for the con- tive to the interplay between Article supervision struction and of highways and and Article § 2 and 16. We bridges of this state.” Without an amend- simply advise that it is our opin- considered provided ment such as that in the Constitu- ion that Ch. S.L. 1977 is unconstitution- phrase tions of most states which includes a al under Article as a diversion of a “including the retirement of bonds for the special highway fund purposes for other payment of such revenues have been “maintenance, than the diversion, pledged,” would be a and a diversion, substantial special high- from the of this way fund. state.” appears There to be no doubt Respectfully day submitted this 26th appropriated

funds of fi- August, 1977. nancing Authority’s bonding authority FRANCIS G. DUNN would come from highway funds. Justice Chief 15 of the Section Act refers to the state Likewise, fund. Section 28 of the ROGER L. WOTiTiMAN fund, Act to this closing refers and the Associate Justice sentence states: LAWRENCE J. ZASTROW dollars, “The sum of two million or so Associate Justice much thereof as necessary, be is DONALD J. PORTER hereby annually appropriated from the Justice Associate fund for the de- scribed in this section.” ROBERT E. MORGAN Finally, provides: 17 of the Act Justice Associate “Nothing chapter in this shall be con-

strued to authorize authority or any WOLLMAN, Justice (concurring special- board, commission, department, or other ly). agency to create an obligation of the Although agree state of South Dakota within the mean- I with the answer given ing of the Constitution.” by my colleagues respect with ques- advisory- spend public to request for funds in should tions raised be have declined respectfully only I would opinion, after adversary answered a full hear- opinion. requested render the ing. n law forth in set I have already From what said it should indeed, course, important; are, of I do clear that not consider that is unconsti- question Act in that the hold exercise powers Governor’s executive questions of part. in tutional, at least to his respect duties under the Act the Gover- regarding law considered could be solemn occasion with- however, are not nor’s meaning V, Section answering us warrant as would True, the potential the Constitution. ex- Act, Chapter 1 of the request. penditure of some fifteen dollars, that the members provides Laws of costs, with interest together might not Building Authority shall the South by all taxpayers, be considered especially membership constitute directly thereby, not benefitted those given no dis- The Governor Authority. levity rejoicing, an occasion but it matter; any- if he must do cretion that we to me trivialize seems the meaning the ministerial act of perform thing it is to if we term characterize the instant the mem- appointments. Once signing the as constituting situation a solemn occasion. duties Governor’s appointed, are bers restrict I would definition of “solemn save completed, been Act have under the to include those situations occasion” where budget reporting the matter for fisc is in jeopardy, where again, if the Act There legislature. general welfare the citizens of the state of two mil- appropriation threatened, where the maintenance appear annually, then it would lion dollars action, has no choice but order demands immediate executive the Governor annu- within his gravity other occasions of similar include such when budget legislature. Wheth- report al of our citizenry imperiled the welfare is so unconstitutional in whole or er Act us give pause not to answer that it would nothing quasi-min- to do with this has part an advisory opinion. This is *6 legislature having com- isterial act. occasion, accordingly I such an would money, manded the questions decline to respectfully answer budget. include it within his must Governor raised. Au- the members Whether the concern that question I do not thority proceed carry out their should understandably must share re- to issue bonds under statutory Act; constitutionality garding cf. is; course, most the Act a Court, 87 S.D. Opinion attempt Had an been important question. 668, nor do I overlook the 209 N.W.2d fact any taxpayer then to issue made other occasions I would have that on an- challenging in the constitutional- interested my colleagues that then swered have suit to re- Act could filed ity to answer. In re Opinion See declined could the matter strain the supra. Rather, Judges, express I these proceed- in adversary resolved have been emphasize my opinion that views suggested that has ings, a been procedure requests reserve answer to should for advis- re Opinion In other cases. See to those opinions situations in which ory 849; cf. 182 Judges, 85 N.W.2d S.D. of the Governor’s exercise Barron, v. S.D. McFarland consequences in immediate will result hav- that procedure Granted such a N.W.2d 607. ing impact the institutions of state time con- costly more would have been the welfare of the government emergency suming, the absence of an questions which involve that cannot situation, impor- is here alleged, none expeditiously through usual law in- answered ad- of constitutional tant public agency’s versary proceedings. volved opinion Notwithstanding my personal advisory opinion for an answered, because I not have been

should regarding the Court’s

agree with join portion given I answer the Act would opinion that holds that in the unconstitutional diversion of

result

highway funds. day 26th

Respectfully submitted this

August, 1977. Dakota, Acting By STATE Through the DEPARTMENT OF

TRANSPORTATION AND BOARD FOR the DIVI-

OF TRANSPORTATION HIGHWAYS, Plaintiff OF

SION

Appellant,

v. ENTERPRISES, INC., Eq- PARK

BAKEN Company, Life Assurance Jack

uitable

Devereaux, America, United States through

acting Business Ad- Small

ministration, Kresge Company S. S.

Socony Company, Vacuum Defend- Oil Respondents.

ants and

No. 11816. Dakota.

Supreme Court of South

Reassigned Jan. *7 Aug.

Decided