*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
“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