175 N.W. 359 | S.D. | 1919
This is an original proceeding by mandamus in the court to compel defendant, -Reeves, as state auditor, to issue to plaintiff a warrant upon the state treasurer for payment of the sum of $7,000 pursuant to an act of the Legislature (chapter 39-, Laws 1919), which reads as follows:
“Sec. 1. ' There is hereby appropriated the sum of seven thousand ($7,000) dollars for the relief of G. E. Mackey, and to compensate him for injuries receivedl while in the militia, service of the state of South Dakota. The auditor shall issue a warrant upon the state treasurer for the above amount to the said G. ■ E. Mackey upon his presenting a voucher therefor and a receipt for said warrant.”
-Defendant demurs to the writ bn'the ground that it fails to state facts which entitle plantiff to the relief demanded. .The writ recites the' act of 'the Legislature, 'the presentation to the auditor of a voucher for the sum named in the act, a receipt for the warrant demanded, and the refusal of the auditor to issue the warrant, on the ground that the act is in contravention of certain provisions of the state Cohstituton. '
“Neither the state "íiór>- any county, township or municipality ‘shall loan’ or give its credit or make donations to or. in aid-of any individual association or' corporation, except for the neces'sary' support'of -the 'poor,' nor subscribe to or become -.the-owner of the capital stock of'any-association or-corporation,.-nor pay or become responsible for the" debt-or liability of any' individual, association or corporation; provided;-that the-state may assume or pay such debt'or liability when incurred in> time 'of" war -for the defense of thé state. *' * *” ' - ;
The section substituted in 1918 reads as follows: •
“.Sec. 1. For the purpose of developing the resources and improving the economic facilities of South Dakota, -the - state may engage in works of internal' improvement, may own and conduct proper business enterprises, may loan or give its credit to, or in aid of, any assocátion, or corporation, and may become the owner of the capital stock of corporations, organized for such purposes. But any such- association or corporation shall be subject to regulation and control by the state as may be provided by law. No money of the state shall be appropriated, or indebtedness incurred for any of the purposes of this section, except by the vote of two-thirds of the members of' each branch ‘ of the Legislature. The state may also' assume or pay any debt or liability incurred in time of war for the defense of the state. The state, or any county, or two or more counties jointly, may establish and maintain a system 'of rural credits and thereby -loan moiiey and -extend credit to' the 'people of the state upon real estate security in such manner and¡ upon such terms and conditions as -may be prescribed by general law.”
'Stated in another form, the allegations of the writ are that plaintiff, while in the militia service of the state of South Dakota, received injuries, and that the Legislature has appropriated the sum of $7,000 for his relief, and to compensate him for such injuries, and that the auditor has refused to issue a warrant for the amount so appropriated, on the grounds: First, that the Legislature is without power to appropriate money for other than a public purpose, and that the appropriation alleged, on the face of the writ, is an appropriation for the benefit of a private person; second, that the act is special legislation violative of the state Constitution.
Section 9 added to article 13, pursuant to chapter 2, Special Session 1916, declares the maintenance of good roads and the supplying of coal to the people of the .state from lands belonging to the state to 'be works of necessity and importance in which the state may engage. The amended section 1 of article 13 was adopted pursuant to chapter 163, Laws of 1917. At the 1918 Special Session other amendments to article 13 of the Constitution .were proposed by the Legislature and adopted by the people in connection with section 1, supra. Sections 10 and 11 declared the manufacture and distribution and sale of cement and cement produces to be works of necessity and importance in which the state may engage. Sections 12 and 13 declared the manufacture, distribution and sale of electric current for heating, lighting and other purposes to be works of public necessity and importance in which the state may engag-e. Sections 14 and 15 declared the mining, distribution and sale of coal to be works of public necessity and importance in which the state may engage, and section 16 declared that the state may engage in works of internal improvement, any provision in the Constitution, or limition in section 2 of article 13, to the contrary notwithstanding-. Each of these amendments authorizes the Legislature to enact laws under which the state may engage in the enterprise named by a two-thirds vote of the members elected to each branch of the Legislature, and places certain conditions and limitations upon the indebtedness to be incurred.
In State ex rel. Morris v. Handlin, 38 S. D. 550, 162 N. W. 379, it was held that an appropriation of public moneys to be paid to members of the militia regiment known as the Fourth South Dakota Infantry, for the “purpose of encouraging' military
The distinction between the appropriation and expenditure of public funds for a public purpose and the appropriation and expenditure of public funds for a private purpose for-the benefit of a private person is clearly contemplated and maintain throughout all the various amendments to the Constitution above, referred to, and it seems perfectly clear that nothing- contained in article 13, as amended, was intended to repeal or modify the declaration in section 2, art. 11, that “taxes * * * shall be levied .and collected for public purposes only,” even though the prohibition against donations contained in former article 13, § 1, was not specifically renewed.
“It * *. * was not made as a gift, nor from motives of charity, * * * but it was made on the ground of and because it was beneficial to the people of this state for purposes • of protection to the public.”
' We also pointed out that decisions based on the same principle had sustained appropriations for services of fire companies, also bounties for soldiers or their families, as inducements to encourage enlistments and also as inducements to faithful service after enlistment. If the recipient of the bounty, and the act past or prospective, for which the bounty is given, are such that the granting of the bounty — whether.it be considered a donation or compensation — will necessarily tend to promote the pubic
Suppose the Legislature had passed an act providing that every public officer of the state should receive a specified amount to compensate him for injuries received while holdng public office. Is it not clear that an appropriation pursuant to such an enactment would amount to an appropriation of public funds to a use other than public purposes, because, in its very nature, it would constitution an appropriation for the benefit and use of such officer, and would in effect be merely an appropriation of public moneys to insure against injuries received while in public office? It is difficult to see what distinction could be drawn between such an enactment and the one before us,’ which appropriates public moneys to compensate' plaintiff for injuries received while in the militia service of the state. Had the writ recited that the appropriation was to compensate plaintiff for injuries while in the discharge of his duties as n member of the state militia, the question presented would be more complicated and of much greater difficulty.
We are constrained to hold that upon its face the writ fails to show an appropriation for a public purpose, and that the demurrer to the writ should be sustained.. It will be so ordered.
