*1
Firm,
Volesky Volesky
Ron J.
Law
the current executive the South Party, Dakota Democratic filed' initia- petition Secretary tive of State’s office. The the initiated mea- According sure was Schulte. petition, voters of the State are being approve South Dakota asked to act reject “An food from proposes sales and use taxes.” (Retail ch. amend 10-45 Sales and Tax) (Use Service and SDCL ch. 10-46 Tax) adding providing sections “There exempted provisions of this computation of the tax chapter and the it, imposed by gross receipts from the law also de- sale food.” *2 The court entered an or- food. The law circuit [¶ 5.] is and is not fines what of certiorari. It granting der the writ petition designated in the is now and ordered Secre- 1.”1 Measure “Initiated county tary of State direct auditors 26, 2004, July pursuant On [¶ 3.] for the print not to ballots November 12-13-9, General de- SDCL issue re- 2004 election until the was explanation of Initiated Measure livered an solved. Secretary provided: It of State. 1 to the The court heard mat- circuit 25, 2004, August entered memo- ter on ATTORNEY GENERAL August decision and randum on issuing judgment filed its and order writ 2004 BALLOT EXPLANATION August on 2004. certiorari MEASURE INITIATED The circuit court concluded that explanation contested in the language Title: exempt An act food sales editorial statement. negative constituted taxes. and use explained: court The Explanation: explanation implies “yes” The a sales and use tax The state collects municipal and strangle vote will state Many cities and sale food. budgets. leg- speculates also municipal collect a sales and towns also will af- replace islature revenue on the sale food. use tax by the measure. im- fected ballot The negative plication is editorial and adopted, if Initiated Measure would im- speculation is unwarranted and municipal food from state proper. taxes, and use and eliminate this sales of revenue. attorney source The addition of the general’s practical effect of the initiated measure change A “Yes” will state law. vote one to the effect states of the law as it A vote “No” will leave state many practical many There effects. are is. possible other detrimental beneficial Secretary of State delivered certi- The effects. Some are obvious others copy fied true correct Initiated conjectural. Listing practical one statement, title, 1 as well as the Measure to the of others exclusion is edito- required explanation recitation rial. county 12-13-9 to each auditor on SDCL attorney past, general In the recent August 12-13-1. fray remained political has out of the Schulte, sponsor explaining measures with original revenue attorney general’s consequences. to the circuit applied Initiated Measure objected proposed repeal for a writ of He of the of the court certiorari. lottery “The “and eliminate this source of video read: Constitution legislative authorizes enactment of video revenue” He D including lottery. Amendment removes that contended authority all repeal lottery Gen- and will video the ballot authority granted by laws.” no mention that re- eral exceeded There was lottery would eliminate peal video ap- pended. full text of Initiated Measure 1 attorney- that source revenue. matters of fact and not effect. general’s explanation re- Both are editorial and improper.
peal of the state inheritance tax read: The legal effect of the initiated measure currently imposes “The State inheri- *3 which “exempt is to food from state and tance taxes. Amendment C would re- municipal sales and use taxes” is cor- any tax on peal the state inheritance on rectly negative stated. The editorial property anyone of dies on or who eliminating statement about revenue is July prohibit after and would statutory authority granted outside the Legislature enacting a tax on attorney general to the 12- under SDCL any inheritance.” There was no men- (footnotes omitted). 13-9. repeal tion that of the inheritance tax Attorney It ordered the [¶ 8.] General would eliminate that source of revenue. provide to explanation revised to the present appearance The of the “elimi- Secretary of State which omitted the lan- nate of this source revenue” guage “and eliminate this of source reve- attorney general’s Ini- explanation of nue.” It ordered the Secretary of State to tiated Measure means either the attor- provide explanation the revised ney general adequately did not explain county auditors. lottery effect of the video General and Secre- tax inheritance ballot measures or it is tary of filed a appeal notice of an editorial comment unrelated to the August 2004. county Because auditors initiative. must have official printed by Sep- ballots An example illustrates the editorial na- tember voting when absentee be- ture the remainder of the statement. gins, General and Secretary Governor Rounds has publicly stated of State asked this Court resolve the repeal the sales tax on food will issue no later than September 2004 so $42,000,000 cut taxes to the state and there print would be reasonable time to $18,000,000 (total municipalities tax briefing ballots. The expe- schedule was $60,000,000). savings According dited. After full consideration we an- Bureau, the U.S. Census the 2003 esti- today, September nounce our decision population mated of South Dakota is 764,844. Therefore, adoption of the ini- tiative would save each South Dakotan ANALYSIS AND DECISION2 Saving in taxes. no taxes is more $78.45 The full text of initiated mea- a legal passage of the initiative printed sure is not on the election ballot. than eliminating revenue. Yet if the requires: Instead attorney general’s explanation said “low- revenue,” er title, recitation, taxes” instead of “eliminate explanation, place would cast a more favor- for voting, required by and statement as light on the initiated chapter printed able measure. shall be on the bal- explanations law, measure, Both are true. Both are lot in lieu of the eonstitu- jurisdictionally General also ate to determine whether or not the challenges right of the circuit court to properly complied General with his enter relief in this matter in the form of a writ Moreover, duties under SDCL 12-13-9. cer- of certiorari. Under SDCL 21-31-1 writ of proper found to be a tiorari was method of may granted by certiorari be a circuit court addressing of SDCL 12-13-9 in jurisdic- when an officer exceeds his or her Hoogestraat. case, appropri- tion. Thus in this the writ is amendment, merely determine if the question or other
tional statutory obligations people. complied has his submitted to a vote type literary do not sit All constitutional amendments and we as some shall at an election editorial board. to be submitted on one and all initiated placed this Court con- sepa- laws measures referred whether a satis- sidered rate ballot. requirements fied attorney Pursuant to SDCL 12-13-9 “the that: We noted secretary general shall deliver to the however, has, This Court considered *4 statement, title, explana- the the state the whether ballot statement satisfied the tion, a clear recitation simple and and of which, requirements of of a or ‘No’ vote.” SDCL the effect Tes’ time, Attorney Gen- required at that the provides: 12-13-9 further prepare a “concise” statement of eral explanation succinctly The shall state purpose legal “the and each pro- the purpose legal the and ... proposed amendment constitutional effect of Constitution, posed amendment particularly with reference measure, the the initiated Herseth, 503, law.” Barnhart v. 88 S.D. referred explanation The (1974). law. shall be clear 513, 131,136 222 N.W.2d simple of the issue summary and and court noted that the lan- Barnhart words may not exceed two hundred guage “purpose legal effect” led to and ballots, the the length. printed On title explanation the conclusion that a ballot explanation shall be followed of a constitutional amendment proposed explanation followed shall be “was to be identified to the electorate in recitation. easily language enabling understood distinguish voters to this amendment deciding In matter before propositions from the other ... on the us, cannot in the debate we take a side Barnhart, 514, S.D. at 222 ballot[.]” the merits of We the ballot issue. also rejected at 137. The court N.W.2d cannot allow debate to enter vot- argument explanation a ballot must on the ing booth face of the ballot. Our educate the electorate since voters are have prior cases examined this statute as proposed presumed familiar with requires to what and what does not given through publicity amendments factually allow. must be leading up in the time amendments accurate, accurate, concise, legally must purpose to the election. Id. basic “[T]he collateral, po- not address theoretical identify aof ballot statement is to an consequences approval disap- tential amendment an informed electorate voters, by the not proval must state- Id., rather than to it.” 88 S.D. educate personal opinion ment of and must not 515, 222 at N.W.2d at 137. attempt against to advocate for or question. generally Hoogestr- Consequently expla- ballot the focus of a See Barnett, clearly, aat v. 583 N.W.2d nation is restricted. must simply, succinctly identify 421. However this and sum- within frame- work, granted Attorney dis- marize already as to author the cretion how to amendment to edu- Lan, Gormley statement. 88 N.J. cated and informed voter who has ten (1981). A.2d Moreover minutes in which 12-13- to vote. SDCL Barnhart, 9; 12-18-15; function one. 88 S.D. Court’s is a limited We taxes, municipal at 137. The sales and N.W.2d use succinctly effect that must be stated re- eliminate this source of revenue.” The fers to the result that the con- circuit court considered the “elimi- factual, stitutional amendment "will have nates this source revenue” to be Dictio- existing law. See Black’s Law held that it negative implica- but created (6th 1990). nary 514 ed It does not speculations- ignored tions and “other collateral, poten- refer to theoretical or effects, possible” whether beneficial or det- consequences may may tial which rimental. occur. initially [¶ 15.] We observe that 104, 10-12,
Hoogestraat, 1998 SD 583 proponents of Initiated Measure drafted measure, “An title act to we concluded food from sales and use taxes.” Proposed that the Consti- ponents also controlled the tutional E result Amendment “could measure, “There are exempted from the against successful lawsuits provisions chapter compu- of this and the *5 Dakota, under the U.S! Constitu- it, tation of tax imposed by gross beyond authority granted tion” went receipts from the sale of food.” The At- by SDCL 12-13-9. said that the ex- We torney ballot explanation General’s uses planation 1 both when titles Initiated Measure “An
clearly purpose exceeds the of a ballot act to food exempt from sales and use explanation. It is not a statement of in explains, part, taxes” and “Initiated Proposed how 1, Constitutional Amend- adopted exempt Measure if would food E change existing ment would law. from state and municipal sales and use Rather, conjecture it is to possible as taxes[.]” consequences change existing of a explanation goes on to state such, law. As it has no in a place 1, if adopted, Initiated Measure would explanation appearing general on the “eliminate this source of revenue.” Hoo- purely election It is a statement ballot. conjecture gestraat pos warned that as to opinion appropriate is not which collateral, potential sible theoretical political campaign and education consequences change of a law election, (foot- process leading up to the place had no in a ballot 1998 omitted). note ¶ 12-13, 421, SD 104 at 583 N.W.2d 13,
Hoogestraat, 583 of Initiated Measure 421, 424. N.W.2d however, Rather, it provides none of this. In explana- narrowly 14.] the ballot is a crafted statement of “the
[¶ case effect”, 12-13-9, provides tion that “Initiated if Measure adopted, exempt would food from of Initiated 1.3 The state Measure cause; result; agent produced by 3. While SDCL 12-13-9 does not allow an outcome; General to render a consequence.” full-blown Black's Law ballot, opinion on the face of the it does allow (6th 1990). Dictionary "Legal” ed is "legal effect” of the pertaining defined as "of or to the law.” proposal. Hoogestraat. Thus, plain meaning Id. at 892. Clearly language "legal effect” cannot "legal consequences of or effect” includes question be read out of the statute. The (footnote omitted). pertaining to the law. then becomes what is meant the statu- ¶ 27, Hoogestraat, SD 104 at tory language "legal effect.” The word J., (Amundson, dissenting). N.W.2d at 426 "effect” is defined as which is "[t]hat eye obviously lie-in guage used will proponents Initiated Measure - necessarily vary “exempt beholder and will -clearly provided, is petition sales and voter to voter. municipal to reader and from state from reader food exempting state that statutory analysis, taxes.” we would use taxes is to elimi from sales and use food with what be concerned we cannot from the formerly generated revenue nate might have should have said legislature Thus the use of taxation of food. said, say. e.g. State what it did See but source of revenue” “eliminate this phrase (S.D.1985). Galati, accurately language to neutral plain, uses here. We cannot the same is true Much of the action legal effect explain the direct with what Gen- be concerned now the initiative.4 Schulte proposed by or could have said should have said eral fail Attorney finds fault with the implied or said or what might have subject all food will be that not ure to state say. Rather we he did suggested what repeal and thus his to the sales tax language chosen must focus on the is inac this source revenue” “eliminate of how an accurate statement whether loss potential and overstates curate , changes existing initiative and its subdivisions. revenue to law. by the title is bound However Schulte circuit court ob- In addition the he, act and not the which that the absence of the “eliminate served authored, “An act to food language” this source of revenue any and use taxes” without from sales explanation of Attorney General’s ballot potential exemptions. reference lottery *6 repeal of video the 2000 by con- circuit court erred The [¶ 17.] of the inheri- proposed repeal the 2000 “and disputed phrase cluding attorney gen- tance tax means “either was the this source of revenue” eliminate explain legal adequately eral did not eliminat- of “revenue would be equivalent lottery and inheritance effect of the video The court either overlooked the word ed.” or it is an editorial comment tax measure or read disputed phrase “source” initia- effect of the unrelated out of the “source” tive.” argument and a Much of 18.]' attempt- The [¶ 20.] circuit court’s portion of the substantial explanations as prior ed to use is im- analysis in this case focus what language in precedent disputed for the by Attorney Gener- suggested or plied Amendment E. Because Constitutional be con- lánguage. cannot here al’s We challenged explanations were never these suggestion. implication with cerned on whether the expressed opinion lan- we no suggested by implied isWhat analysis court's the Attor- one 4. Under the circuit "Purpose” defined as "That which accomplish ney deprived his discre- sets before him to obtain General would be as, synonymous ... the term is explana- obtain to author the ballot tion to how object sought, an to be ¶11, ends obtained. tion, relegated see and would (5th Dictionary ed Black’s Law merely regurgitating language in the title 1991). Abridged proposed initiative. This would render raising purpose of taxation is the explaining requirement SDCL 12-13-9’s governmental purposes. Brink for revenue purpose and effect of measure Dann, 33 S.D. 144 N.W. nullity. (.1913). exempting eliminating use taxes is food from sales and this source of revenue. case language prior explanations repeating Our warrants Ban’s extensive discussion of those reasons. under 12-13-9. Hoo- proper was evaluating the statement drafted 104 at fn. gestraat, SD General ... we ac- should 421, 424 4. For at fn. the same great cord deference to [the express opinion no on the video reason we only General’s] determination not on the lottery explanations. inheritance tax law, principles basis of settled but simply observe that the use of differ- We also because of glaring inappropri- ent in a ballot does judicial management ateness of and su- language beyond not render that the au- pervision of such matters. When within thority long as the of legislatively-delegated au- explanation represents an accurate state- thority, agents’ administrative actions of how the proposed ment initiative valid, presumptively are and where that changes existing law. authority confers discretion upon those agents, their ordinarily actions will judgment issuing and order [¶ 21.] they be overturned the courts unless of certiorari is writ reversed. manifestly corrupt, arbitrary or mis- leading. can We conceive few cases MEIERHENRY, Justice, [¶ 22.] where administrative officials’ discretion concurs. necessity here, is of given broader than variety the enormous of statements that ZINTER, Justice, [¶ 23.] concurs with properly could be drafted within the au- writing. thority vested those officials. This case, being the the deference accorded KONENKAMP, SABERS and ... Attorney General must obvious- Justices, dissent. ly greater even than generally ZINTER, Finally, traditionally case. we have (concurring). Justice special shown deference to administra- fully join opinion I Court’s agents charged tive with implementing emphasize points. write three the election laws. The other basis for *7 yielding judgment to the of the adminis- First, we must remember that inappropriate- trative officers here is the scope our and standard of review is limit judicial ness of involvement. Public in ed. This Court’s of review certio- questions political often have substantial rari examining is limited to the here, drafting As of an overtones. jurisdiction authority. General’s and statement, interpretive as well as the 21-31-1; SDCL In the Matter of itself, question pit party against par- can Wrongful Payments by the made Brook- ty, against Legisla- the Executive ¶ District, 101, 16, ings School 2003 SD ture, region against region. and Furthermore, 668 544-545. N.W.2d appearance impartiality impor- of is as our standard of review on those issues judicial legiti- tant to and effectiveness “significant allows the General itself, macy impartiality as these carrying statutory discretion” in out his impossible matters will often be to duty drafting explanations. of Hoo appear impartial. Rare is the case ¶ Barnett, gestraat v. inadequacy interpretive where the of the (Gilbertson, J., N.W.2d concur justify judicial will the risk of statement ring). two principal reasons for such That intervention. risk inheres not sim- Gormley deference were set forth in v. alternative[,] ply proposal of an Lan, 26, 38-39, enjoining 88 N.J. A.2d 525- as well in the mere of the but Either not a “recitation of the
use of statement. is readily perceived by one side or [purpose can of a ‘Yes’or ‘No’ legal] effect See, as both to their prejudicial Barnett, the other vote.” ¶ to adver- partial cause and that of their 104, 8, 12, at SD 423-424. sary. contrary circuit court’s conclusions are a distinction (internal omitted). perceived based be Id. citations tween initiated measure’s effect Although deferential stan- [¶ this 27.] However, practical and its effect. that is of review is no to retreat from dard shield distinction without a difference. The duty appropriate our constitutional practical effect of this measure is to case, proves the rhetoric case this repeal a tax that and remove source of .Thus, reasoning. wisdom of Lan’s settled government’s revenue from the coffers. law discretion on General’s Only hyper-technical parsing of words judicial man- inappropriateness and the suggest could that the measure does not agement explanations of ballot both re- affect legally sales and use tax law.5 Fur quire Applicant’s that we decline invitation thermore, the prohibition circuit court’s to ultimate scrivener this become any reference to the word “revenue” fails statutory the remaining provi to consider point I also write to out that give that sions General au Applicant’s position fatally inconsistent. thority explain “purpose” go expla- that should unnoticed this measure, including initiated only three long, nation is sentences “of the issue.” “Reve objection raises no Applicant first certainly nue” is mea two sentences frame issue sure, and it is unquestionably part of the state, many indicating that the as as well issue. towns, cities and “collect sales use tax A Applicant reading on the sale of food.” common sense objects part explain- Attorney of the last sentence reflects that ing passage issue, explain would it does no more than as .measure. eliminate this source of revenue. Howev- well
er, incongruent suggest it is that it is the initiated will have on measure explain one, unlawful but not Therefore, both tax provisions law. when all related matters issue. Stated rhetori- considered, the Attor- cally, explain how can it be lawful to that a ney statutory his did not exceed collected, tax explain but unlawful to authority. . *8 of a passage
that
new law will eliminate
SABERS,
(dissenting).
Justice
that source of revenue?
time this
Finally,
[¶31.]
last
Court ad-
my perspective,
[¶
it
29.]
an Attorney
dressed
General’s
logic
defies
and common sense to conclude
ballot ex-
planation,
majority
that the “elimination
of reve-
author of the
of this source
proposed
opinion recognized
nue” is not a “result
[
that
tremendous
re-
]
will have
law.”
sponsibility
amendment
this Court and
“At
stated:
equally
is
nonsensical to conclude that
here is
impartiality
integri-
stake
and, (2)
nothing
budgets,”
"speculates
Legis-
There is also
in the text of
that
this
justifying
explanation
replace
the circuit court’s con-
lature will not
the revenue.” Had
(1)
(or
explanation
implies
implication),
clusions that the
there been such
strangle
yes
municipal
a
vote "will
would be a
state
this
different case-.
voting
simple summary
v.
of the
ty
may
booth.”
issue and
Barnett,
104, ¶18,
1998 SD
583 N.W.2d not
length.”
exceed two hundred words in
(Gilbertson, J.,
In-
concurring).
Id.
deed,
things
other
as cher-
there are few
necessary
government
ished or as
for our
explanation
identify
“is to
an
voting.
as the act of
To aid in this awe-
amendment to an informed electorate rath-
Legislature has
responsibility “[t]he
some
er than to
it.” Hoogestraat,
educate
fit
on
people
voting
seen
to assist the
¶
104, 11,
(quoting
SD
504
(3) concise; existing have law.” Id. ment will less ¶ on how remarking 12. Rather than the (4) consequences; address collateral repeal of food tax would ef- proposed the (5) consequences; address theoretical law, General’s fect the (6) potential consequences; address to the finan- explanation directed attention (7) personal possible statement proposal the “pocketbook” cial or effect and, opinion; if the adopted would have voters (8) ques- advocates the ballot against under impermissible This is the State. tion. statutory framework. words, eight all of the In other fails on In comparison, other states factors. statutorily impact to have authorized fiscal disagree completely I with the 35.] [¶ in a ballot sum- provided the voters majority opinion application of on its the mary considering proposed amend- when to these facts. im- law Proposed Initiated Constitu- ment. See allows General to permissibly the Concerning tional Amendment Unsafe beyond purpose” the “basic of the ballot go Environment, 1031, P.2d Workplace “identify an explanation which to amend (Colo.1992).6 However, recog- as we rather ment to an informed electorate than Hoogestraat, Dakota’s nized South stat- 104, Hoogestraat, to educate it.” 1998 SD utory system Hoogestraat, is unique. ¶ 11, regard, at 424. In this 583 N.W.2d ¶ 104, 9, 583' at SD reasoning majority opinion relies the the solely ex- Attorney General is limited heavily upon the rationale of the lone dis the plaining the approve disputed in that case to the senter simple with clear and recitation. proposal “legal Hoogestr effect.” See including matters out- By aat, 583 N.W.2d “purpose the the side (Amundson, J., partic This is dissenting). amendment, proposed effect” of the the po that ularly perplexing considering explanation was unwar- majority which the sition author statutorily prohibited. ranted and We are join opinion rejected. did not not to concern the merit of ourselves with amendment, this that is the busi- case, In this Gen- Likewise, the ness of the electorate. At- Secretary of State contend that eral torney General cannot interfere “eliminate a source of revenue” by intentionally business of electorate the direct explains legal effect of unintentionally bending partisan However, initiative. posed recog- we have explanation.7 sides in his ballot “the nized that direct must succinctly accept if stated refers result Even one were to majority opinion’s constitutional amend- determination instance, official 6. Even with inclusion of such financial 7. For the Governor's state- clear, against ment the initiated measure filed with “must be information Secretary of concise, State and contained impartial, true and must not exclusively on the record focuses almost loss argument, likely consist of nor be such as to “funding crisis” of revenue should against prejudice, create either for or certainly n measure.’' approved. the measure be It is Title, Ballot Title and Submission prerogative of the take a stand Governor to Approved September Clause P.2d However, issue. is not the Likewise, (Colo.1992). Da- job any political General's view reinforce nothing kota's voters deserve less. by wording *10 (N.J.1981). reference to the effect on revenue is some- Only with the omission of permissible, factually, disputed the how the provision offensive will the ballot ex- portion of the ballot is incorrect that it planation become narrowly concise and tax, indicates that food as a source of required by 12-13-9, crafted as is revenue, would be “eliminate[d].” Howev- or accurate. er, exempts initiated the measure certain I dissent for all of [¶ 41.] these rea-
foods from the effect of the proposed mea- sons. sure, making them example, taxable. For A postscript Attorney Larry General term, food, “the does not include alcoholic Long: tobacco, drinks, beverages, candy soft In words, [¶ 42.] at prepared paragraph In foods.” other Justice Gilbertson said: “At stake here is word “eliminate” is inaccurate and the impartiality integrity voting “modify” word would be accurate. Hoogestraat, booth.” regard, Attorney General’s statement Although he ap- is inaccurate has misleading. mind, parently changed his it is not too Nevertheless, majority opin- [¶ 39.] you right thing. late for to do the ion faults the drafters of the measure for specifying not more in their title concern- You an advantage [¶ 43.] have won for ing exemptions. of your While authors party, political advantage. you But title, measure drafted Attorney are the for people all the title, must be remembered that this awas Dakota-your job is to measure, part parcel of the entire fully faithfully perform the duties of which included the definition of “food.” the chief law enforcement officer in the The majority opinion removes the title State of South Dakota for all of people. context, from its faults the for drafters I encourage you remove the defining title, words and then shifts offending language from the ballot and the the burden of providing adequate expla- voting booth. right thing Do the for all General, nation from the par- people of South Dakota. ty statutorily required accurately measure, fairly explain the to the drafters. KONENKAMP, Justice, joins It is not the fault of the drafters that the dissent, for except postscript. explain General did not the term “food” the factual and sense was APPENDIX Yet, used within this context. this is something that logically would more have INITIATED MEASURE been within the man- The following initiated measure was to explain “legal date effect” of the posed by petition for submission to the proposed measure. Apparently, this was voters. This initiated measure will not secondary to impact on revenue. approved by become effective unless ma- The circuit court properly rec jority vote. ognized that the General’s ballot explana crossed the line from Initiated Measure I advocacy. tion to Even if the An Title: act to food from sales accurate, General’s statement were “it use taxes. accuracy of an [would be] advocate.” Lan, Gormley v. 88 N.J. 438 A.2d Full Text of Initiated I: Measure *11 any preparation not candy, vot- does include WE, qualified THE UNDERSIGNED require containing flour and does not re- Dakota, petition the state of ers of South frigeration; following submit- proposed law be that the of South to the voters of the state ted “Prepared any: food” general at the election on Novem- Dakota (a) Food in a heated state or sold rejection approval 2004 for or ber their seller; by the heated of pursuant Constitution (b) ingredients Two or more food Dakota. The substance of South by the for mixed or combined seller sale law is follows: term, prepared single as a item. food, in this does not subsection include by of Dako- people Be it enacted cut, repackaged, or food ta. seller, fish, by eggs, pasteurized An act to from exempt food meat, poultry, containing and foods
sales and use taxes. requiring raw foods cook- these animal by the as recommended ing consumer 1. 10-45 chapter That be Section by Drug Food Administration in by adding thereto a NEW SEC- amended 3, part of its Food chapter 401.11 Code to read as TION follows: January prevent as to as of so exempted provisions There are from the illnesses; borne or food of chapter computation and the (c) eating Food sold utensils it, by imposed gross receipts tax seller, by including plates, vided of food. the sale knives, forks, spoons, cups, glasses, nap- § Section That amended kins, not plate or straws. A does in- by adding thereto four NEW SUBDIVI- or used to packaging clude container to read as follows: SIONS transport food.
“Food,” any ingredient,” “food sub- chapter 3. That 10-46 Section stance, concentrated, liquid, whether by adding amended thereto NEW SEC- solid, frozen, dried, form, dehydrated or TION to read as follows: chewing for ingestion by is sold or provisions There are from the exempted and is for its taste humans consumed or chapter computation of this and the term, food, nutritional value. The does not it, imposed gross receipts the tax tobacco, beverages, include alcoholic soft from the sale food.
drinks, food; candy, or prepared § Section That 10—46-1 be amended drinks,” nonalcoholic any beverag- by adding
“Soft SUBDIVI- thereto four NEW contain artificial to read as follows: es that natural or sweet- SIONS drinks, term, does eners. soft “Food,” ingredient,” any and “food sub- any milk beverage include that contains or stance, concentrated, liquid, whether milk products, soy, milk rice or similar frozen, solid, dried, form, dehydrated or substitutes, greater fifty or percent than chewing ingestion is sold for volume; juice by or fruit vegetable and is for its taste humans consumed food, term, nutritional value. The does not “Candy,” any sugar, hon- preparation tobacco, beverages, include alcoholic soft ey, or other natural or artificial sweeteners drinks, food; candy, or prepared chocolate, fruits, in combination with nuts drinks,” ingredients flavorings any beverag- or other nonalcoholic “Soft bars, term, artificial drops, pieces. es that contain natural or sweet- form
eners. The soft does not Appellant, any beverage include milk contains or soy, milk products, rice or similar milk substitutes, greater fifty or than percent of CHIROPRACTIC, INC., DETERMAN vegetable juice volume; fruit by or Appellee. Defendant and “Candy,” any preparation sugar, hon- Nos. 22976. ey, or other natural or artificial sweeteners chocolate, fruits, in combination with nuts Supreme Court of South Dakota. or ingredients flavorings other April Considered on Briefs 2004. bars, term, form drops, pieces. candy, does not any preparation include Sept. Decided containing flour and does not require re-
frigeration;
“Prepared any: food”
(a) Food sold a heated state or seller; by heated (b) Two or more ingredients food by mixed or combined the seller for sale single term, as a item. The prepared food, in this subsection does not include cut,
food that repackaged, pasteurized by seller, fish, eggs,
meat, poultry, and foods containing
these raw animal foods requiring cook-
ing by the consumer as recommended Drug the Food and Administration in
chapter part 401.11 of its Food Code January as of prevent so as to illnesses; food borne (c) eating Food sold with utensils seller, vided including plates, knives, forks, spoons, glasses, cups, nap-
kins, plate or straws. A in- does not
clude container or packaging used to transport the food. The effective date of this repeal will be
July