*1 city recall filing municipal petition, and the duties (section 6332, auditor under recall statute Rev. Code 1919) out in the in the Case. pointed opinion Leyse writ will be The granted prayed application. office, and, will be filed defendant in her petition unless prevented action interested within by appropriate parties law, the time -by county allowed the same will be certified to the auditors submitted general electors the next election. RUDOLPH, WARREN, J.,P. J., concur. ROBERTS, JJ., concur in result.
CAMPBELL BOTKIN, Plaintiff, v. MORRISON, ex rel Secretary STATE
State, Defendant. (249 563.) (File 1933.) Opinion No. 7582. June filed *2 Pierre, for Q. Kennebec, Wagner, of of Sharpe, M. B. B. Plaintiff. T. General, Drewry and R. B. Conway, Attorney
Walter General, Eastman, for Defendant. Attorneys Assistant B.
ROBERTS, in mandamus original proceeding is an This and file a secretary petition receive of state to compel to 184, an act en- being 1933, the referendum of Laws chapter for Incomes, titled, “An Tax Gen- Providing Act on Gross Imposing a Assessment, Collection and Distribution There- erally Levy, for the ; Act, for for Measures the Enforcement Regulatory Penalties Violations Exemptions, for Providing Imposing for Act, Section Repealing the Provisions of the 7922 1919 Dakota, Chapter of the Session Revised Code of South of South Dakota of 1919.” n An The declined to file the alternative petition. respondent issued, General Attorney ap- mandamus been having writ of the alternative quash behalf of moved to respondent, peared writ, complaint and relator and demurred to' the affidavit of constitute a that no were sufficient ground on the facts stated to by way relator relief of mandamus cause of action or to entitle to or otherwise. legislative
The whether this question one be determined is to Within subject exceptions enactment to referendum. to are, first, as of referendum such laws are declared the act right itself to be for the immediate necessary preservation public state; second, health, and, safety laws such peace, necessary existing for the state and its support Const.; 1, v. Hodges institutions. Section article state public Snyder, W. The act under considera- D. S. 178.N. that a tion a tax on imposing providing portion incomes fund and general collections therefrom shall be credited fund income common the balance the interest and school concededly for the and its state is of the state institutions, contends, deci- but the relator relying upon of this ex Wegner sion rel S. D. In that for necessary purpose. the act is not case the of whether an act for a providing registry tax on motor was the reserved excepted vehicles right considered. act expressly provided was levy against real and personal property pro- shall reduced in to the amount tax portion collected under such statute. This designed court held that shift being portion general use general fund purchasers necessary automobiles of the state govern- ;ment test in whether or not a law determining for such purpose what will be effect on the if *3 is until a vote can taken what will the if suspended or effect defeated; it finally is that while the act was intended to raise reve- nue, revenue, the and of support government dependent upon the revenue, it did not purport increase but that expressly provided so; it should not that do and actual of support government the the by would be unaffected the delay defeat the possible of measure rendering subject the act to the referendum. 1, chapter
Section of "It is Laws reads as follows: expressed as the intent the hereby legislature of the entire income derived tax imposed the on Gross Incomes the by provisions of Xo. 101 Senate Bill the passed this session of legislature approved by and the Governor [chapter on--1933 shall, in 1933], use, its distribution and a operate relief, direct heretofore, replacement reduction in tax the now and hereafter imposed the taxable upon against of property state, and the supervision authorities of having levying taxation directed to eliminate specifically required or reduce property tax levies the full extent revenues by made available collection imposed tax said act.” by The argument of relator statutory is that reason of this provision no additional will be that within revenues collected and in holding Pyle of this Case under statute consideration not necessary the support for of the state govern- The quoted ment. effect of the section cannot distinguished in any controlling particular from the replacement section consid- ered in that case. Pyle presence Case that in the
The declaration in itself measure revenue in a replacement provision so-called a merely provides that the every instance the fact establishes gov support tax burden and shift for a may not an act Though unsound. unaffected is ernment will be revenues, circumstances facts and additional be intended to produce measure revenue such a enactment of render the nevertheless may Legislature government. of the state for may have concluded facts to have determined the presumed the burden conditions reason of economic present been If a has point relieved. must be general property partially cause defaults are burdensome levies attained where result, taxes personalty realty in tax and sales of payments revenue, but additional securing not consist in necessity may shriveling pres preventing amounts and maintaining Legislature is afforded Opportunity ent sources revenue. itself such that it availed conclusively presumed and it must be facts, determination of determine the opportunity ques of the law has determined facts and the passage this court the For necessity tion itself the affirmative. Con legislation. expediency is not one of wisdom or the state an act for the necessity ceding subject whether it is determining scope beyond extend question, inquiry would not *4 must every judicial presumption reasonable knowledge of necessity legis of the the determination of the indulged favor of nature, dis necessity inquiry upon In inherent an as "to lation. its ordinary legal of the beyond application facts would extend puted may that court not must be exercised this caution principles, We convinced within scope legislative powers. encroach the of within of the contemplation provision the of the that determine Constitution not intended that court should it is the controversy necessity as of a statute for factual differ, state, that this may reasonably minds upon which Legislature. may judgment substitute its for necessity face A not exist upon contradiction of does the incomes to companion appropriating of the act and tax, which collection of the and from other facts derived from the judicially say notice we cannot that the act is necessary for the state exist government not and its ing public Washington institutions. As Court of Supreme Wash, Hinkle, case P. 535, 537, consid ering for the enactment of a necessity reorganizing statute government, said: “But resolve the departments state problem, obviously immediate .intricate nature complicated its requires the exertion and an application expert amount knowledge, experience, judgment, necessarily without the scope and, restricted doctrine of we have knowledge, commanded, intimated, properly only Legislature.” The motion to there- quash alternative writ of mandamus granted and complaint demurrer to the is sustained. POLLEY, J„ concurs.
CAMPBELL, specially). The or (concurring expediency economic or social wisdom of the income law or questions of whether will make fair for a more and equitable citizens, distribution our among tax burden whether it or or will accomplish can good are mat proponents predicted, with which ters concern this court cannot itself. The responsi bility for the questions determination those was assumed Legislature enacted the continue remain law must to. with rest It Legislature. entirely conceivable-that objections constitutional might urged (whether 'be successfully or not) against the against as whole or various portions- or Cf., thereof. provisions for example, Winter v. Barrett (opinion May 441; filed Ill. 1933), N. E. But no such matters are before this court in the present proceeding.
The sole judicial question now for decision whether or law “necessary for the immediate preservation health or peace, safety, support and its institutions,” existing public within the art. meaning section Const. S. Dak. and, The statute carries no clause emergency event, it any hardly would urged it was health, immediate preservation public peace, safety. Our *5 analyzes inquiry therefore down this: necessary to the Is statute for the support government state in- stitutions within the meaning of the constitutional provision? provision in the constitutional “necessary” I word think the I mere facts be do no think disregarded. should by was enacted government is for the support statute the beyond possibility conclusively and establish Legislature support necessary review that the statute was in by I this court think result arrived at government. the state 280, D. rel v. Wegner ex S. State deliberation, I correct, but, do not now study after further in that set forth reasoning opinion. all or language adhere to for the Legislature an act passes When the and the referendum institutions government existing public or its thereon, question I believe a judicial to 'be invoked sought should necessity question as to the the act. That presented determined, in ex rel v. Wegner in my judgment, as stated State D., N. con- 226 W. Pyle, supra, page S. re- delay incident to “the such sidering upon effect I if consequences, the law the law is defeated.” ferring determination, court, in gen- believe that making ought erally legis- to resolve in favor necessity contrary act think quite plainly appears. lative unless in contrary clearly did of all the facts very appear light however, think, ex it Pyle. rel now that was Wegner Case, assume, to did apparently Pyle fallacious assume that the mere the láw a clause” such presence “replacement in that law with refer- as was contained such as is contained (and act, present ence law in the companion chapter substance, whereby, in authorities are 1933) taxing “specifically directed and levies to required property eliminate or reduce the full extent made revenues available collection case, imposed by every the tax act” sufficient said without more, to demonstrate that the new tax imposing merely burden pro shifts tanto the of taxation and that (as it been in supported past) continue has whether present such shift made not. At the time and under present conditions, that, if tax economic seems to possible entirely rates, an levies are continued at property appreciable may pay number of owners be unable to taxes property taxing districts be unable realize amount revenue from the taxed either sale thereof *6 to others if or income bid in district. On the other hand', if bjr levies on can be reduced property some other sort tax, the burden may of which differently distributed and will frequent incidence of which be more but require will smaller time, any at payments equally entirely one its is that possible taxes levied at somewhat lower will be real- rates or paid ized to an It appreciably greater extent. is the one possible within years case that two revenues be or become inadequate may for governmental and it purposes possible is that the other case they may I adequate. say continue do not that either of I possibilities necessarily actualities, these would become nor can all, if predict much, how at the operation of the tax law income may situation, exist, improve the but so as long possibilities these I exist, as they believe do am not willing hold that there any facts proper judicial notice whence court can declare this case “it plain is government be unaffected in any manner” the referendum tax law. income do not believe this court can say, or should determination, matter of that this law the time present is not “necessary for the the state and its government existing public institutions.”
I therefore concur in the subject view that the not is referendum and that the alternative writ of should mandamus quashed.
RUDOLPH, P. (dissenting). definitely This court com- mitted itself to- certain principles regarding case of State ex rel Wegner S. D. 226 N. W. That case was considered evidenced the fact carefully that the decision was aby majority of the court with bare two the judges concurring in dissenting It opinion. is my opinion case, that the Wegner-Pyle Case controls the result and I am not now inclined to depart from the principles deliberately established in that case.
The Pyle Case that if any part established constitutional strictly to be provision construed it reads exception, “except may such laws as be necessary for the immediate preser- health, vation of peace, safety, public, support of the state outset, existing public institutions.” At the that, ap- it clearly unless with the premise start therefore the support under consideration pears the exception. within fall government, of the state does *7 the act of passing the the “that suggestion Legislature in denounced thereby necessity” expressly determined its law Case. Pyle the between feature replacement
I see distinction the can no valid Pyle 'Case under in the in law consideration contained the chapter 185, in of feature contained Laws replacement the 1933- in law, the majority feature of the the of court of Speaking this legislative Pyle express Case “It is an declaration the said: the law and unmistakably the purpose intent which discloses * * * intended While it to raise its enactment. is reason revenue, dependent upon and the is the revenue, revenues, but expressly not increase purport does to that it shall not do provides so.” therefore, have, Pyle
In express this case in the we the as Case necessary to the effect that law is declaration the legislative in mind support of the state government. Keeping which must be exception provision it is the in constitutional strictly clearly construed that it must that the present appear before meaning law within there exception, anything is express court which time overcome declaration contained in legislative chapter section in for the to effect that fact not I there am of government? opinion state not. This cannot notice guise specu- under in the future a being paid late there suffi- possibility required amount and other taxes general property cient taxes government. dec- to be run the The act contains no paid laration effect that the future collection Legislature taxes, law, independent meet would insufficient to government. the needs of What such declaration legislative effect 'have in manner an Suf- any opinion. would do not now express is, say nothing ficient to that without declaration there manner any before this court which payment establishes. meet government. of future taxes will be insufficient to the needs of only any is there an in the Not absence act of such declaration to, but, hand, referred
just the other dec- express have i, laration section chapter 185, referred to. above I am of the writ opinion should granted. WARREN, Being share in the stated unable to views majority deem it not but opinion, only my privilege, my duty briefly my also note dissent.
The constitutional provision herein involved is ar- section Constitution, ticle our part material reads as follows: "The power legislative of the state shall vested legislature which shall consist of a senate house of representa- tives, except that people expressly reserve to themselves measures, right to propose which measures the legislature shall state, enact and submit to a vote of electors of the and also the right require that any laws which the legislature have *8 be enacted shall a submitted to vote of electors of the state effect, going before into such laws except preservation immediate safety, health public peace, support of the and its institu- ” * * * tions.
Our state pioneered initiative and referendum. Many states have followed. Considerable criticism has been leveled at measure and much has been said against both for and it. This previous has in reviewed the historically decisions and also the standpoint of its being safeguard people. to the Nothing gained by "areview the works decisions, economics, and views text-writers other writers who have thoroughly discussed the merits of the initiative and referendum.
The people of Dakota South have reserved unto themselves certain rights by and powers through and said initiative refer- except endum in certain instances and-'I shall treat the political wisdom of the powers have reserved them- people unto selves. Session of Legislature, after dis- considerable 1933
cussion and after quite struggle, abandoned' various proposed tax measures and selected income passed present gross law by majority. tax a bare Chapter imposes South Dakota Session Laws 184 1933 assessment,
taxes on provides incomes for the levying,
353 collection, thereof, certain other and distribution contains provi- sions, and certain sections laws. repeals statutory of our
Chapter by which is act ex- chapter is followed an 184 185 title as: from Gross pressed ‘‘Relating Proceeds Derived Entitled, An Money Tax. An Act Income Act Appropriating the Taxation Adminis- Accruing Through of Gross Incomes for tration and in Aid of Common Expense Schools.”
Section “It ex- Chapter hereby reads as follows: intent legislature as the income de- pressed the entire rived from the tax by on Gross Incomes imposed provisions Bill No. passed legislature Senate session of shall, by approved the Governor on-- in its distribution relief, use, direct operate as a and reduction replacement heretofore, tax now and hereafter imposed upon against state, taxable property having super- the authorities vision of levying property specifically taxation directed and required to eliminate or reduce tax levies to full property extent of the revenues made tax available collection by said imposed act.”
It will observed that it mandatory the authorities having supervision of the levying of taxation property to' specifically eliminate and reduce tax to the full extent levies made revenues available the collection of the imposed said act of Bill No. Senate 101 which Chapter Session Laws. *9 used,
The language made, the references one and the recital in and specifically naming, numbering, referring to other seem indicate that it to was intended carry to out to purpose and furnish the machinery, with which to income tax put into operation statute and carry to out its even provisions unto funds In replacing through collected other forms of taxation. words, other the two chapters should read and construed to- gether with like force though and effect em- Chapter was 185 bodied within Chapter The practically unanimous and an- 184. weight nounced opinions so hold in construing statutes of similar All statutes in import. materia are to read and pari construed as if together they formed part same statute enacted at were time. The same two statutes in were
354 Chapter being approved Legislature.
enacted same 184 6, 3, March Chapter being approved March 1933, 185 1933. in subject. materia. matter or Upon “In same Statutes pari Dic together.” (Bouvier’s materia are to be construed pari Law tionary. ) early placed in an Supreme
Our territorial Court decision Hand, Territory rel v. a construction on statutes in ex McKinnis 1 685, Supreme Dak. our state 419, (444), 426 46 255, 740, in Finch v. D. 68 N. W. Armstrong, Court et al S.9 For upholding rule. further authorities followed same cited, 1042, 620, see C. therein page rule cases § 25 59 Hemmer, 1060, S. U. and U. v. Ruling Case page Law § 241 must chapters Ct. 60 The two S. Ed. S. L. 36 together. taken and construed whether question presented petitioners
The vital have the law referred under section right have an inalienable Constitution. of article South Dakota written'by in the late Burch Judge This court a decision pass- Chapter registry Session Laws ing upon providing- vehicles, title, motor issuances certificates pro- tax, rel Wegner for the of said in ex v. viding collection State 280, 284, Pyle, 226 W. held that the referendum S. D. N. Very opinion. can be was in that little added what said applied. Practically every matter in the case argued and contended for Pyle, in v. No reason Wegner supra. urged bar was considered by the case has me to impressed defendant sufficiently Wegner v. contend expressed the views as change controlling- what said therein is the case at bar. b)r At1 able and briefs both the learned very arguments presented counsel for General and his assistants learned torney highly appreciated. appreciate efforts plaintiff counsel, but in view fact that court so ana- thoroughly and identical rel lyzed and reviewed similar matters ex State unnecessary I feel further Pyle, supra, review Wegner law before us. the facts and rel attention has been called the decision of ex
My *10 N. A 733, D. W. Coyne, 493, perusal v. Shade S. fact statute which was before this that case discloses measure, a tax in that under but case the statute consid- any language. eration did not contain so-called replacement excerpt Coyne at following point perti- Shade v. seems nent. every “It fixes license class motor fees vehicle is permitted on the operate highways of state. The aggregate of a very such license fees is considerable amount it annum. While claimed per large is true as that a plaintiff by portion of this revenue is now being provisions collected under laws, existing it is also time that license fees as many increased, in the materially named existing and some classes vehicles that are not taxed all under existing law are list, added to taxable that the law in question so increase extent, therefore, to a greater revenue or lesser law in respect, question is different from chapter its face could not already increase revenue laws, for in provided but existing only was intended to- replace revenue then being raised from existing laws. State v. Pyle, 55 S. D. 226 N. W. 283.”
Prom the it foregoing quite apparent that the case of Shade Coyne v. cannot held ‘the applicable to matters at issue in this case. In fact that' decision out points differences of in controversy the matters in State ex rel Wegner Pyle, clearly shows the distinction between the statutes involved in two decisions. The case at bar therefore should governed what we said in Pyle, State v. supra.
It fair to assume that the Legislature had in mind de- relating cisions to the referendum expressed in State v.
supra, and that because of the replacement feature contained in section of chapter the law would referred to the people for their approval consistent with disapproval powers re- tained people through the referendum expressed Constitution. our being
There language no expressing an within the emergency statute, and emergency no clause being attached thereto and having passed by been a bare majority, being there com- panion chapter, 185, specifically stating there shall be re- heretofore, in the tax placement a reduction now hereafter imposed upon state, taxable against am *11 being neces- that it within the exception
unable to comes agree and its sary the immediate institutions. existing public Pyle, supra, appli- Wegner ex rel
What said now before the law in this case. In it we said: “We have cable Legislature requiring declaration express us an by levy taxation of revenues now derived the new revenue derived from source. in the amount of the reduced effect appears the enactment intended on the face of Thus to- have resort other declaration. We do Legislature’s proof.” unto themselves reserved firmly people believe such as this and light pass upon a measure
referendum given page within the of the definition purpose it comes Initiative, issue, Referendum & Recall: 43, September Vol. defeat system by will can provide people “The referendum detrimental majority prove which a believe legislation scope not believe that the restriction of the interest.” do majority opinion as construed in provision referred right such a law contemplated by its framers. The to have writ for should applied Constitution. The guaranteed issue. IN ex rel MUTUAL
STATE THE NORTHWESTERN LIFE Plaintiff, COMPANY, CIRCUIT COURT v. THE SURANCE AND WITHIN CIRCUIT OF THE SECOND JUDICIAL al, COUNTY, Defendants. et FOR MINNEHAHA 631.) (249 July 1933.) Opinion (File filed No. 7572.