Apa v. Butler

2001 SD 147, 638 N.W.2d 57, 2001 S.D. LEXIS 173
CourtSouth Dakota Supreme Court
DecidedDecember 19, 2001
DocketNone
StatusPublished
Cited by12 cases

This text of 2001 SD 147 (Apa v. Butler) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Apa v. Butler, 2001 SD 147, 638 N.W.2d 57, 2001 S.D. LEXIS 173 (S.D. 2001).

Opinions

KONENKAMP, Justice.

[¶ 1.] Petitioners, a group of South Dakota state legislators who served during the 2001 legislative session, request a peremptory writ of prohibition against the State Treasurer, the State Auditor, and the Secretary of Revenue. Petitioners seek to bar these officials from paying out, disbursing, or allocating funds from the South Dakota Bred Racing Fund and the Special Racing Revolving Fund under certain appropriations in the 2001 general appropriations bill. We deny the writ.

Background

[¶ 2.] The South Dakota Bred Racing Fund is authorized in SDCL 42-7-71:

One-fourth of all money received by the state treasurer under this chapter from licensees operating horse racing tracks shall be placed in a special revenue fund to be known as the “South Dakota-bred racing fund.” The fund shall be used by the commission to encourage horse racing and the raising and breeding of horses in South Dakota and shall be used for the purpose of providing compensation to South Dakota-bred horses by providing funds to all horsetracks licensed in South Dakota. However, not more than one-fourth of the moneys deposited in the South Dakota-bred racing fund may be used by the commission to provide purse supplements to horse-tracks for horses other than South Dakota-bred horses, (emphasis added).

In a similar fashion, the Special Racing Revolving Fund is authorized in SDCL 42-7-79.1:

In addition to the deductions authorized by § 42-7-79, the dog racing licensees shall deduct from the total sum contributed on dog races, except contributions on dog races in the win, place and show pool, an additional three and three-quarters percent on the dollars contributed. The licensee will retain one-quarter of one percent for capital improvements on all amounts contributed and an additional three and one-half percent shall be retained by the licensee for discretionary use. The special racing revolving [60]*60fund shall be in the office of the state treasurer to be disbursed by the commission to increase purses or for operations, or upon request, funds may be granted to a political subdivision of the state for unusual or unique law enforcement expenses incidental to having a race track or off-track site in that political subdivision. Funds in the South Dakota-bred racing fund and the special racing revolving fund shall be disbursed by the commission on warrants drawn by the state auditor on vouchers approved by the commission and such funds shall be disbursed without authority of appropriation acts, (emphasis added).

[¶ 3.] During the 2001 session, the legislature considered three bills involving the Bred Racing Fund and the Special Racing Revolving Fund. Senate Bill 51 proposed to transfer money from each fund to the Department of Social Services for grants to establish or maintain shelters or programs for domestic abuse victims. The bill failed to pass the Senate. Senate Bill 176 sought to amend SDCL 42-7-71 and 42-7-79.1 to permit money in the two racing funds to .be used for other purposes provided by the legislature. Although this bill passed the Senate, it failed to pass in the House. Finally, House Bill 1285 would have transferred money from each of the racing funds to help fund the State Fair. After numerous amendments, the bill passed the House. Additional amendments were made in the Senate and the bill ultimately passed that chamber. However, the House failed to concur in the Senate amendments, refused to accept the report of a conference committee, and failed to appoint a new conference committee to work out the differences in the bill. Thus the bill failed.

[¶ 4.] After the demise of Senate Bills 51 and 176 and House Bill 1285, House Bill 1233, the general appropriations bill, was amended during a joint meeting of the House and Senate Appropriations Committees. Section 26 of the bill was amended to make the following pertinent appropriations from the Bred Racing Fund and the Special Racing Revolving Fund:

Section 26. The state treasurer shall transfer to the state general fund money from the following funds for the pur- • poses herein indicated:
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From the South Dakota Bred Racing Fund:
Department of Health — Health Systems Development and Regulation $1,000,000
Department of Social Services — Adult Services and Aging $125,000
From the Special Racing Revolving Fund:
Department of Agriculture — Resource Conservation and Forestry $300,000
Department of Agriculture — State Fair $700,000
Department of Social Services — Adult Services and Aging $125,000

[¶ 5.] House Bill 1233 was ultimately passed by the legislature and petitioners brought this suit to stop the fund transfers authorized by section 26. As a basis for issuance of a writ of prohibition, petitioners argue that these appropriations from the Bred Racing Fund and the Special Racing Revolving Fund violate provisions of the South Dakota Constitution and are therefore void.

Availability of the Writ

[¶ 6.] Writs of prohibition offer an extraordinary remedy, available only in the absence of no other “plain, speedy and adequate remedy in the ordinary course of law.”' Sioux Falls Argus Leader v. Miller, 2000 SD 63, ¶ 4, 610 N.W.2d 76, 80 (quot-[61]*61mg SDCL 21-30-2). By longstanding precedent in South Dakota

any taxpayer or elector may maintain a proceeding to restrain a public officer from the performance of an illegal act, where the Attorney General has refused to prosecute the action in the name of the state, and where the relief sought is a public matter, or one of public right. In such case it is not necessary that the taxpayer or elector have a special interest in the suit or suffer special injury to himself.

State v. Youngquist, 69 S.D. 423, 426, 11 N.W.2d 84, 85 (1943). Thus, in Duxbury v. Harding, 490 N.W.2d 740 (S.D.1992), this Court issued a writ of prohibition on the petition of a group of state legislators to prevent the disbursement or allocation of certain appropriated funds on the basis that the appropriations were invalid. Petitioners mount a similar challenge here.

[¶ 7.] Applying the requirements of Youngquist, supra, petitioners allege that they are taxpayers and duly qualified legislators and electors. Respondents raise no view to the contrary. While petitioners have not alleged that the Attorney General refused to bring this action, the Attorney General’s representation of the respondents forebodes the futility of any such request. Finally, as resolved in Youngquist, “[t]he constitutionality of legislation affecting the use of public funds is a matter of public right.” Youngquist, 69 S.D.

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Apa v. Butler
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Cite This Page — Counsel Stack

Bluebook (online)
2001 SD 147, 638 N.W.2d 57, 2001 S.D. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apa-v-butler-sd-2001.