State Ex Rel. Oster v. Jorgenson

136 N.W.2d 870, 81 S.D. 447, 1965 S.D. LEXIS 102

• Court: South Dakota Supreme Court
• Decided: September 15, 1965
• Docket: File 10273
• Status: Published

Opinions

HANSON, J.

This is an original proceeding wherein petitioner seeks a writ of prohibition to restrain the state treasurer from paying or disbursing money from 68 different appropriated funds contained in The General Appropriations Act of 1965 (Chapter 277 of the Session Laws of 1965). No useful purpose would be served in listing all of the challenged appropriated items. It is sufficient to say they relate to and involve a wide variety of governmental functions and activities such as old age assistance; aid to dependent children; mental health centers; education of handicapped children; livestock disease control; research projects; state aid to equalize taxes in counties having school and endowment lands; vocational training; construction, repair and maintenance of buildings at various state institutions; certain salaries at institutions of higher learning; and a memorial museum to the Battleship South Dakota.

Some similar appropriations have been included in past general appropriation bills. Many others have not. The legislative reasons for these changes are not before us and are not material to their validity. It is of no great significance that a particular appropriation has never been included in a general appropriation bill in the past as precedent alone does not prove or disprove the existence of legislative power to do so. If constitutional power does not exist, it cannot be acquired by legislative assertion. If the power does exist it cannot be last by failure to exercise it. Wilmore v. Annear, 100 Colo. 106, 65 P.2d 1433.

With that as a prelude we proceed to a consideration of petitioner's specific objections commencing with the sufficiency of the title to Chapter 277, Session Laws of 1965. It reads "AN ACT Entitled, An Act appropriating money for salary and expenses of the executive, legislative and judicial departments of the State, for personal services and expenses of all officers, boards, and departments, for support and maintenance of the education, charitable and penal institutions, the Soldiers' Home, maintenance of the State House, and maintenance of the State Guard." Petitioner contends the title does not comply with or satisfy the requirements of Art. Ill, Section 21 of the Constitution of South Dakota which prescribes that "No law shall embrace more than one subject, which shall be expressed in its title."

A general appropriation bill is not legislation in the true sense of the term. It is as its language implies "a setting apart of the funds necessary for the use and maintenance of the various departments of the state government already in existence and functioning. * * * In providing that it should embrace nothing else, the framers of the Constitution undoubtedly intended that members of the legislature should be free to vote on it knowing that appropriations and nothing else were involved." Sellers v. Frohmiller, 42 Ariz. 239, 24 P.2d 666. Its singular subject is the appropriation of money. It serves no other purpose and its contents are constitutionally defined and limited. Of necessity, it appropriates money for a variety of purposes all of which meed not be stated with particularity in the title. To do so would cast an onerous and unnecessary burden on the legislature. For these reasons the constitutions of some states expressly exempt their general appropriation bills from the single subject title requirement. Perhaps our constitutional provisions do so by necessary implication, but we need not so decide here as the title to Chapter 277 fully and completely complies with the requirements of Section 21, Art. III. The controlling rule is expressed in the landmark case of State v. Morgan, 2 S.D. 32, 48 N.W. 314, as follows:

"The constitutional requirement in our constitution is addressed to the subject. This subject must be single. The provisions of the act must all relate directly to the same subject, have a natural connection, and not be foreign to the subject as stated in the title. The title must state the subject of the act for the information, not only of the legislature, but of the public generally. When the title of a legislative act expresses a general isubject or purpose which is single, all matters which are naturally and reasonably connected with it, and all measures which will or may facilitate the accomplishment of the purpose so stated, are germane to its title. There is no constitutional restriction as to the scope or magnitude of the single subject of a legislative act."

The title to Chapter 277 uses the word "expenses" to describe the nature of appropriations to be made for the executive, legislative and judicial departments of the state. Certainly that unqualified word is broader in scope than the restrictive terms "ordinary expenses" or "current expenses". Likewise the word "all" preceding "officers, boards, and departments" is all inclusive and serves to alert the average reader that Chapter 277 is a general appropriation bill. We are satisfied that no member of the public and no member of the legislature was, or could be, misled as to the subject or purpose of Chapter 277 by its title. To invalidate the entire General Appropriations Bill under the circumstances and for the reasons urged would be unreasonable and unrealistic.

The gist of petitioner's remaining objections pertains to and involves the application of Section 2, Art. XII of our Constitution to the several disputed appropriated items. It provides:

"The general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for common schools. All other appropriations shall be made by ¡separate bills, each embracing but one object, and shall require a two-thirds vote of all the members of each branch of the legislature."

This constitutional provision allows a legislative majority to appropriate funds for the ordinary expenses of state government and denies to a minority the power to prevent, obstruct, or ¡stop the operation of the vital affairs of government by denying those necessary funds. But the door to the state treasury is not so easily opened as to "all other appropriations". They must be the single subject of separate bills and receive the affirmative approval of two-thirds of all members of both houses of the legislature. Matters which could be included in the general appropriation bill may be the subjects of special appropriation bills without nullifying consequences. However, appropriations included within the general appropriation bill outside of and beyond its ¡scope are void. Callaghan v. Boyce, 17 Ariz. 433, 153 P. 773.

Sec. 18, Art. «III of the Constitution provides that upon final passage of a bill in each house of the legislature the "yeas and nays shall be entered upon the journal." According to the journals which this court may judicially notice, Barnsdall Refining Corp. v. Welsh, 64 S.D. 647, 269 N.W. 853, Chapter 277 of the Session Laws of 1965 did not receive an affirmative vote of two-thirds of all members of each branch of the legislature.

What then did the framers of our Constitution mean or intend in Sec. 2, Art. XII, by the term "ordinary expenses of the executive, legislative and judicial departments of the state"? By the term "current expenses of state institutions"? By "all other appropriations"? And what are our "state institutions" and what do the executive, legislative and judicial departments of the state consist of today? Essentially those questions are the issues involved.

An insight into the meaning of the term "ordinary expenses of the executive, legislative and judicial departments of the ¡state" is indicated in the early advisory opinion of In re Limitation of Taxation, 3 S.D. 456, 54 N.W. 417, wherein the court was concerned with the application of Sec. 1, Art. XI of the Constitution which then and now provides that "The legislature shall provide for an annual tax, sufficient to defray the estimated ordinary expenses of the state for each year, not to exceed in any one year two mills on each dollar of the assessed valuation of all taxable property in the state * * *. And whenever it shall appear that such ordinary expenses 'shall exceed the income of the state for such year, the legislature shall provide for levying a tax for the ensuing year, sufficient, with other sources of income, to pay the deficiency of the preceding year, together with the estimated expenses of such ensuing year. * * *" The court said the "ordinary expenses" of the ¡state are practically defined in Sec. 2, Art. XII and

"To meet these ordinary expenses, appropriation may be made by one general appropriation law, passed by the usual majority vote; but to meet extraordinary expenses each object of appropriation must be the subject of an independent and separate bill, passed by a two-thirds vote. We regard this plainly marked distinction between ordinary and extraordinary expenses, and the extreme carefulness with which the constitution has undertaken to guard the taxpayers and the public treasury against hasty and ill-advised outlays for extraordinary expenses, as peculiarly significant in construing the constitutional provisions involved in your inquiry. As to the ordinary current expenses of the state. which can be each year estimated with close approximation to correctness, excessive taxation is provided against by a fixed maximum rate; but probably no constitution could safely provide an arbitrary limit to taxation for extraordinary and emergency cases, for no constitutional convention could possibly anticipate what such case might be. It might be to protect the people of the state, by extreme and unusual means, against an approaching pestilence, or to make temporary provision for the patients of the insane hospital, unhoused and scattered by a devastating fire, or for any other exceptional and extraordinary object essential to the welfare of the state. Such expenses would be, confessedly, extraordinary and unusual, but because of the impossibility of anticipating such extraordinary contingencies, and the consequent impracticability of fixing in advance an arbitrary and inexorable rule for the limitation and control of taxation necessary to meet them, the constitution attempts to furnish an adequate restriction and protection in the requirement that no bill appropriating money for an extraordinary purpose can become a law without the support of two thirds of all the members of each house. Whether or not to provide an annual tax sufficient to defray the estimated extraordinary expenses of the state is not left to the discretion of the legislature, but is plainly written in the constitution as an imperative duty; but whether to provide for some extraordinary and exceptional expense is, we think, left to the wisdom and judgment of the legislature, subject always to the condition that no money shall be appropriated from the state treasury for such purpose except upon the approval and favorable vote of two thirds of the members of each house. This was doubtless regarded by the framers of the constitution as an adequate guaranty against an unwise or imprudent use of the public funds, — a rule sufficiently flexible to meet emergencies, yet safe and trustworthy, because resting in the conscience and enlightened judgment of so large a proportion of the people's immediate representatives."

This opinion points up the constitutional relationship and limitations on both taxation and the expenditure of public funds.

Black's Law Dictionary, 4th Ed., defines the word "ordinary" in its adjectival sense as "Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances * * *" and the same source defines the term "current expense" as "Ordinary, regular, and continuing expenditures for the maintenance of property, the carrying on of an office, municipal government etc."

The Constitution of Montana provides in Sec. 33, Art. V, that the "general appropriation bills shall embrace nothing but appropriations for the ordinary expenses of the legislative, executive and judicial departments of the state * * In construing this provision in Miller Ins. Agency v. Porter, 93 Mont. 567, 20 P.2d 643, the court held fire insurance premiums on the state capital and other institutions such as the penitentiary to be properly included in the general appropriation bill as an ordinary expense. The court said ordinary expenses include the current expenses of the government and "Any expense which recurs from time to time and is to be reasonably anticipated as likely to occur in order for the proper operation * * * of the state government, is an ordinary expense." Similarly the Ohio court in State ex rel. Jones v. Brown, 112 Ohio St. 590, 148 N.E. 95, said the phrase "current expenses of the state government and state institutions" in addition to those incident to officering and maintaining the state government "includes the preserving in repair and maintaining the property of the state government, and, as applied to roads, includes the maintaining and repairing thereof, as distinguished from new construction".

Although the terms "ordinary expenses" and "current expenses" generally have similar meaning we cannot construe them to be synonymous in the context used in Sec. 2, Art. XII. The object of construing a constitution is to give effect to the intent of the framers of the organic law and of the people adopting it, Schomer v. Scott, 65 S.D. 353, 274 N.W. 556, and, if possible, effect should be given to every part and every word. 16 Am.Jur.2d, Constitutional Law, § 67. In specifying the classes of appropriations which could be included- in the general appropriation bill the framers of our constitution apparently intended some distinction between the "ordinary expenses of the executive, legislative and judicial departments of the state" and the "Current expenses of state institutions" otherwise the word "ordinary" or the word "current" would have sufficed for both classes. Accordingly, the term "ordinary expenses" must have a larger and broader connotation than the term "current expenses". Therefore, we construe the term "ordinary expenses of the executive, legislative and judicial departments of the state" to mean any related expense which recurs with regularity and certainty. The term "current expenses of state institutions" on the other hand is equivalent to "running expenses" which includes any usual, regular, and continuing expenditure for the maintenance of property and for conducting the regular and authorized functions of the institution. Cost of land acquisitions, erection of permanent buildings and similar capital expenditures cannot be considered current expenses. Extraordinary, emergent, and exceptional expenses for any purpose likewise fall within the category of "All other appropriations".

As the functions of state government cover a wide range of activities involving the public peace, health, safety, and welfare its ordinary expenses cannot fairly be compared or confined to the ordinary expenses of a private business enterprise. They are of a different nature and must change from time to time to meet differing needs and conditions. In other words the unusual and extraordinary may become usual and ordinary. The expanding cost of various health and welfare programs is an example. Another, is the appropriation's which have been regularly made since 1941 to equalize taxation and to relieve distress in counties and school districts having an abundance of nontaxable state owned school and endowment lands within their boundaries. Therefore, no inflexible rule can be written which will forever clarify and solidify the distinction between "ordinary", "current" and "extraordinary" expenses of state gov-eminent. The line of demarcation is not clear, distinct, or static. Much must be left to the wisdom, integrity, and good judgment of our legislators.

Petitioner would limit the expenses of "state institutions" contemplated in Sec. 2, Art. XII, to those penal, charitable, and educational institutions elsewhere specifically named and authorized in the constitution. This would exclude the State Fair, State House, Capitol Building and grounds, State Soldiers' Home and other state institutions of a like nature which have no specific constitutional birthright. This would mean the expense of repairing the roof on the state penitentiary could be included in the general appropriation bill and enacted by a majority vote whereas the ¡same expense on the State Soldiers' Home would require a separate bill enacted by a two-thirds vote of the legislature. We cannot believe our constitutional fathers intended to discriminate in this manner between our various state institutions.

In the same vein petitioner asserts that legislatively created boards, agencies, and commissions not specifically named or authorized in the constitution constitute in effect a "fourth branch" of government, therefore, their expenses cannot rightfully be included in a general appropriation bill as "ordinary expenses of the executive, legislative and judicial departments of the state." Again, we consider petitioner's assertion untenable. Although Art. II of our Constitution provides that "The powers of the government of the state are divided into three distinct departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this constitution" legislative authority to delegate functions of a governmental nature to subordinate boards and commissions was visualized and recognized by Sec. 26, Art. III, of our Constitution and has long been sanctioned by our courts. See State ex rel. Ayers v. Kipp, 10 S.D. 495, 74 N.W. 440. One of the most recent and most cogent statements on this recurring and basic question was written by Judge Smith in Boe v. Foss, 76 S.D. 295, 77 N.W.2d 1, as follows;

"Inherent in the division of our state government into three distinct departments by Art. II of our constitution is the principle that the Legislature cannot abdicate its essential power to enact basic policies into law, or delegate such power to any other department or body. Equally as fundamental and settled is the principle that having written broad policy into law the Legislature, in the execution of that policy, can delegate quasi-legislative power or functions to executive or administrative officers or agencies, provided it.adopts understandable standards to guide its delegate in the exercise of such powers. Territory ex rel. Smith v. Scott, 3 Dak. 357, 20 N.W. 401; Davenport v. Elrod, 20 S.D. 567, 107 N.W. 833; Brookings County v. Murphy, 23 S.D. 311, 121 N.W. 793; St. Charles State Bank v. Wingfield, 36 S.D. 493, 155 N.W. 776; Application of Dakota Transportation, Inc. [of Sioux Falls] 67 S.D. 221, 291 N.W. 589; Utah Idaho Sugar Co. v. Temmey, 68 S.D. 623, 5 N.W.2d 486; and see Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 474; 27 Yale L.J. 892; 24 Corn.L.Q. 13."

Against a constitutional background substantially similar to ours the same contention was made in the early Colorado case of Parks v. Commissioners of Soldiers' & Sailors' Home, 22 Colo. 86, 43 P. 542. In rejecting the contention that their constitution perpetually limited the executive offices to those expressly enumerated in the constitution itself the court said:

"* * * it is sufficient to say that every officer of this state who holds his position by election or appointment, and not by contract, and whose duties are defined by statute, and are in their nature continuous., and relate to the administration of the affairs of the state government, and whose salary is paid out of the public funds, is a public officer of either the legislative, executive, or judicial department of the government, and may in the discretion of the legislature properly have his salary included in the general appropriation bill, and have the appropriation therefor take rank accordingly; * * *. Morever, as the officers established by the constitution and those created by authorized legislative authority are usually required to keep offices, records, papers, etc., it is evident that expenses for these and like items may also be provided for as a part of the ordinary expenses of the legislative, executive, and judicial departments of the government. Our conclusions upon this branch of the argument may be summarized as follows: That as to those offices not expressly enumerated in the constitution the legislature has plenary power to create or abolish the sanie, subject to well-known constitutional restrictions. It may, subject to such restrictions, increase or diminish the salaries of the incumbents, but while the offices are in existence, and the officers are discharging their duties, appropriations made for their salaries or necessary expenses are entitled to take rank with the ordinary expenses of the state government."

It may be conceded that some administrative agencies are chameleon-like in character and possess attributes of all three departments of state, therefore, they do not lend themselves readily to classification in any one of the three great departments of our government. However, with few well recognized exceptions, such as the Legislative Research Council and Department of Audits and Accounts, the power of appointing isuch officials is vested in the Governor and all, in a broad sense, engage in the function of executing our laws. For budgetary and appropriative purposes most administrative boards, agencies, and commissions are appropriately considered to be part and parcel of the executive branch of our government.

The task of writing general rules in this case is simple compared to the task of applying them to the 68 disputed appropriated items. In exercising this task we do so mindful of the fundamental rule that every presumption favors the validity and propriety of legislative action which should not be held unconstitutional by any court unless its infringement of organic restrictions is plain and palpable beyond a reasonable doubt. State ex rel. Botkin v. Welsh, 61 S.D. 593, 251 N.W. 189.

Applying the foregoing principles we conclude the following appropriated items were improperly included in the General Appropriations Bill of 1965 for the reasons indicated:

I. Outside of or beyond current expenses of state institutions:

Section 4.

(6) BOARD OF REGENTS

Capital Improvements

Land Acquisitions ........................ 253,000 Biennium

(7) BLACK HILLS STATE COLLEGE

Educational Facilities Fund:

Capital Improvements

New Construction

Classroom Building........................ 900,000 Biennium

(10) SOUTHERN STATE COLLEGE

Capital Improvements

New Construction and Equipment

Vocational Building ..................... 380,000 Biennium

(12) SOUTH DAKOTA STATE UNIVERSITY

Educational Facilities Fund:

Capital Improvements

New Construction

Classroom Building ........................1,710,000 Biennium

(13) UNIVERSITY OF SOUTH DAKOTA

Capital Improvements

New Construction

Adult Education Center ................ 300,000 Biennium

Section 8.

PUBLIC HEALTH AND HOSPITALS

(4) YANKTON STATE HOSPITAL

Capital Improvements

New Construction

Central Dietary Facility ................1,000,000 Biennium

II. Outside of or beyond ordinary expenses of the executive, legislative and judicial departments of the state:

Section 9.

RECREATION AND HISTORICAL

(1) DIVISION OF FORESTRY AND PARKS

Capital Improvements

General Fund

New Construction and Land Acquisition ................. ... 50,000 50,000

Highway Funds

Roadside Parks ..................... ... 12,500 12,500

Game, Fish, & Parks Mise............ ... 41,000 39,500

Section 5.

(16) AERONAUTICS COMMISSION

Transfer to Special Aviation Fund for Small Airport Construction ........................... ... 50,000 50,000

Transfer to Special Aviation Fund for Scheduled Airline Airport Construction ............. ... 100,000 Biennium

Section 9.

(4) BATTLESHIP SOUTH DAKOTA

MEMORIAL COMMISSION

Capital Improvements

New Construction

Museum for the Memorial to the Battleship SOUTH DAKOTA 100,000 Biennium

III. Contrary to Sec. 9, Art. XIII, requiring a two-thirds majority vote of the legislature for any expenditure of money for the construction and maintenance of roads (see State ex rel. Mills v. Wilder, 73 S.D. 330, 42 N.W.2d 891):

Section 6. ■ 1965-66 1966-67

HIGHWAYS

Transfer to State Trunk Highway Secondary Fund ............1,000,000 Biennium

It should be pointed out, in conclusion, that the invalidity of such appropriations does not render the entire General Appropriations Act of 1965 void or affect the validity of the remaining appropriations contained therein as the various appropriated funds are severable in nature, State ex rel. Hueller v. Thompson, 316 Mo. 272, 289 S.W. 338, making the following severability clause in Section 18 of Chapter 277, Laws of 1965 effective: "If any provision hereof or the application thereof to any person or circumstance is held invalid such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable".

A writ of prohibition will issue as directed.

RENTTO and HOMEYER, JJ„ concur. ROBERTS, P.J., dissents in part. BIEGELMEIER, J., concurs in part and dissents in part.