February 21, 1975

Joseph H. Barnett, Speaker
House of Representatives
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-32

House Bill No. 583

Dear Speaker Barnett:

You have asked whether Section 2 of House Bill No. 583 as amended on page 381 of the House Journal constitutes a special appropriation and thus requires a two-thirds vote.

House Bill No. 583, Section 2, as amended reads as follows:

Any member of the national guard of the state of South Dakota, who is a resident of the state of South Dakota and who possesses the entrance requirements for admission to any post-secondary program shall be entitled to receive fifty per cent of the tuition charge as a reimbursement from the department of military and veterans affairs and be entitled to complete one program of study approved by the state board of vocational education.

It is my opinion that this bill in form if not in substance involves an ap­propriation.

In the case of State ex rel. Oster v. Jorgenson, 81 S.D. 447, 136 N.W. 2d 870 (1905) our Supreme Court discussed at length the difference between a general and special appropriation mentioned in Article XII, § 2 of the state constitution.

The court then said in part:

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.

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.

Based on this rationale, it is my opinion that new programs such as that en­visioned by House Bill No. 583 are not "ordinary expenses" within the pur­view or capability of being a part of the general appropriation bill. To allow House Bill No. 583 to be passed by less than a two-thirds vote at this point would subvert the intent of §2 of Article XII of the South Dakota Constitu­tion which 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.

If House Bill No. 583 were allowed to pass by a majority vote, the program authorized by that Bill would then in my opinion become part of the “or­dinary expenses" of state government. Consequently, the program could then be funded by a mere majority vote. By this maneuver the Bill would therefore by-pass the two-thirds requirement of Article XII, §2 for all special appropriations. In my opinion this is not lawful.

Respectfull submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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