The Mitchell capital. (Mitchell, Dakota [S.D.]) 1879-1918, 1914-05-14
SESSION
OF LEGISLATURE
Continued from page l..

Continued from page l..
question Of the validity of the state
law under the constitution of the
state, must be passed upon by the SUI
preme court of the state before it
can be known whether or not the
law is valid.
"In the case il volving the taxes
for 1910, the District Court of the
United States for the District of
South Dakota, after a full hearing on
the facts and the law, decided, Judge
James ID. Elliott presiding, that
Chapter "a of the Laws of 1907 of
this state was valid; that it was not
l%obnoxious either to the constitution
United States; that the tax against
the property OF these companies was
lawfully imposed; that the federal
courts had no right or jurisdiction to
review or question the findings of the
state board of assessment and equal
ization, on the matter of the value of
property; that when the value of
their property was fixed within the
state for the purpose of taxation, by
the board appointed by law for that
purpose, the finding of the board of
assessment was final; that there
must be an end somewhere and that
1t is not within the powers of the
court to disturb the findings of the
Board, and the petitions of the ex-
press companies for final injunc-
lions were denied. From that decision
of the district court by Judge Elliott
he companies appealed to the circuit
court of appeals with the result above
stated.
Disregards State Court.
From this, your %eXcellency will
| sec that while our own supreme court
has implicitly at least, sustained the
,onstitutionality of an act almost l.
tentical with the act of 1907, towit,
he revenue act of 1891, reported in
South Dakota, So N. w. 1872, and
While the United States district court
( Tor South Dakota, by Judge Elliott,
has followed the decision Of our SUI
irene court, that while the supreme
court OF the United States has almost
uniformly sustained similar legisla-
ion from other states, this state is
confronted by a decision of an inter-
Mediate court of appeals, Judge San
,orn presiding, which in substance
li%sregards both decisions of the SUI
irene court of South Dakota and
he supreme court Of the United
States, as it Is believed, and this
without meaning any disrespect to
he honorable presiding judge of the
eighth circuit court of appeals.
Your excellency's attention is
,alled to the fact that it appears to
De impossible for the legal depart
uent of this state to get.a case into
he courts of this state whereby the
Yalidity of chapter "a OF the laws of
1907 may be passed upon by the SUI
creme court. This condition grows
ut of the fact that that any case
commenced by the legal department
" this state against these companies,
an be and always is by them re-
moved to the federal court upon the
grounds of diverse citizenship, and
hat some federal question is involv-
I'd. On the other hand, these compan-
es when they have occasion to bring
egal action which involves the valid
ty of this law, uniformly bring their
actions in the federal courts and
here is no law under which suits SO
brought by them in the federal courts
ian be removed to the state courts.
State in ~Predicament.
Therefore. the state finds itself
Il this situation, that while the ques.
ion of whether this law is obnoxious
o the state constitution must ulti-
nately be decided by the supreme
;ourt of the state, there is no way
Under the law, whereby a case involv
ng the validity of the law can be
brought before hat court.
"Your e~xcellency'ss attention is,
therefore, called to section 13, ar.
icle S of the constitution, which au-
horizes the governor to require the
opinions Of the judges of the supreme
court upon important questions OF
aw involved in the exercise of his
executive powers, and upon solemn
occasions and by virtue of that auth
ority vested in you, the treasury de-
partment of the state earnestly urges
four excellency to request the opin-
on OF the supreme court upon the
'onstitutionality of Chapter 81. OF
the Laws of 1907.
Respectfully submitted,
Royal G. johnson,
Attorney General.
Dated May IL, 1914"
On the filing of the above Cover
NOR Byrne submitted the following
Ito the supreme court:
ITO the Honorable the Supreme
Court of the State of South Dakota,
and to the Judges Thereof desire
to call your attention to the fact that
Chapter "a of the Session Laws OF
the state of South Dakota, being act
providing for the assessment of the
property of railway. telegraph. tele.
phone, express and sleeping a com
panies, has been declared invalid as
being repugnant to the constitution
of the state Of South Dakota. and par.
ticularly to Section II of Article G
thereof, and Section 2, Article IL, b,
|a decision of the United States circuit
court of appeals of the Eighth circuit
opinion by Judge Sanborn, entered
at st. Louis, on May 4th 1914, in
'lcertain Litigation hetMeen the state