The Brookings register. [volume] (Brookings, Brookings County, S.D.) 1903-1971, 1914-05-21

cult court of South Dakota, says a
Pierre dispatch.
The issue raised not only affects
taxes of express companies, but of all
corporate property in the state. A
new movement has been started in re-
lation 10 this suit. so vital to the inter
ests of the state. through the action of
Attorney General Johnson, who takes
up the issue from a new angle which
may bring one of two results, either a
reversal of the ruling OF Judge san
born. or new legislation which will
cover the alleged defects in the pres
ent statute.
To this end Attorney General John.
son has called upon Gov. Byrne, under
the power given him by the provisions
OF section Is OF article 3 of the consti-
tuition. to request of the supreme court
or the judges thereof, an opinion as to
whether or not chapter 81, laws of
1907, the act passed upon by the court
of appeals, is r|epugnant TO the consti-
tuition of the state OF South Dakota.
From the showing made in the ase
it appears that the court of appeals
held on that one issue, and did not
pass upon any of the federal questions
which were brought into the record Of
the case. and thus prohibits the state
from taking an appeal TO the supreme
court of the United States in the case.
Ii appears that the holding of the
United States supreme court has been
that a state supreme court is the
proper tribunal 70 pass upon the ques-
ton as to whether or not a state law
is in violation of the constitution OF
that state, and where a state supreme
court has held an act to be constitu'
tional the supreme court of the Unit
ed States sustains that position in any
case which may come before 1T in
which the matter of the state consti-
tuition is an issue. But it is alleged
that there is no way to get the matter
of the constitutionality of this act be-
fore the state supreme court for the
reason that whenever a suit is brought
against any of the corporations con-
cerned they at once 90 to the federal
court on the ground of diverse citl-
zenship. and the matter is taken out
of the hands of the state courts, and
whenever any of the companies desire
to bring suit they begin the same in
the federal court direct, and there is
no way of getting the matter to issue
in the state court.
On that statement of fact the gov
ernor has been called upon. and he
considers the issue of such import
ance that he has, under his constitu-
tional right, called upon the state SUI
preme court for a decision upon the
matter. He states in his request:
ut appears to the legal department
of the state, and myself, that the SUI
preme court of this state is the final
arbiter of this important question, and
that this is the only method whereby
the matter car be presented to you.
If this statute Is invalid it may be
to call a special session of
the legislature of this state, and in any
event the very life of the state is in
volyed, as 1t cannot exist without the
revenue derived from taxation.
"The specific question upon which
opinion is required is: Were Sec
tons Is and 90, inclusive. of chapter
Ga, laws of 1907, valid when enacted,
and not repugnant to the provisions of
the constitution cited by the attorney
general? If not, are they valid now
by virtue of the 1912 amendment TO
section 2 of article II Of the state con-
stitution, and chapter SAT, laws of
1872"