March 28, 1975
Governor Richard Kneip
Office of the Governor
State Capitol
Pierre, South Dakota
OFFICIAL OPINION NO. 75-55
House Bill #567 and Senate Bill #287
Dear Governor Kneip:
You have requested an official opinion from this office based upon the following factual situation;
The Fiftieth Legislative Session passed and delivered to my office two acts involving SDCL 10-47-2 (Motor Fuel Tax Provision).
The first Act, H.B. 567, increased the motor fuel tax from seven to eight cents beginning April 1, 1975. This Act becomes effective with the Governor's signature and amends SDCL 10-47-2.
The second act, S.B. 287, provides for the exemption of motor fuel tax at the time of purchase by the farmer-user. This Act also involves SDCL 10-47-2 and recites the motor fuel tax to be seven cents and becomes effective with the Governor's signature on July 1, 1975. This follows the effective date of the first act by three months.
Based upon the above factual situation, you ask:
1. Does the second act (Motor Fuel Exemption), to be effective July 1, 1975, have the effect of reverting SDCL 10-47-2 to a seven cent tax level, from the eight cent tax level of April 1, 1975; and
2. Does the first Act raising the tax level to eight cents on April 1, 1975, continue that increase despite the language of the second act, reciting seven cents, which becomes effective July 1, 1975?
The answer to your first question is YES. In the case of Kalmbach v. City of Mobridge, 81 S.D. 158, 132 N.W. 2d 293 (1964), our Supreme Court said in part:
We believe the statute is clear in its wording and consequently does not need judicial construction. The only legitimate purpose of statutory construction and interpretation is to ascertain legislative intent. When language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the courts only functions is to declare the meaning of the statute as clearly expressed in the statutes. (Note: citations omitted.)
In my opinion, the language of S.B. 287 is very clear with respect to whether the tax of SDCL 10-47-2 is intended to be seven cents or eight cents. The fact that H.B. 567 was also passed by the Fiftieth Legislature does not change the fact that as of July 1, 1975, S.B. 287 will take effect with a seven cent tax provision. I am aware that statutes which deal with the same subject matter are "in pari materia" and should be construed together. However, when a statute is clear on its face, there is no room for changing that statute by gymnastics of the rules of construction.
The answer to your second question is NO. If both bills were signed into law, it would be my view that S.B. 287 would take precedence as of July 1, 1975. I can find no other rational interpretation of the language of these two acts. Until July 1, 1975, H.B. 567 would be the law. I am aware that a primary rule of statutory construction is to give effect to the intent of the Legislature. In view of the language of the two bills, however, I do not feel that the law permits a view that would interpret the second act, S.B. 287, as really imposing an eight cent tax when the bill on its face says seven cents. I am aware that the Legislature probably intended that S.B. 287 would provide for a tax increase over the present amount provided in SDCL 10-47-2. However, in complying with the rule laid down in the Kalmbach decision, I do not feel it is possible for me to go behind the obvious language of the bill, which provides for a tax of only seven cents per gallon.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:WOC:mwt
