STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 20, 1975

Mr. Thomas R. Vickerman
Code Counsel
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-176

When do statutes of limitation take effect?

Dear Mr. Vickerman:

You have requested an official opinion from this office based upon the following factual situation:

SDCL 1-26-4.3 pertaining to rules adopted under the Administrative Procedures Act went into effect July 1, 1975. On June 2, 1975 the state retirement system held a hearing on proposed rules. The requirements for adoption of the rules as specified in SDCL 1-26-6 were completed on August 20, 1975.

If the sixty days statute of limitations (SDCL 1-26-4.3) began running on the date of the hearing, the rules are not validly adopted. If the sixty day statute of limitations did not begin to run until July 1, the rules were validly adopted.

Based on the above facts you ask:

On what date does the sixty day statute of limitation specified by SDCL 1-26-4.3 begin to run?

SDCL 1-26-4.3 provides:

No rule may be adopted if more than sixty days have passed from the date the public hearing thereon commenced.

The South Dakota Supreme Court has on repeated occasions recognized that statutes are to be construed as having a prospective operation unless the purpose and intention of the Legislature to give them a retrospective effect clearly appears, In re Scotts Estate, 81 S.D. 231, 133 N.W. 2d I (1965), State ex rel Strenge v. Westling, 130 N.W. 2d 109 (1964), In re Sadlers Estate, 73 S.D. 56, 38 N.W. 2d 879 (1949). The South Dakota Supreme Court has also held that in every case of doubt the doubt must be resolved against the retrospective effect and in favor of the prospective construction only, State v. Westling, and that absent words expressing a contrary intention a statute is to be construed prospectively only, In re Scotts Estate.

It is my view that the Legislature intended the provisions of SDCL 1-26-4.3 to become effective on July 1, 1975 and that inherent in that intent and expectation is the intent for it to possibly apply in a retroactive manner for a sixty day period prior to July 1,1975. Our Court has clearly recognized that whether a statute operates retroactively or not is a matter of legislative intent (State v. Westling, p. 111).

In my opinion the language of SDCL 1-26-4.3 is most rationally construed to have a potential retroactive application. I believe the Legislature also understood and intended this to be the law in view of the language they selected. In my opinion the Legislature has "expressed a contrary intention" and the principles of law set forth in the Scott and Westling cases cited above are not violated by this interpretation. In fact, inasmuch as 1-26-4.3 is really a procedural statute the following language of the South Dakota Supreme Court in the case of Dakota Central Telephone Co. v. Mitchell Power Co., 188 N. W. 750 is applicable:

When a new statute deals with procedure only, prima facie, it applies to all actions - those which have occurred or are pending and future actions.

Respectfully submitted,

William Janklow
Attorney General

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