STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
January 27, 1969
Donald L. Heck
State's Attorney, Jackson County
Kadoka, South Dakota 57543
OFFICIAL OPINION NO. 69-5
SDC 1960 Supp. 44.0422(8) relating to compensation plates; when farmer may claim exemption
Dear Mr. Heck:
Your recent request for an official opinion regarding the above statute is hereby acknowledged.
You have set forth a statement of facts and question as follows:
"On November 23, 1968, an employee of 'A' was operating a tractor and semi-trailer on a public highway in Jackson County, South Dakota. Loaded on this semi-trailer were two farm tractors and a dozer with dozer blade attached. 'A' is the owner of the tractor and semi-trailer and the two tractors and dozer. 'A' is a farmer in the State of South Dakota. 'A' is also in the business of seeding highway right-of-ways along Interstate 90 and was using the two tractors and dozer on a project along Interstate 90. 'A' purchased compensation for the tractor and semi-trailer to transport the equipment to the seeding site. "When the motor vehicle owned by 'A' was stopped by a Highway Patrolman on November 23, 1968, it was being used to return the two tractors and dozer to 'A's' farm in South Dakota. The tractor, semi-trailer, two tractors and dozer are all used in 'A's' farming operation. 'A' claims exemption from compensation fees for transporting the two tractors and dozer from the seeding site to his farm under 44.0422, sub-paragraph numbered (8).
"Is 'A' exempt from the payment of compensation fees in the above fact situation'?"
SDC 1960 Supp. 44.0422, including Sub-section (8), so far as it is pertinent here, reads as follows:
"The term 'motor carrier,' when used in Sections 44.0420 to 44.0432 of SDC 44.04 and amendments thereto shall mean any person, co-partnership or corporation owning, controlling, operating or managing any motor vehicle, trailer, semi-trailer or motor propelled or trailed vehicle chasis for the transportation of persons or property over the public highways of this state.
"Provided, however, the following shall not be considered within the definition of 'motor carriers,' to wit:
* * *
"(8) when operating a motor vehicle owned by a farmer of this state and used by the farmer in transporting property for his farming operation." (Emphasis supplied,)
We should first consider that this is an exemption statute, and that under the well settled rule of law pertaining to statutory construction, such a statute is to be strictly construed.
But, as I view the situation here, it is not so much a matter of determining what the statute provides, as it is a matter determining factually whether "A" on the 23rd day of November was transporting his property and otherwise conducting himself as a contractor in the seeding business. To put it another way, the underlying and ultimate question to be determined appears to be-whether or not the transportation of this equipment, in returning it to the base of operation, is in connection with, and attributable to, the seeding project on Interstate 90?
It is my opinion that it is for the following reasons:
When "A" contracted the seeding job he unquestionably knew that he would have to move his equipment to the seeding site and also return the equipment to his farm which is the base of his sideline seeding business.
From the fact that he purchased compensation to transport the equipment to the seeding site, it seems apparent that he is aware that compensation is required for the purpose of moving his equipment in connection with his seeding business, as distinguished from his farming operations.
It is my impression that it would be a bit incongruous to claim that transporting the equipment involved from the base of the seeding business operation to the seeding site is in connection with, and part of, the seeding business on the one hand, but that the return of the equipment from seeding site back to the business base is for the sole purpose of the collateral farming operation and totally disconnected from the seeding business venture which precipitated the initial removal of the equipment from the base situs. It is my opinion that once the equipment was identified by "A" to be for use in the seeding business contract on the Interstate 90 project, it would retain that identity throughout the term of the contract and until it was returned to the base of operation for reidentification.
In view of the circumstance that "A" was stopped by a Highway Patrolman, I must assume that an arrest has been made and that this matter is, has been, or is anticipated to be, in litigation. Therefore, I would want to emphasize that it is neither the province nor policy of this office to attempt in any way to invade the province of the court or jury, nor to color the outcome of any matter which is, or may be placed in litigation; and that this opinion should not, and cannot properly be used as the basis or authority for settlement of any such litigation.
And further; that if the matter has already been litigated it would be most inappropriate, improper and unethical to use it in any manner suggestive of criticism of the determination or decision resulting from such litigation. Lastly; regardless of my view and analysis of your facts as outlined above, it is my further opinion that this matter, or any other of like nature, arising in your jurisdiction or any other, should be litigated to a final judgment in an appropriate court having jurisdiction to try the case, and then appealed to the Supreme Court, if need be.
In conclusion; having determined in my view of the facts that "A" was transporting his equipment as a seeding contractor and not in his capacity as a farmer strictly for his farming operation; your specific question should be answered in the NEGATIVE.
Respectfully submitted,
Gordon Mydland
Attorney General
