STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

November 18, 1975

Mr. Lyle Wendell, Secretary
Department of Revenue
Capitol Lake Plaza
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-190

Retroactive effect of chapter 227, laws of 1945, waiting period where liquor license not issued

Dear Secretary Wendell:

You have requested my official opinion as to whether or not chapter 227, laws of 1945 (35-2-5.3), is retroactive to the extent that licenses not used by the holders thereof for two years prior to July 1, 1975 may not be reissued to the same person for a one-year period commencing with the renewal of licenses on January 1, 1976.

The statute in question definitely impinges upon the right of a holder of a liquor license to make application if he has not actively used that license for a two-year period. The rule in South Dakota is that where there is no clear expression of legislative intent as to prospective or retrospective effect any doubt must be resolved against the retrospective effect and in favor of the prospective construction only of a statute. State ex rel. Strenge v. Wrestling, 81 S.D. 34, 130 N.W. 2d 109 (1964). Also as stated in Official Opinion 75-176, in quoting from Dakota Central Telephone Company v. Mitchell Power Company, 45 S.D. 462,188 N.W. 750 (1922), "When a new statute deals with procedure only prima facie it applies to all actions - those which have occurred or are pending and future action."

The statute in question deals with much more than a mere procedure for applying for or issuing of liquor licenses. It deals with a basic entitlement and qualification for a liquor license and it is therefore my opinion that since it does not clearly require a retrospective effect it must be given prospective application only and that therefore the two-year period commenced on July 1, 1975.

Respectfully submitted,

William Janklow
Attorney General

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