STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 19, 1968
Bruce D. Gillis
Commissioner of Revenue
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 68-19
Interpretation of restrictive statutes relating to sale to and purchase, or possession by, persons under lawful age of alcoholic beverages
Dear Mr. Gillis:
Because of numerous inquiries from individual alcoholic beverage licensees as well as enforcement officials throughout the state concerning the purchase and consumption of alcoholic beverages by minors; I am taking the liberty of addressing this official opinion to you, as the Administrator of Title 5, relating to the control of alcoholic beverages in this state.
There is an apparent conflict in our statutes concerning sale, purchase, possession and consumption of both non-intoxicating liquor and intoxicating liquor and for this reason I set forth below the particular statutes concerning each.
NON-INTOXICATING BEER AND WINE
SDC 1939 No licensee shall sell or give to any person under age of 18
5.0311 (4) (raised to 19 by Ch. 19 Laws of 1963)
Ch. 15, Unlawful for any person under age of 19 to
purchase, at-Laws 1965 tempt to purchase,
possess or consume or to misrepresent age for any
such purposes.
Supp. 13.3304 Unlawful for any person to sell or give for use as a
beverage to a Ch. 46 person under 18 unless in
immediate presence of parent or Laws 1959
guardian or husband of minor (raised to 19 by Ch.
31, Laws of 1965)
INTOXICATING LIQUOR
SDC 1939 No licensee shall sell to anyone under 21
5.0226 (2) (a)
(6) No licensee shall permit person under 21 on
licensed premises except in company of parent or
guardian.
5.0227-1 Unlawful for person under 21 to misrepresent age
for purpose of Ch. 18 purchasing or attempting to
purchase liquor from licensee.
Laws 1949
AMENDED, Ch. 16 Laws 1963 - Unlawful to purchase, attempt
to purchase, possess liquor or to misrepresent age
for such purposes.
AMENDED, Ch. 5 Laws 1968 - Unlawful to purchase, attempt
to purchase, possess or consume except in religious
ceremony, or to misrepresent age for obtaining.
5.0227-2 Unlawful to give for use as a beverage to a person
under 18, unless Ch. 14 done in immediate
presence of parent or guardian or by
Laws 1943 prescription or direction of M.D. or nurse for
medicinal purposes. (Raised to 21 by Ch. 9 Laws
1959)
It should be the attempt of any interpretation of statute to try, if possible, to harmonize and make workable all lawful enactments, and to give a sensible and intelligent effect to each. Tulare Ind. School Dist. v. Crandon School Dist., 47 S.D. 391, 199 N.W. 451. Where, however, there is no ambiguity, statutes are not to be enlarged by construction or extended by inference to include acts not within the terms of the language defining crimes.
State v. Clark, 67 S.D. 133, 190 N.W. 237. Likewise, we note that repeal of a statute by implication is not favored by the courts and no such repeal is effected unless an unavoidable repugnancy exists between earlier and later acts. Argo Oil Corp. v. Lathrop, 76 S.D. 70, 72 N.W. 2d 431.
With this general presentation of the rules concerning statutory construction, I shall endeavor to present a meaningful resume of the laws in question,
As to non-intoxicating beer and wine, it is my opinion that it is unlawful for a licensee to sell the same to a person under the age of 19, if that person is on his own and by himself attempting to purchase it, (Chapter 19, Laws of 1963) By the same token, it is unlawful for a person under the age of 19 to purchase, attempt to purchase, possess or consume or to misrepresent his age for any of such purposes. (Ch. 15, Laws of 1965) Where, however, the sale, purchase, possession or consumption takes place in the immediate presence of a parent or guardian or husband of such minor, there is no violation. (Chapter 31, Laws of 1965)
The same situation does not exist however, so far as intoxicating liquors are concerned; that is, any alcoholic beverage containing in excess of 3.2 per centum of alcohol by weight. (SDC 5.0101 (1). In that instance we find a positive injunction against selling to anyone under the age of 21 (SDC 5.0226 (2) (a), as well as a prohibition against a person under 21 from purchasing, attempting to purchase, possess or consume, except in a religious ceremony, or to misrepresent his age for such purposes for acquisition, (Chapter 5, Laws of 1968) These statutes clearly make both the seller and the buyer liable for the penalties provided and in my opinion relate to public consumption of intoxicating liquor by a person under the age of 21 unless in a religious ceremony.
Effect must be given though to the provisions of Chapter 9, Laws of 1959 which makes it unlawful to give for use as a beverage to a person under 21, any intoxicating liquor unless done in the immediate presence of a parent or guardian or by prescription or direction of a doctor or nurse for medicinal purposes. A logical interpretation could not be sustained in holding that a minor could be given and could consume in public, intoxicating liquor in a religious ceremony, but could not in private be directed by a physician to consume an intoxicant. It is my opinion therefore, that while public possession and consumption by a minor is prohibited, except in a religious ceremony, the laws of this state do not prohibit such if done in the privacy of the minor's home in the immediate presence of the parent or guardian or as otherwise noted in Chapter 9, Laws of 1959,
In summary then, it is unlawful for any person to sell non-intoxicating beer and wine to a minor under the age of 19, when not accompanied by a parent or guardian, and under the same conditions it is unlawful to give the same to such a person. The minor likewise may neither purchase nor consume non-intoxicating beer or wine unless in the immediate presence of his parent or guardian.
As to intoxicating liquor, a licensee may not sell or give, and a minor (under 21) may not buy, possess or consume, and a parent may not give to in public, except in a religious ceremony. On the other hand, possession and consumption in private in the immediate presence of parent or guardian or by prescription or direction of a doctor or nurse for medicinal purposes is not prohibited.
As a further opinion, I seriously believe these above noted statutes should be reviewed before the forthcoming session of our Legislature and a single law drafted which will do away with all seeming ambiguity.
Respectfully submitted,
Frank L. Farrar
Attorney General
