July 15, 1982

Mr. Michael T. Hogan 
Edmunds County State's Attorney 
Edmunds County Courthouse 
Ipswich, South Dakota 57451

Official Opinion No. 82-36

Application of SDCL 32-12-44.1 (Reinstatement of Suspended License)

Dear Mr. Hogan:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

In May of 1982, a 15-year old driver was arrested for and plead guilty to careless driving.  The Department of Public Safety, pursuant to SDCL 32-12-15 gave notice of withdrawal of driving privileges.  The notice was dated June 23, 1982, and suspended the driver's restricted permit for a period of 30 days from the date the license was received by the Department of Public Safety.  Prior to July 1, 1982, the driver submitted her license to the Department of Public Safety and the Department received the license prior to July 1, 1982. 

The 1982 session of the State Legislature enacted SDCL 32-12-44.1 as follows: 

Fee for reinstatement of suspended license.  Any person whose license or privilege to drive a motor vehicle on public highways is suspended pursuant to Chapter 32-12 shall pay a license fee of $50 to the department prior to the reinstatement of the license. 

The effective date of the enactment is July 1, 1982.

Based on the above facts, you have asked the following question:

QUESTION: 

Do the provisions of SDCL 32-12-44.1 apply to suspension of licenses prior to July 1, 1982, when reinstatement will only be possible after that date?

SDCL 32-12-12 provides for the issuance of restricted driving permits to minors between 14 and 16 years of age.

SDCL 32-12-15 is as follows: 

Restricted license as probationary--Suspension on conviction--Revocation on second conviction.  The issuance of a restricted permit under § 32-12-12 shall be on a probationary basis and the department on the receipt of a record of conviction for a traffic violation or a conviction for a violation of this restricted license, shall suspend such restricted license for a period of thirty days or as otherwise required by law.  A second conviction shall result in revocation of the restricted license until the licensee's sixteenth birthday.

Prior to July 1, 1982, SDCL 32-12-57 was as follows: 

Return of surrendered license upon termination of period of suspension.  The department of public safety upon suspending or revoking a license shall require that such license shall be surrendered to and be retained by the department except that at the end of the period of suspension such license so surrendered shall be returned to the licensee.

The 1982 session of the State Legislature amended SDCL 32-12-57 to read as  follows: 

Surrender of suspended or revoked license to department.  The department of public safety upon suspending or revoking a license shall require that the license be surrendered to and retained by the department.

SDCL 32-12-44 provides for the Department of Public Safety to renew or restore a driver's license after the end of the period of revocation permitted by law in the event a revocation of such license has occurred.  Provision is also made for payment of a license fee by the driver prior to such reinstatement.  The 1982 session of the Legislature raised that fee from $25 to $50 and imposed other conditions.

Although the 1982 session of the Legislature imposed additional requirements for reinstatement of a revoked license no additional requirements were imposed for restoration of a suspended license, other than payment of the license fee of $50 required by SDCL 32-12-44.1. 

It has generally been held that permission to operate a motor vehicle upon the public highways is not embraced within the term 'civil rights,' and a license to do so is not a contract or property right in any legal or constitutional sense, but rather a mere license or privilege, and, further, that although the privilege might be a valuable one, it is no more than a permit granted by the proper authorities.  But recent decisions have attached increased importance upon the operation of motor vehicles and while  recognizing the issuance of a license to operate a motor vehicle as property subject to reasonable regulation under the police power and dependent upon compliance with properly prescribed conditions, have described the use of the public highways as not a mere privilege, but a right, subject only to reasonable regulation. 

7 Am.Jur.2nd 271 Automobiles and Highway Traffic, Section 100.

The general rule as to interpretation of statutes is as follows: 

The question whether a statute operated retrospectively, or prospectively only, is one of legislative intent.  In determining such intent, courts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only, and not retrospectively.  However, a contrary determination will be made where the intention of the legislature to make the statute retroactive is stated in express terms, or is clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown by necessary implication, or by terms which permit no other meaning to be annexed to them, and which preclude all question in regard thereto, and leave no reasonable doubt thereof. 

It is especially true that a statute or amendment will be regarded as operating prospectively only, where it is in derrogation of a common law right, or where the effect of giving it a retroactive operation would be to  interfere with an existing contract, destroy a vested right, or create a new liability in connection with a past transaction, invalidate a defense which was good when the statute was passed, or in general, render the statute or amendment unconstitutional. 

73 Am.Jr.2nd 487, Statutes, Sec. 350.

The South Dakota court has consistently followed the general rule and in In Re: Sadler’s Estate, 38 N.W.2d 879 (1949) quoted with approval the following language: 

It is always to be presumed that a law was intended, as its legitimate office, to furnish a rule of future action to be applied to cases arising subsequent to its enactment.  A law is never to have retroactive effect unless its express letter or clearly manifested intention requires that it should have such effect.  If all its language can be satisfied by giving it prospective operation, it should have such operation only. 

In State v. Wrestling, 130 N.W.2d 109 (1964) the South Dakota court stated: 

More specifically, statutes generally will be held to operate prospectively unless the purpose and intention of the legislature to give them a retrospective effect clearly appears.  In every case of doubt, the doubt must be resolved against the retrospective effect and in favor of prospective construction only.

It is my opinion that SDCL 32-12-44.1 would, if applied retrospectively, impair a right acquired under existing law, and impose a new duty in respect to a transaction already passed, and that there is nothing contained in the express language of the legislature which would indicate that retrospective effect was intended.

The answer to your question is 'No.'

Respectfully submitted,

Mark V. Meierhenry
Attorney General