April 22, 1981

Mr. James McAtee, Secretary 
Department of Public Safety 
118 West Capitol Avenue 
Pierre, South Dakota 57501

Official Opinion No. 81-13

Exemptions From the Definition of Motor Carrier and Commercial Vehicle

Dear Mr. McAtee:

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

FACTS: 

A truck owned by a rural electric association is equipped with an hydraulically-operated rotatable boom at the end of which is attached a tub or basket-like device.  This tub is used to hold a workman and his equipment at a height above the ground so that he can perform installation or repair work on power poles and lines, without having to climb up and down the pole itself.  These vehicles are commonly referred to as 'cherry pickers.'

Based on the foregoing facts, you have asked the following questions:

QUESTIONS: 

1.  Are these vehicles included in the exceptions from the definitions of motor carrier and commercial vehicles as described in SDCL 32-9-3? 

2.  In regard to paragraph (3) specifically, do these vehicles fall within the classification of 'mobile crane'?

'Motor carrier' is defined in SDCL 32-9-2 as follows: 

Except as provided in § 32-9-3, the term 'motor carrier' when used in this chapter means any person, copartnership, or corporation owning, controlling, operating or maintaining a commercial vehicle.

SDCL 32-9-3 provides ten classifications for exception to the definition of motor carrier stated in § 32-9-2.  The vehicle which you describe does not, in my opinion fit into the first or second categories, which are motor vehicles used for nonhire personal use or private business use of the operator or his employer to carry property of five hundred pounds or less; or motor vehicles operated within the corporate limits of a municipality, or between contiguous municipalities, or within a distance of three miles of a municipality.

The remaining eight classifications exempt motor vehicles used primarily in the ordinary exchange of farming, logging and mining work, which certainly would not include the type of motor vehicle you describe.

The only classification which may provide an exemption for this type of utility vehicle is, as you point out, paragraph (3), which states: 

A motor vehicle chassis on which is mounted a cornsheller, feed grinder, grain and alfalfa feed mixing machine, haystack mover, sawmill, well drilling equipment, power shovel, ditchdigger, mobile crane, bulldozer, posthole auger, and which is not used for demonstration or display purposes outside the limits of a municipality, or a truck tractor and trailer carrying permanently mounted blowing equipment used solely for the purpose of covering flax strawstacks.  License fees for these vehicles shall not exceed two hundred dollars.  (Emphasis added).

You have specifically asked if the utility truck used by the rural electric association falls under the term 'mobile crane'.

It is my opinion that it does not.  Webster's New International Dictionary defines a 'crane' as: 

a machine for raising and lowering heavy weights, and while holding them suspended, transporting them through a limited lateral distance.  Cranes are generally essentially of either of two forms: (1)  The form (called jib crane) having a projecting arm or jib of timber or iron, with the necessary tackle, windlasses, etc., being called specifically a derrick crane when the jib is affixed to a rotating post held by the guys (2)  Any of various forms in which the hoisting apparatus is supported by a trolley which runs on an overhead track, being called a traveling crane when this track is on a movable bridge.

Webster's defines 'mobile' as 'capable of being moved, movable.'  Thus, it would seem that a 'mobile crane' is a mechanical device such as that described above, mounted on a motor vehicle chassis which allows easy movement of the mechanical device from one location to another.

The utility truck you describe is equipped with an hydraulically-operated rotatable boom at the end of which is attached a tub or basket-like device used to hold a workman and his equipment at a height above the ground so that he may perform electrical pole and line maintenance work.  I find nothing in section  (3) of SDCL 32-9-3 which brings such a utility vehicle within the exemption provisions of the statute.

This same decision was reached by one of my predecessors in an opinion considering whether a utility truck owned by an electric cooperative, equipped with hand auger, winch and derrick, tamps, pike poles and lineman's tools, was exempt from liability for compensation plate fees.  This truck was also used 'for line construction involving setting of poles, stringing conductor wires and also for retirement of poles and conductor on replacement or moving of electric lines.'  (1959-60 A.G.R. 102).

It was held that such a vehicle could not be considered 'a motor vehicle chassis on which is mounted a corn sheller, feed grinder, grain and alfalfa feed mixing machine, haystack mover, sawmill, well drilling equipment, power shovel, ditch-digger, dragline, bulldozer, and posthole auger not used for demonstration or display purposes outside the limits of a municipality' (SDC 44.0422, paragraph 5).

This statute has been subsequently amended to what wording we now recognize as SDCL 32-9-3, with Chapter 224, § §  21 through 24 of the Session Laws of 1978 specifically amending 'dragline' to 'mobile crane.'

I agree with my predecessor, who held that 'since the utility truck is not a motor vehicle chassis on which is mounted any of the aforementioned items of husbandry or commerce, it is my opinion that it does not fall with the class of  vehicles which may be licensed by implement plates or within any of the classifications of vehicles which are exempted from the payment of compensation fees' (1959-60 A.G.R. 102-103, see also 1949-50 A.G.R. 40).

Respectfully submitted,

Mark V. Meierhenry
Attorney General