March 10, 1980

Mr. Dennis D. Evenson 
Deuel County State's Attorney 
Courthouse 
Clear Lake, South Dakota 57226

Official Opinion No. 80-15

Effect of Continuing Resolutions Establishing Number of Liquor Licenses Issued Pursuant To SDCL 34-4-11.1

Dear Mr. Evenson:

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

FACTS: 

Deuel County has a Continuing Resolution which was established pursuant to SDCL 35-4-11.1.  This Continuing Resolution provides that the County shall only issue one liquor license, however, the county is authorized to issue two liquor licenses.  Prior to September of 1979, the Continuing Resolution was not changed and was continued in to the year 1980.  Now, the county commissioners would like to rescind the Continuing Resolution, and issue another liquor license for the County of Deuel.  The County would like to rescind the Continuing Resolution now and issue a license immediately following the rescission of the Continuing Resolution.

Based upon the above facts, you have asked the following questions:

QUESTIONS: 

1.  Where a county has a continuing resolution established pursuant to SDCL 35-4-11.1 and that resolution was not changed before September 1, 1979, may the county issue more than the number of liquor licenses set forth in the continuing resolution through the rescission of that resolution after September 1, 1979? 

2.  If the answer to Question 1 is yes, may the county commissioners immediately after rescinding the continuing resolution approve the issuance of an additional liquor license? 

3.  Are light wine licenses issued considered in the limit set forth under the statute and within the Continuing Resolution?

IN RE QUESTION NO. 1:

SDCL 35-4-11.1, in part applicable here, reads as follows: 

If not previously fixed by ordinance or continuing resolution, the board of county commissioners shall on or before the first of September of each year, determine the number of on-sale licenses to be approved for the ensuing calendar year, and the fees to be charged for various classifications of licenses . . .

The balance of the section relates to numerical limitations as fixed by the Legislature with respect to population quotas.  A new section of the law was added in the liquor code revision of 1971, to provide for the setting of quotas outside the municipalities as well as within the municipalities.  The prior law with respect to municipalities only, reads in part as follows: 

The governing body of any municipality may, by resolution, at any time prior to November 15 of each year determine the number of on-sale and Class C  licenses it will approve for the ensuing calendar year, not exceeding however, the number limited by §  35-4-8 and 35-4-10.3 No other on-sale or Class C license shall be approved during such ensuing calendar year.  . . . (Underscoring supplied for emphasis.)

Under the present law, municipalities, like counties, may fix the number by ordinance or they may on or before the first of September, determine by resolution the number of licenses they will approve for the next year.  The specific language prohibiting any other license from being issued, however, which existed in the prior law was removed by the 1971 recodification.

It is therefore my opinion that while the commissioners may set the numbers by resolution on or before the first of September their failure to thus set a number does not prohibit a subsequent resolution from fixing that number.  Further, even if they meet the September first date by a resolution I believe they may rescind that resolution by a later action of the board since nothing prohibits them from doing this.  The recent case of M.B. Inc. v. City of Sioux Falls, 267 N.W.2d 580 (1978),  while dealing with date of the determination is distinguishable from the fact situation here presented.  In that case the governing body made a determination on September 2 as to limitation for the ensuing year.  In January of the next year the applicant sought an additional liquor license in addition to the quota.  The question before the court was whether the action of the governing body on September 2  was a valid restrictive resolution.  The court held that it was because September 1 was Labor Day, a holiday, and therefore this action taken the next day was as effective as if it had been done on the appointed day.  The case is distinguishable since there the city did not attempt to modify its resolution and not the invalidity of any other action the city might or might not have taken.

General law distinguishes between ordinances and resolutions and makes an ordinance a permanent act of the board of county commissioners while a resolution is 'any determination, decision or direction of a board of county commissioners of a special or temporary character, made for the purpose of initiating, effecting or carrying out its administrative duties and functions.'  §  7-18A-1.

IN RE QUESTION NO. 2:

In answer to your second question the effective date of any resolution, with certain exceptions, is the 20th day after completed publication unless suspended by operation of a referendum.  §  7-18A-8.  It would be my opinion therefore, that after rescinding the initial resolution of quota and adopting a new one the county would be in the position to recommend the approval of a greater number of liquor licenses 20 days after the completed publication.

IN RE QUESTION NO. 3:

With respect to your third question, light wine licenses were not classified in the prior law specifically.  In 1973 Chapter 236, 'An Act to amend SDCL 35-4-2 by addition thereto a new subdivision and to provide for the licensing of restaurants for the sale of intoxicating wine for consumption on the premises and amending SDCL 35-4-2,' was adopted.  Section 1 of the Act amended the numeration of classes in 35-4-2, by the addition thereto of a new section, now section (12).  Section 2 of the Act reads as follows: 

An application for a license authorized under section 1 of this act shall be submitted in the same manner as provided for on-sale license applications established by Chapter 35-2.

SDCL 35-2 does not contain any numerical restrictions as to the number of licenses.  It is my opinion therefore, that the Legislature by adoption of Chapter 236, Laws of 1973, itself permitted an entirely new class of light wine license within the discretion of the local governing body upon payment of the five hundred dollar fee and the issuance of the license by the state Department of Revenue.

The Legislature did not vest either the municipalities or counties with discretion in the classification of licenses of this character as it did with  other licenses under §  7-8-20(8) for counties, and 9-29-7 for municipalities. In other words the governing bodies have only the power to approve or disapprove those application and not to change the fee or the number except through their power of disapproval pursuant to 35-2-1.2.

In connection with question 3 I should also point out that although this is the first time the question has been officially asked of this office, it has been the continuous position of the Department of Revenue on the issuance of such light wine licenses, to permit them to be issued outside of the quota system since the adoption of the light wine law in 1973.

Respectfully submitted,

Mark V. Meierhenry
Attorney General