(dissenting).
This case was before the trial court with common questions of fact and law pertaining to both appellants. Appellee’s complaint for a permanent injunction prevailed, the trial court having entered a Memorandum Decision and later Findings of Fact and Conclusions of Law. Appellee is a state agency. Appellant Starr is a North Dakota corporation and appellant Hadden-ham is likewise a nonresident of South Dakota.
Appellants Starr and Haddenham urge this Court to declare SDCL 34-37-12 unconstitutional. In my opinion, it is. SDCL 34-37-12 is inconsistent and repugnant to federal enactments, namely the Hazardous Materials Transportation Act, 49 U.S.C.S. §§ 1801-1812 (Law.Co-op.1981). Appellants cannot enjoy the benefits permitted by federal regulation without triggering enforcement action by the State of South Dakota. Therefore, SDCL 34-37-12 must be struck down under Article VI of the United States Constitution, commonly referred to as the Supremacy Clause. In this case, I view the federal legislation as having preempted state authority.
The trial court in its Findings of Fact, Conclusions of Law, and Memorandum Opinion held that SDCL 34-37-12 was not violative of the Federal Preemption Doctrine. Implicitly, by specifically ruling upon this issue, the trial court rejected the appellee-state’s argument that appellants Starr and Haddenham lacked standing to raise this issue. Furthermore, the appelleer state failed to file a Notice of Review under SDCL 15-26A-22. Hence, I disregard the state’s contention in this regard and hold that appellants are properly before this Court to advocate the unconstitutionality of a state enactment. The State is attempting to obscure the issues thereby escaping full consideration on the merits of this case. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 490, 102 S.Ct. 752, 768, 70 L.Ed.2d 700, 721 (1982) (Brennan, J., dissenting).
The United States Congress enacted the Hazardous Materials Transportation Act to secure a pattern of uniform national regulation and to thus preclude a multiplicity of local and state regulations in the area of hazardous materials transportation. Nat'l Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819 (1st Cir.1979). Each state cannot be an island unto itself. We cannot have quiltwork explosive acts in each state across this Nation. The national statutory scheme is directed to persons who engage in the transportation and sale of explosives. Appellants are involved in the sale of what is known as “Class C” explosives. “Class C” explosives are just plain common fireworks. Without doubt, appellants’ activities are within the ambit of the national act above referred. As such, they have a right to assert their rights thereunder.
While federal regulations specifically permit the delivery and transportation of *792“Class C” fireworks by rail, air, private, and common carrier, SDCL 34-37-12 only permits the delivery of such fireworks by properly certified motor carriers as defined in SDCL ch. 49-28. Therein and thereby, by words of limitation, the state statute eliminates from interstate commerce the transportation of fireworks by common, contract, marine, and inland carriers. SDCL chs. 49-2, 49-3. By limiting shipping and transportation to motor carriers, all of which pertain solely to motor vehicles operated on public highways, railroads — airplanes—and water carriers have been excluded.
Evidence definitely established that a substantial amount of fireworks is sold in the state to out-of-state residents, principally tourists, who transport them in their private motor vehicles to distances outside the State of South Dakota. Title 49 C.F.R. § 177.800 (1982) applies to the transportation of hazardous materials by motor vehicles upon public highways. Language of § 177.800 provides in part: “To promote the uniform enforcement of law and to minimize the dangers to life and property incident to the transportation of hazardous materials, by private, common and contract carriers, by motor vehicle engaged in interstate or foreign commerce .... ” Additionally, 49 C.F.R. § 177.801 (1982) provides in part: “Hazardous materials except such as may not be accepted and transported under Parts 170-189 of this subchapter, may be accepted and transported by private, common and contract carriers by motor vehicle engaged in interstate or foreign commerce, provided they are in proper condition for transportation and are certified as being in compliance with Parts 170-189 of this sub-chapter ...." Any citizen using his or her private motor vehicle has the right to transport fireworks. State-appellee is clever in its brief in pointing out how the record is devoid of evidence that its own Department of Public Safety enforces SDCL 34-37-12 in a manner to stop the transportation of fireworks by rail or air. Conspicuously missing from the state’s brief is the same contention with respect to private automobiles.
“Class C” fireworks may be transported by rail, air, private, and common carrier under federal regulations adopted by the Department of Transportation, but SDCL 34-37-12 permits delivery of “Class C” fireworks only by properly certified motor carriers or licensed fireworks wholesalers or manufacturers or fireworks permit holders in vehicles owned by them.
The South Dakota statute is not part good and part bad. It is all bad. It is unconstitutional and I therefore dissent. This 1982 statute contains two sentences. The poison contained in the second sentence spreads into the first sentence and runs afoul of the Federal Preemption Doctrine. The 1983 Legislature apparently recognized the inherent constitutional weakness of the 1982 statute and patched it with an “if” clause. It is the 1982 statute which is under constitutional attack and to which we must rivet our academic endeavor.
Tourists and their families, who come to the State of South Dakota are entitled to buy fireworks in South Dakota, put them in their car, and drive back to Sheboygan. They need not be a licensed wholesaler, manufacturer, or fireworks permit holder to do so.