(dissenting).
I dissent. In my opinion, the trial court erred in giving SDCL 15-2-22.1 retroactive application.
This court has repeatedly recognized the fundamental rule of statutory construction favoring prospective application of statutes. We succinctly stated this rule in In re Scott’s Estate, 81 S.D. 231, 234, 133 N.W.2d 1, 3 (1965) (quoting In re Saddler’s Estate, 73 S.D. 56, 61-62, 38 N.W.2d 879, 882 (1949)) as follows:
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.
See also First Nat. Bank of Minneapolis v. Kehn Ranch, 394 N.W.2d 709 (S.D.1986); Matter of Adams, 329 N.W.2d 882 (S.D.1983); State v. Westling, 81 S.D. 34, 130 N.W.2d 109 (1964); Bahlkow v. Preston, 60 S.D. 151, 244 N.W. 93 (1932); Cutting v. Taylor, 3 S.D. 11, 51 N.W. 949 (1892).
The majority opinion, leaning heavily on case authority from other jurisdictions, concludes that statutes of limitation are remedial in nature and, therefore, should be applied retroactively.* In my opinion, this contravenes this court’s holding in Matter of Adams, 329 N.W.2d 882 (S.D.1983). There, Justice Wollman stated, “Appellant contends that the 1981 amendment is curative and remedial and should therefore apply retroactively to his case. We disagree. A legislative act will not operate retroactively unless the act clearly expresses an intent to so operate.” Id. at 884 (emphasis supplied). I note that the author of the majority opinion concurred in Adams.
While SDCL 15-2-22.1 is silent as to retroactive or prospective application, the genesis legislative acts from which it emerged by amendment and repeal did provide for prospective application. Justice Henderson, writing for this court in John*774son v. Kusel, 298 N.W.2d 91 (S.D.1980), concluded that legislative intent regarding retroactive or prospective application must be gleaned by considering the statutory construction as a whole. The statutory history of SDCL 15-2-22.1 certainly does not imply a retroactive intent.
Even assuming that a doubt exists as to legislative intent, we have stated, “In every case of doubt, the doubt must be resolved against the retrospective effect and in favor of prospective construction only.” Westling, 81 S.D. at 38, 130 N.W.2d at 111. See also Federal Farm Mortgage Corporation v. Noel, 66 S.D. 481, 285 N.W. 871 (1939). We should let this fundamental rule stand firm and allow the plaintiff to have his day in court.
In view of this conclusion, Lyons has no cause to question the constitutionality of SDCL 15-2-22.1. Indeed, he urges that issue only in the alternative. Accordingly, I do not reach that issue.
I am hereby authorized to state that Chief Justice WUEST joins my dissent.
The majority opinion cites Simpson v. Tobin, 367 N.W.2d 757 (S.D.1985) as holding "statutes effecting remedy or procedure as opposed to those affecting substantive rights are given retroactive effect.” That decision, in which I participated, related to House Bill 1266 of the 1983 legislative session. Section eight of that bill clearly provided "the provisions of this act apply retroactively.” 1983 S.D. Laws ch. 44, § 8. I find nothing in Simpson which supports the majority opinion's apparent claim that this court’s holding therein is not limited to the facts of that case.
Brookings County v. Sayre, 53 S.D. 350, 220 N.W. 918 (1928), a case upon which the majority opinion also relies, is also distinguishable. There, this court held that under the law as it then existed, there was no statutory provision as to the form of civil action by which the liability of the petitioner could be enforced for costs incurred on that appeal prior to the enactment of the statute. Under those circumstances, this court held the statute could be given retroactive effect.
It is also noteworthy that only three years ago, this court in Kehn Ranch declined to follow other jurisdictions which take a more expansive view regarding the retroactive application of statutes.