(concurring in part, dissenting in part).
I cannot entirely agree with the majority opinion as written.
From an analysis of the various Supreme Court decisions, I do however agree that the legislature can pass a retroactive increase in tax to cover refunds ordered paid in Matter of Sales Tax Refund Applications, 298 N.W.2d 799 (S.D.1980). As I understand these cases, the bottom line tests are whether: 1) a vested right has been taken away by the retroactive legislation; 2) the retroactive increase has a limitation in time which is reasonable and therefore not lacking in due process; 3) the validation of the *708tax would not have harsh and oppressive results; and, 4) finally, that the validation would be in the public interest.
We previously held that Van Emmerik had no direct right to refunds of the tax from the State on the grounds of sovereign immunity, Van Emmerik v. State, 298 N.W.2d 804; however, he now claims a vested property right in refunds ordered paid by the State to the Utilities. Matter of Sales Tax Refund Applications, supra. His claim is made on the basis of his derivative rights to receive any refund due him from any amounts paid by the State to the Utilities. The State is only liable for refunds to the Utilities for the years subsequent to 1976 under SDCL 10-45-53. Therefore; the question becomes whether Van Emmerik can complain that Senate Bill 40 would retroactively validate a tax back to 1976. In the first place, Van Emmerik has a very tenuous claim of a vested property right in a portion of these refunds to the Utilities. There is certainly no final judgment in his favor. He must await the refund before he has any claim to a portion of it. His claim simply has not ripened into a vested right and is presently pending in circuit court. As aptly stated in Hodges v. Snyder, 45 S.D. 149, 157, 186 N.W. 867, 870 (1922), quoting from 2 Lewis’ Sutherland, Statutory Construction 1237:
“It is no objection to a curative act that it validates what has previously been declared invalid in a judicial proceeding. The judgment may furnish the occasion for the act. Of course, the Legislature cannot annul or set aside the judgment of a court, but it may remove a defect from which the judgment proceeded.”
Therefore, as long as Van Emmerik’s claim has not ripened into a vested right, the legislature could validate the tax that the judgment of the court found invalid in Matter of Sales Tax Refund Applications, supra. This retroactive tax would only go back three years which is a reasonable time and not violative of due process as indicated in Comptroller of Treasury v. Glenn L. Martin Co., 216 Md. 235, 140 A.2d 288 (1958).
In any event, the amount eventually due to Van Emmerik would be a trifling sum, which has been paid into the state treasury and used to provide services that Van Em-merik and all other citizens and utility consumers have enjoyed. Alatalo v. Shaver, 45 S.D. 163, 186 N.W. 872 (1922), would therefore lend a further ground for sustaining a retroactive tax, for a reasonable time limitation, under a theory of a moral duty on the part of those who reaped the benefits should pay the cost thereof. If a re-fundáis made from the state treasury, Van Emmerik and all other citizens and utility consumers would have to contribute to make the payment through some additional tax — as a state must depend on its citizenry for funds. The end result, of sustaining Senate Bill 40 for a reasonable amount of time, would not be harsh or oppressive to anyone and public interest and common sense cries out, in this case, for validating the retroactive increase in tax on any refund ordered paid by the State.
Therefore, I would hold that Senate Bill 40, insofar as it provides that all taxes which must be refunded to the Utilities under SDCL 10-45-53, is a valid retroactive tax for the purpose of curing an oversight on the part of the legislature.
I would not, however, validate this tax back to the year 1969 for several reasons:
1. I am convinced that “there [must] exist a time period beyond which a statute may not constitutionally be given retroactive effect .. . . ” Martin, supra, 140 A.2d at 297. A time limitation is absolutely necessary, “otherwise a legislature could constitutionally impose a new or increased tax retroactively for a period of 25 or 50 years which would be so onerous or confiscatory and unjust as to bankrupt the individuals or corporations thus taxed.” Martin, supra, 140 A.2d at 298. There are ultimately some fixed time limitations which cannot be traversed.
No court, prior to the majority herein, has even approached the time frame of 10 years. It appears that a much more reasonable and shorter time has *709been the limitation reached to this point. The majority would therefore be exceeding precedent by almost five times the maximum time approved to date. It seeks to evade the limitation of the Martin decision on the grounds that the present action is a “ratification” case and that the legislature is free to ratify the imposition of an increased tax just so long as it cannot be classified as a new tax which has already been collected back ad infinitum. Are we really prepared to say that the State taxing authorities can collect an increased tax for 10, 20, 50 or 100 years without legislative sanction and then have it ratified by retroactive legislation?
If so, the Bureau of Finance would be free to collect whatever increased taxes it deems the State needs, and an executive-dominated legislature need only meet every 10, 20, 50 or 100 years to ratify the Bureau’s actions by retroactive legislation, as they are only “ratifying an increase of an existing tax which has already been imposed and collected.” This is not the democratic way and might well lead to another Boston Tea Party.
I would propose that the increased tax be limited to that period of time needed to shield the State, to-wit: ihe statutory limitation in SDCL 10-45-53 of three years. Such a result would merely strain the time limits of prior decisions; to go further would shatter the concept of a reasonable time limitation and may launch us down a path which I am not prepared to tread.
2. We would be attempting to validate a tax for the sole purpose of obviating any liability of the Utilities to Van Emmerik for the years previous to 1976. This liability does not affect the State, due to SDCL 10-45-53, and has the obvious effect of granting a special immunity and privilege to the Utilities. The test, in such a case, is set out in Matter of Certain Territorial Elec. Boundaries, Etc., 281 N.W.2d 65, 70 (S.D.1979) (emphasis added), where this court stated:
“[Ejxclusivity is not in itself prohibited by art. Ill, § 23. The grant of special or exclusive privileges for private benefit is within the prohibition of the constitution. Grants of special or exclusive privileges, even those that are essentially monopolistic in character, are not, however, forbidden, where the primary purpose of the grant is the promotion of the public interest and not the private benefit of the grantees.” That is exactly what is done by any retroactive statute which goes beyond the time needed to protect the State from liability, to-wit: the benefits and primary purposes enure to the private benefit of the Utilities. Contrary to the majority holding, this legislation does not grant immunity to a “broad class” of retailers, but rather it grants immunity to a single class of retailers.
3. It does not involve the public policy considerations mentioned above, where the State would be refunding a tax and then proceeding to levy additional taxes to pay for the refund. The argument could be made that the same public interest applies to the taxes that the Utilities have collected and paid into the state treasury prior to 1976, as they will be forced to obtain a rate hike in order to pay a refund. However, the public interest is not so apparent and urgent.
In the case of the State refunds, the state treasury would be depleted at a time when the State is grasping for sufficient funds to operate ordinary functions of state government; secondly, it will have to go through the cumbersome administrative process of determining the amount due to countless unknown (to it) utility users; and finally, the state would have to propose a new tax to the legislature to pay a refund at a time when tax is a dirty word.
The Utilities on the other hand, having complete control of the list of utility users, can simply give credit for any *710refund due and immediately impose and collect a rate hike to pay for it with an accompanying petition to the Public Utilities Commission (PUC) for validation. This is no different than the situation that the Utilities experience almost yearly when they impose and collect a rate hike of their own choosing, only to have it turned down or reduced by the PUC and later must give credit or a refund to their customers. The utility consumer would scarcely raise an eyebrow, as his utility bill generally reflects refunds on the last rate hike unilaterally imposed by the Utilities and not validated by the PUC and a new rate hike unilaterally imposed to more than cover the refunds ordered by the PUC in the last unsuccessful unilateral hike. Utility computers must already be set up for such an operation and it would be a “ho hum” problem for them, but it would be an administrative and legislative nightmare for the State.
4. This court should not validate a retroactive increase in tax going back 10 years and passed for the admitted purpose of shielding the Utilities from possible liability prior to 1976, as Van Em-merik’s only possible present claim to a vested property right stems from the refunds ordered to be paid by the State to the Utilities. By further validation back to 1969, contrary to cited court precedent, we are only endangering a decision which is otherwise supportable under the facts and the controlling law.
I would hold that the retroactive increase in tax, covering the years for which the State is liable, is valid. I would hold that the retroactive increase in tax prior to that date where the State is absolved from liability under SDCL 10-45-53, is invalid.