(concurring in part and dissenting in part).
I concur with the majority on all of the issues with the exception of affirming the trial court on its dismissal of the unequal treatment discrimination claim. To the dismissal of this discrimination action, I dissent.
This discrimination area has been thoroughly explored and articulated well both by majority opinions as well as by dissents in LaBore v. Muth, 473 N.W.2d 485 (S.D.1991), and Light v. Elliot, 295 N.W.2d 724 (S.D.1980). I do not desire to duplicate or explicate those arguments in this special writing.
There are two observations that I have not seen presented: 1. Statutes prohibiting the discrimination based on race, color, creed, religion, sex, ancestry, disability or national origin are common in all of the codes of the various states. What is not common is South Dakota’s statutory provision after the word “or” in SDCL 20-13-23:
It shall be an unfair or discriminatory practice for any person engaged in the provision of public accommodations because of race, color, creed, religion, sex, ancestry, disability or national origin, to fail or refuse to provide to any person access to the use of and benefit from the services and facilities of such public accommodations; or to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration therefor, the scope and equality thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair.
In researching SDCL 20-13-23 it was initially my intention that I would be able to find similar language in another state code, and find out how that state interprets that language in case law. In order to find out which states would have this language I used “Lexis,” computer assisted, on-line legal research (CALR). (See Mead Data Cent. v. Toyota Motor Sales, U.S.A., 702 F.Supp. 1031 (D.C.N.Y.1988); rev’d 875 F.2d 308 (2d Cir.1989); 875 F.2d 1026 (2d Cir.1989); West Publishing Company v. Mead Data Cent., Inc., 799 F.2d 1219 (8th Cir.1986); cert. denied 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987), for further explanation of CALR.)
In searching the codes of all fifty states, the Virgin Islands, and the District of Columbia, only seven statutes appeared to have this language. These seven statutes are only in the South Dakota code. The Federal Civil Rights Act of 1964 does not have this language in it.
From this analysis, it is my opinion that SDCL 20-13-23 is peculiar and allows the citizens of South Dakota redress from any unfair or discriminatory practice from public accommodations because of race, color, creed, religion, sex, ancestry, disability or national origin. Further, it allows all citizens relief from adverse, unlawful, or unequal treatment with respect to services and facilities of public accommodations which must meet the standards of the statute.
2. The interpretation given to the statute after LaBore, supra, is that not only are individuals charging discrimination required to come within the standard of being accorded adverse, unlawful or unequal treatment, but they further need to show *843that they come within a class of race, color, creed, religion, sex, ancestry, disability or national - origin.
If this is true, why would the legislature enact a separate statute * for equal treatment for disabled people? SDCL 20-13-23.1. Under the LaBore court interpretation, would not they come within SDCL 20-13-23?
We are to interpret the statutes as a whole and by giving statutory language its plain, ordinary, popular meaning. State v. Ventling, 452 N.W.2d 123 (S.D.1990). This is a remedial statute and in construing such a statute it is proper to take into consideration the mischief sought to be remedied. Curtis v. Michaelson, 206 Iowa 111, 219 N.W. 49, 52 (1928). A statute intended for the public benefit is to be taken most strongly against those who claim rights or powers under it and most favorable to the public. Hipp v. Prudential Casualty & Surety Co. of St. Louis, Mo., 60 S.D. 300, 244 N.W. 346 (1932). A remedial statute is to be liberally construed to effectuate its purposes. State for Use of Smith v. Tyonek Timber Inc., 680 P.2d 1148 (Alaska 1984).
The LaBore court, as justification for the class concept being required to seek relief, indicated that the policy is further evidenced by the language employed by the legislature when enacting the Human Relations Act of 1972:
AN ACT Entitled, An Act providing for equality of opportunity and prohibiting discriminatory practices based on race, color, creed, religion, sex, ancestry or national origin, with respect to employment ...
Note that the title also provides “equality of opportunity” which is not underlined nor referred to by the LaBore court.
The LaBore court also indicated in a footnote that the United States and all of the states have similar language. While the language may be similar, they do not include the language after the “or” as previously noted.
In his dissent Justice Wollman indicated that he would not read this statute as giving a cause of action to every party involved in a personal feud. Light, supra. He never interpreted such language as requiring class membership as described in the LaBore court.
My interpretation is that if you can come within the parameters of the unequal treatment statute, even if not a member of the class, you should be entitled to relief.
I am authorized to state that Justice HENDERSON joins me in this concurrence in part and dissent in part.
SDCL 20-13-23.1 provides as follows:
Any person with a disability is entitled to reasonably equal accommodations, advantages, facilities and privileges of all hotels, lodging places, places of public accommodation, amusement or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law and applicable alike to all persons.