(dissenting).
Respondent Motor Sales prevailed in the circuit court, the Attorney General appealed and filed a brief on behalf of the Commissioner of Motor Vehicles. This court granted permission for amicus curiae to file a brief. Both briefs supported the constitutionality of SDC 1960 Supp. 44.0211. Unfortunately for its own business, the court's information and perhaps for constitutional law respondent did not appear or file a brief here.
As the majority opinion cites and concedes the Nebraska Supreme Court in 1939, the Virginia Supreme Court of Appeals in 1951 and an Ohio Appellate Court in 1957 have stricken down as unconstitutional legislative enactments such as the challenged SDC 1960 Supp. 44.0211(2). All that is said in the majority opinion of the growth of the automobile industry and its place in our society, the power of the legislature to regulate the sale of motor vehicles to prevent fraud under the police power, and the presumption of constitutionality of legislative acts was considered in the opinions cited and to me effectively and conclusively answered. Those interested are referred to them for their reasoning and logic, though some pertinent quotations therefrom are included here. Cf. Rebsamen Motor Co. v. Phillips, 226 Ark. 146, 289 S.W.2d 170, 57 A.L.R.2d 1256, and see note thereto in 57 A.L.R.2d 1265, 1275, and to the Nebraska opinion in 126 A.L.R. 740.
The Nebraska court recognized constitutional guarantees were to be determined "in the light of social and economic con*559ditions existing at the time the guaranty is proposed to be exercised, rather than at the time the Constitution was approved", that the motor vehicle industry "has grown to huge proportions" and motor vehicles "once luxuries, are now necessities". Then Justice Carter writing for a unanimous court Said:
"It is clear that the state cannot prohibit the ordinary business of buying and selling new or used motor vehicles. * * * It may * * * regulate a business * * * if it may become a medium of fraud. * * * But the legislature, under the guise of regulation, may not indulge in * * * the destruction of lawful competition, or the creation of trade restraints tending to establish a monopoly. (The court cited the Nebraska statute in effect the same as that challenged here) We agree that the limitation contained in subdivision (a) creates a monopoly in the persons enfranchised by the manufacturers of motor vehicles and thereby contravenes the Fourteenth Amendment to the Constitution of the United States, and sections 1, 3, 16 and 25, art. I, of the Constitution of Nebraska." Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388, 126 A.L.R. 729.
The Joyner v. Centre Motor Co., 1951, 192 Va. 627, 66 S.E.2d 469, opinion says of the statute:
"Its sole effect is to forbid to some the right to sell any or all new cars and by force of law grant that special right and valuable business privilege to a preferred few. And those select few are determined upon and limited to those to whom motor vehicle manufacturers * * * decide to award contract franchises. (The court quoted from the Nebraska opinion and said it was in accord with its holding) that the above-quoted portion of the Act which gave the exclusive right to sell new cars to enfranchised dealers was unconstitutional."
The Ohio and Arkansas opinions restate and approve these principles in well considered opinions, which, until the Louisiana case cited by the majority, were unanimous in declaring such statutes unconstitutional. All of these cover a period from 1939 *560to 1957 and if current thought is of any significance the Nebraska court in 1963 cited and quoted from its Nelsen v. Tilley opinion with approval.
Perhaps one point should be made clear. As the Nebraska court stated, a person may do business with whomsoever he desires or refuse business relations with any person he sees fit. That is his concern and judgment. But that is a separate and distinct proposition from the state legislature by law prohibiting a person from engaging in business without the whim or pleasure of a manufacturer of a product. It is one thing for Ford, General Motors or other corporations to grant a franchise to or contract with dealers of their choice, but another for the legislature to delegate and limit that right by law to such corporation. The manufacturer may refuse to deal or sell to a person, but the state cannot deny, or by a fine or jail sentence punish, the exercise of that right. Yet that is what the state has here decreed and determined to enforce by penalties and sanctions. SDC 1960 Supp 44.0211 prohibits any person from engaging in the business of selling motor vehicles without the license therein required and no application for the license may be granted without the franchise from the manufacturer. SDC 1960 Supp. 44.9953 makes a violation of SDC 1960 Supp. 44.0211 a crime, a misdemeanor punishable, probably under SDC 13.0607, by a jail sentence up to one year, a $500 fine or both. In addition, the license of a used car dealer may be revoked by the Commissioner, or as here determined, suspended for the reason the dealer sold a new car without the license which was denied to it, not by a state official for some valid reason or judgment but only because a manufacturer decided not to give it a franchise. Such statutes did not meet the constitutional standards of the courts cited nor do they mine. These standards and philosophy have been stated before in my dissents in State v. Jorgenson, 81 S.D. 447, 464, 136 N.W.2d 870, 880, discussing constitutional limits of the legislature as to appropriations, and State ex rel. Kornmann v. Larson, 81 S.D. 540, 552, 138 N.W.2d 1, 8, with reference to the power retained in the people by referendum. It seems the court is taking another step in extending governmental control over the individual's personal liberties and rights in which I cannot concur and am required to dissent.