(dissenting).
The Legislature in 1966 enacted the statute known as the Dairy Industry Marketing Act. The statute is Chapter 9, Laws 1966, and is included in South Dakota Compiled Laws 1967 as Chapter 37-3. The declared purpose of the statute is to outlaw trade practices "now being carried on in the sale of dairy products which are unfair and unjust and which if continued will jeopardize the public interest in securing a sufficient supply of properly prepared dairy products and in preserving the dairy industry of this state free from monopolistic and anticompetitive influences." SDCL 1967, § 37-3-8.
The undisputed facts here are that defendant corporation has its principal place of business in Sioux Falls, South Dakota, where it operates a plant for the processing of ice cream which it retails in stores operated by it in Sioux Falls and vicinity. This action was commenced to enjoin defendant corporation from selling ice cream at a price less than the minimum price al*351legedly fixed by the State Dairy Marketing Commission. The trial court after hearing found that there was no violation of the act to be enjoined and denied injunctive relief.
Defendant was charged with violating the provisions of SDCL 1967, § 37-3-10, which provides:
"It shall be unlawful for any processor, distributor or retailer to sell, advertise, or offer for sale any dairy product for less than the wholesale price established by the dairy products marketing commission, or the wholesale price plus that portion of the cost of doing business, as defined in § 37-3-9, when sold by a retailer."
The Statute, SDCL 1967, § 37-3-34, provides substantial penalties to be imposed upon any person found guilty of violating any of its provisions.
It is a cardinal canon of statutory construction as indicated in the majority opinion that where the language of a statute is plain and unambiguous a court may not resort to construction. I do not agree that the statute is plain and unambiguous and that Section 37-3-10 applied to defendant as a retailer. An intention cannot be imputed to the legislature except that to .be gathered from the terms of the statute. It is not the function of a court to amend a statute to avoid or produce a particular result. Elfring v. Paterson, 66 S.D. 458, 285 N.W. 443. "Wholesale price" as defined by the statute is the price charged by a processor or distributor to a customer for resale. SDCL 1967, § 37-3-9 (11). Defendant processed, and did not purchase from a processor or distributor, ice cream which it sold as a retailer. A distinction is recognized in Section 37-3-9(10) quoted in the majority opinion between the retailer purchasing at wholesale and a retailer processing its own dairy products. Since under the undisputed facts defendant did not come within the ambit of the statutory prohibition, I would affirm the judgment of the trial court.
HANSON, J., concurs in dissent.