(dissenting).
I respectfully dissent.
SDCL 1-26-28 provides for the extension of an existing license until the new or renewal license has been “finally determined by the agency.” Silver King Mines’ petition for rehearing contends this statute continues a preexisting license until the renewal application is “finally determined,” either upon complete review within the appellate process or until the time for appeal has passed, if no appeal is taken. I cannot agree with this interpretation.
The majority contravenes the plain meaning of SDCL 1-26-28 when it concludes “finally determined by the agency” refers to the completion of all judicial appeals. “Agency,” as defined in SDCL 1-26-1(1), does not include the circuit court or this court, since the Unified Judicial System is specifically excluded from the definition. To determine that SDCL 1-26-28 cannot be utilized until complete review within the appellate process is concluded is to seriously misinterpret the plain meaning of this statute as intended by the legislature.
Further, I can see no occasion for engaging in the mental gymnastics required to misinterpret the plain wording of SDCL 1-26 — 28 in order to accommodate some possible danger perceived by appellee in another statute. If the ten-day stay provided in SDCL 1-26-32 results in some dire consequences in the future, we can then deal with the problem, or better yet, the legislature can resolve the situation by amendment. It is not at issue here.
I would re-affirm the decision made by this court in Matter of Silver King Mines, 315 N.W.2d 689 (S.D.1982).
I am authorized to state that Justice HENDERSON joins in this dissent.