(dissenting).
I dissent.
RETROACTIVE/PROSPECTIVE ANALYSIS
In my view, the trial court erred in not addressing the retroactive versus prospective application issue, rather than merely ruling that the Walz decision was statutorily abrogated. The majority compounds the error through its flawed analysis of that issue.1 In my opinion, the trial court’s judgment should be affirmed on the basis of a prospective application of Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982).
*305A chronology of events demonstrates my rationale. In 1976, in Griffin v. Sebek, 90 S.D. 692, 245 N.W.2d 481, this court held that no common law dram shop action (and impliedly, no statutory cause of action) existed in this state. The plaintiff herein was injured on July 24,1982. On December 15, 1982, (five months after plaintiffs injuries) this court handed down Walz, recognizing for the first time a statutory law dram shop cause of action. Subsequently, the legislature amended the statutes as indicated in the majority opinion.
Certainly Walz cannot and should not be given a retroactive application for all injuries incurred prior to its. issuance. First of all, the majority claims that Walz did not overrule prior settled law, as “there was no prior settled law construing civil liability under SDCL 32-4-78(2).” I disagree.
As noted by Justice Morgan in his special concurrence in Walz, although the interpretation of SDCL 35-4-78(2) was “not adopted by the majority in Griffin, its mention implies that it was considered.” Furthermore, footnote 3 of the Griffin majority opinion indicates that the court did not wish to interpret SDCL 35-4-78 as the Walz court subsequently did. That footnote states:
In a very recent decision of the Nebraska Supreme Court, Holmes v. Circo, 1976, 196 Neb. 496, 244 N.W.2d 65, Justice Brodkey, the writer thereof, has reviewed not only that state’s legislative history but has also cited several decisions construing statutes which were similar to the Nebraska statute 53-180, R.R.S.1943, and which are not unlike SDCL 35-4-78. The Nebraska court also considered the landmark cases of Waynick v. Chicago’s Last Dept. Store, 1959, 7 Cir., 269 F.2d 322, 77 A.L.R.2d 1260 and Rappaport v. Nichols., 1959, 31 N.J. 188, 156 A.2d 1 in relation to their statutes and decisions and have, by that process, arrived at the same conclusion reached by this court. (Emphasis added.)
Griffin at 486.
Thus, Justice Morgan (and Justice Woll-man, on other grounds) was correct in stating that the Walz decision should apply only to the plaintiff therein and to those causes of action occurring on and after the date of the remittitur in the case. See also Lewis v. State, 256 N.W.2d 181 (Iowa 1977); City of Sioux Falls v. Mini-Kota Art Theatres, 247 N.W.2d 676 (S.D.1977) (where prior settled South Dakota law is overruled, the holding should be prospective only); City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975); Fisher v. Sears, Roebuck & Co., 88 S.D. 1, 214 N.W.2d 85 (1974) (prospectivity should apply especially where the public has reasonably relied on a different concept); Rollinger v. J.C. Penney Co., 86 S.D. 154, 192 N.W.2d 699 (1971), overruled on other grounds Smith v. Tobin, 311 N.W.2d 209 (S.D.1981).
As stated in Vogt v. Billion, 405 N.W.2d 635, 636-37 (S.D.1987) (citations omitted): “We recognize that ‘... the Constitution neither prohibits nor requires retroactive effect.... When retroactive application of a decision could produce substantial inequitable results, justification exists for holding the decision nonretroactive....’” (Emphasis added.) See also People in the Interest of S.H., 323 N.W.2d 851 (S.D.1982). Further, in State v. One 1966 Pontiac Auto., 270 N.W.2d 362, 365 (S.D.1978) (citations omitted), this court evaluated the following criteria “to determine the retrospective effect of a particular decision: (1) the purpose of the decision, (2) reliance on the prior rule of law, and (3) the effect upon the administration of justice.”2 *306Thus, the result for either prospective or retroactive application may vary from decision to decision depending upon the result of the criteria evaluated.
In my view, the analysis of the criteria in this case demands that prospective application be employed. As we said in Vogt, supra at 637, “... once the need is established for applying a principle prospectively there is a large measure of judicial discretion involved in deciding the time from which the new principle is to be controlling.”
[T]he modern rule followed by most courts is to “treat the question of how an overruling decision should operate as one of judicial policy rather than of judicial power, and recognize that varying results may be reached, depending upon the particular circumstances presented and the particular rule affected.”
Fountain v. Fountain, 214 Va. 347, 200 S.E.2d 513 (1973), cert. denied, 416 U.S. 939, 90 S.Ct. 1942, 40 L.Ed.2d 290, reh’g denied, 417 U.S. 927, 94 S.Ct. 2636, 41 L.Ed.2d 231 (1974), citing 10 A.L.R.3d at 1378, 1383-84; Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201, 206 et seq (1965).
For authority stating that the overruling decision should not be retroactively applicable to transactions or events which occurred prior to the time that the overruling case was decided see City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975); People v. Patton, 57 Ill.2d 43, 309 N.E.2d 572 (1974); 10 A.L.R.3d 1371 (1966). In fact, in City of Sioux Falls v. Mini-Kota Art Theatres, 247 N.W.2d 676 (S.D.1977), the court did not retroactively apply the decision of City of Aberdeen, supra.3
Authority supporting the proposition that the overruling case should not apply to pending cases include: Lyons v. Westinghouse Electric Corp., 235 F.Supp. 526 (S.D. N.Y.1964); Culpepper v. Culpepper, 147 Fla. 632, 3 So.2d 330 (1941); State v. Stout, 90 Okl.Crim. 35, 210 P.2d 199 (1949); Molitor v. Kaneland Community Unit Dist., 18 Ill.2d 11, 163 N.E.2d 89 (1959), cert. denied 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900 (1959); Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962). Holytz, in fact, was given prospective application subsequently in Hennington v. Valuch, 19 Wis.2d 260, 120 N.W.2d 44 (1963) and Marshall v. City of Green Bay, 18 Wis.2d 496, 118 N.W.2d 715 (1963). Molitor was prospectively applied in Terry v. Mt. Zion Community Unit School Dist., 30 Ill.App.2d 307, 174 N.E.2d 701 (1961); List v. O’Connor, 19 Ill.2d 337, 167 N.E.2d 188 (1960).
As stated in Prospective or Retroactive Operation of Overruling Decisions, 10 A.L.R.3d 1371, 1386 (1966):4
It has often been held or recognized that where particular persons have acted in justifiable reliance on a subsequently overruled judicial decision and retroactive application of the overruling decision would defeat their reliance interests, such reliance interests should receive adequate protection, and the overruling decision should be denied retroactive application in order to prevent such persons from being subjected to unfairness or undue hardship. For example, it has been recognized in connection with the overturning of immunities from tort liability that those who had previously been held immune may have decided, in reliance upon earlier decisions, not to obtain insurance coverage or not to bother investigating accidents or gathering or preserving evidence, and that such reliance interests are entitled to be protected. (Emphasis added.)
Similarly, in decisions overturning the doctrine of charitable immunity from tort liability, many jurisdictions have concluded that such organizations have relied on earli*307er decisions tb uphold their immunity. Such jurisdictions have retroactively applied the overruling decision to the overruling case itself, but prospectively to all other cases. In Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253, cert. denied 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209 (1966), wherein it appeared that charitable corporations could now be held liable for more than its liability insurance coverage, the court noted that such corporations may have relied on earlier decision in deciding whether to carry insurance, and how much. The court held the new rule would be, with exception to the instant case at hand, given prospective effect only from the date upon which the opinion in the instant case became final. See also Molitor, supra; Spanel v. Mounds View School Dist., 264 Minn. 279, 118 N.W.2d 795 (1962); Parker v. Port Huron Hospital, 361 Mich. 1, 105 N.W.2d 1 (1960); Kojis v. Doctors Hospital, 12 Wis.2d 367, 107 N.W.2d 292 (1961); Widell v. Holy Trinity Catholic Church, 19 Wis.2d 648, 121 N.W.2d 249 (1963); Burns v. Owens, 459 S.W.2d 303 (Mo.1970); Myers v. Drozda, 180 Neb. 183, 141 N.W.2d 852 (1966); Wojtanowski v. Franciscan Fathers, 34 Wis.2d 1, 148 N.W.2d 54 (1967); Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963) (wherein the abrogation of parental immunity was limited to the instant case and to causes arising on or after opinion was filed).
In view of our clear precedent, it is obvious that it is improper for this court to give Walz a retroactive application. Walz obviously established a new rule of law (specifically overruling a decision on an identical issue issued only six years earlier). Litigants have relied on our prior holding (Griffin) — for example, defendant here has acquired or terminated liability insurance coverage based upon the law in existence at the appropriate, material times; and presumably other liquor dealers have similarly relied and so acted in an attempt to insure against possible liability. Lawyers are placed in the difficult, if not untenable, position of not being able to properly advise their clients as to the state of the law — even to this day. Further, “substantial inequitable results” arguably exist by the retroactive application of Walz — e.g., possible defendants are subjected to severe monetary liability, all of which hinges on their ability or lack of ability to predict the law of this state when this court has, in reality, caused the confusion. Everyone, be they individuals, bible merchants, or bar owners, is entitled to fundamental fairness and due process.
CONSTITUTIONAL ISSUES
Before addressing the constitutional issues, it is important for me to point out that I philosophically agree with the majority and concurrences in their condemnation of any legislative act which prohibits injured parties from recovering against wrongdoers. Philosophically, too, I agree with this court’s prior holding in Walz, which recognized, for the first time, a cause of action for negligence for the violation of a statute making it a crime to sell liquor to minors, habitual drunkards, and persons who are obviously intoxicated. Further, I personally believe that the legislature acted improvidently in abolishing the rule in Walz and in specifically absolving liquor dealers from civil liability. However, my personal feelings cannot enter into my judicial decisions.
In a prior case in this court, our predecessors struggled with similar strong sentiments reluctantly upholding the constitutionality of the guest statute. Behrns v. Burke, 89 S.D. 96, 229 N.W.2d 86 (1975). Justice Doyle, writing for the majority, stated: “Any law that allows one person to injure another in this manner and escape liability is unreasonable. In fact, unreasonable may be too kind an expression.” 89 S.D. at 107, 229 N.W.2d at 92. Justice Doyle went on to say: “We sympathize with those who find the statute unjust, but we are bound to exercise judicial restraint (a great deal of it in this case) and not substitute our judgment and wisdom for that of the legislature.” 89 S.D. at 108, 229 N.W.2d 93.
I respectfully suggest that the majority author and those specially concurring are failing to exercise proper judicial restraint in order to reinforce or persist in enforcing a judicially created civil remedy. They *308seem to overlook that “ ‘[i]t is not the function of the Court to inquire into the wisdom, policy, necessity, or expediency of legislation.’ ” Behrns, 89 S.D. at 109, 229 N.W.2d at 93 (Coler, J., concurring specially — joined by Justices Wollman and Winans); State ex rel. Dunker v. Spink Hutterian Brethren, 77 S.D. 215, 90 N.W.2d 365 (1958).
Our constitution (Article VI, § 20) does not create rights of action. It provides for a right of access to the courts only for causes of action recognized by common law or statute. McMacken v. State, 320 N.W.2d 131 (S.D.1982) aff'd on reh’g 325 N.W.2d 60 (1982); Behrns, supra; Simons v. Kidd, 73 S.D. 41, 38 N.W.2d 883 (1949). Simons is clearly the recognized landmark case upon which most subsequent cases have relied5 (although conspicuously ignored by the majority, the special concurrences, and Daugaard v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D.1984)). In Simons, it was held that Article VI, § 20, prohibits the legislature from arbitrarily abolishing common law legal rights which existed or were known when the constitution was adopted. Certainly no one would seriously argue that dram shop actions were recognized, known, or contemplated by the drafters of our constitution. No one, including this court, has recognized that common law right.
Thus, Article VI, § 20, does not prohibit the legislature from abolishing this cause of action as it did not exist at common law at the time our constitution was adopted. Daugaard, supra; Simons, supra; Jensen, Legislative Larceny: The Legislature Acts Unconstitutionally When It Arbitrarily Abolishes or Limits Common Law Rights of Redress for Injury, 31 S.D.L. Rev. 82 (1985).
My general position and concerns in this case are the same as those previously well-articulated by Justice Wollman in his dissent in Daugaard, supra, wherein he stated:
If we were free to strike down statutes willy-nilly on the basis of our personal feelings, the result of the proposed opinion might be justifiable. Once this court, or any other court for thai matter, starts down that road, however, I see no end in sight. Although it might well be a heady, enjoyable experience to correct what we may perceive to be unwise, ill-conceived legislation, I see no warrant for us to do so in the absence of palpably unconstitutional legislative action. The judiciary should not have to do penance for the sins of the legislature.
349 N.W.2d at 428.
However, even applying the majority language of Daugaard, I believe that under settled law (e.g., Behms, Simons, etc.) the majority ruling here results in a substantial interference with and does violence to constitutional separations of power. It is not for this court, but rather the legislature, to determine and set public policy considerations in this state.
In McMacken, 320 N.W.2d at 133, Justice Morgan noted that it is settled law that the party challenging the constitutionality of a statute
bears the burden of proving beyond a reasonable doubt that the statute violates a federal or state constitutional provision. A strong presumption in favor of the constitutionality of the statute exists and is rebutted when it appears clearly, palpably and plainly that the statute violates some provision of the South Dakota Constitution.... On such challenges, we are unconcerned with the legislative wisdom behind [the statute], since we limit our review to the statute’s constitu-tionality_ (Citations omitted.)
I disagree with Chief Justice Wuest and Justice Henderson who both argue that unconstitutional special legislation has been enacted here. The well-settled applicable test for determining whether “special” legislation has been unconstitutionally enacted is:
(1) Does the legislation uniformly treat all members of the legislatively created class?
(2) Does the legislation promote the pub-lie intorcst^
State v. Smith, 88 S.D. 76, 216 N.W.2d 149 (1974). See also McMacken, supra; Matter of Certain Territorial Electric Boundaries, 281 N.W.2d 65 (S.D.1979).
*309In this case, the first prong of the test has been affirmatively met because all members of the legislatively created class (i.e. those persons injured by the particular class of potential defendants — liquor dealers) are uniformly treated (i.e., none can sue for damages). Behrns, supra; Jensen, 31 S.D.L.Rev. 82, supra. The constitution only prevents discrimination and lack of uniform treatment within a class, rather than between classes. McMacken, supra; Certain Territorial Boundaries, supra; Smith, supra; First National Bank v. Halstead, 56 S.D. 422, 229 N.W. 294 (1930).
The second prong is also affirmatively met since this court’s holdings in Smith and Certain Territorial Boundaries dictate that we must not second guess the wisdom of the disputed legislation. Additionally, in Certain Territorial Boundaries citing Smith, supra, we held that the legislative conclusion will not be overridden if it can be supported on any reasonable ground.
I am convinced that plaintiffs have failed to meet their burden of proving beyond a reasonable doubt that the legislation is unconstitutional. McMacken, supra. They have failed completely to establish that the statutory language is unreasonable and does not promote public interest. We cannot and should not speculate or second guess the legislature in its exercise of this constitutional prerogative.
I would affirm.
I am authorized to state that Justice MORGAN joins in this dissent.
. The majority would minimize the importance of this issue, suggesting that a violation of the statute is negligence per se. It totally fails to take into account that such argument was impliedly rejected by the majority in Griffin (since only the dissent reaches the point).
. In Fisher v. Sears, Roebuck & Company, 88 S.D. 1, 4, 214 N.W.2d 85, 87 (1974) (quoting Chevron Oil Company v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971)), this court stated:
"In our cases dealing with the nonretroac-tivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed.... Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective *306operation will further or retard its operation.’ ... Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the “injustice or hardship” by a holding of nonretroactivity.’ ” ... (Citations omitted.)
. The City of Aberdeen and City of Sioux Falls cases in this paragraph were cited by the majority, but clearly not properly analyzed.
. This annotation was relied upon by the majority. In reality, it is more supportive of my position.
. See Jensen, Legislative Larceny: The Legislature Acts Unconstitutionally When It Arbitrarily Abolishes or Limits Common Law Rights of Redress for Injury, 31 S.D.L.Rev. 82 (1985).