Behrns v. Burke

COLER, Justice

(concurring'specially).

While I concur in the result reached that SDCL 32-34-1 is constitutional, I cannot concur in that part of Justice Doyle’s opinion which reflects on the integrity of the jury system. The hypothetical cases set out in the majority opinion over-simplify the issues in those actions which are legitimately brought to the jury. To the extent also that the opinion deals with the wisdom of the guest statute, it is well settled that, “[i]t is not the function of the Court to inquire into the wisdom, policy, necessity, or expediency of legislation.” State ex rel. Dunker v. Spink Hutterian Brethren, 1958, 77 S.D. 215, 229, 90 N.W.2d 365, 373.

“All presumptions are in favor of the constitutionality of a legislative act. ‘ “And it is only when made to appear clearly, palpably, and plainly, and in such a manner as to leave no reasonable doubt or hesitation in our minds, that a statute violates some provision of the Constitution, and that we can consistently declare it void.” ’ ” (citations omitted) State v. Mee, 1940, 67 S.D. 335, 339, 292 N.W. 875, 877. “The power of the court to declare an act of the Legislature unconstitutional is an extraordinary power and should only be exercised in a case free from all reasonable doubt.” (citations omitted) Queen City Fire, Ins. Co. v. Basford, 1911, 27 S.D. 164, 168, 130 N.W. 44, 46.

This court, in Berens v. C.M.St.P. & P.R.R. Co., 1963, 80 S.D. 168, 120 N.W.2d 565, citing Nashville, C. & St. L. Ry. Co. v. Walters, 1935, 294 U.S. 405 — 434, 55 S.Ct. 486, 79 L.Ed. 949, recognized the rule that, “[a] statute valid when enacted my [sic] become invalid by a change in conditions to which it originally applied.” 80 S.D. at 176, 120 N.W.2d at 570. Further, House of Seagram v. Assam Drug Co., 1970, 85 S.D. 27, 176 N.W.2d 491, stands for the proposition that this court will reconsider a statute once deemed constitutional and declare it' unconstitutional.

*110The burden of proof, however, rests with the one who assails a classification in a law and he “ ‘must carry the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary, and not merely possibly, but clearly and actually unreasonable.’ ” (citations omitted) State v. Reininger, 1931, 59 S.D. 336, 339, 239 N.W. 849, 851. This court is not a fact finder, and our review “is limited to what appears on the face of the act and facts within the court’s judicial knowledge.” State ex rel. Kornmann v. Larson, 1965, 81 S.D. 540, 545, 138 N.W.2d 1; see also Stavig v. Van Camp, 1923, 46 S.D. 472, 193 N.W. 731.

Based upon essentially the same rules of construction heretofore set forth, the Supreme Court of the State of Delaware, after thorough review of the series of decisions considering Brown v. Merlo, 1973, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, stated:

“This contrariety of judicial opinion revolves basically around the question of whether the elimination of a Guest Statute, in the light of changing conditions, is within the realm of judicial action founded upon supposition and few facts, or whether it is more properly within the realm of legislative action founded upon empirical study.” Justice v. Gatchell, Del.Supr. 1974, 325 A.2d 97.

The record in the present case does not reflect such a diminution of the classification or erosion by statute or decisional law of the two basic purposes of the legislation as to render the statute clearly unreasonable. The following statement found in Justice v. Gatchell, supra, is particularly appropriate to the position of the court in the present case:

“On the basis of the record before us, even on the basis of information of which we might take judicial notice, we are unable to say that there are no longer any evils to be corrected, or permissible objectives to be accomplished, by the Guest Statute. Whether the concept of hospitality-protection or collusion-prevention has been so eroded by changing conditions, as to have dis-
*111appeared as acceptable justification for the Guest Statute, is a problem more appropriate for legislative solution than for judicial determination. The General Assembly has access to relevant information bearing upon these matters more significant than any afforded this Court, bound as it is by the limitations of the record of this judicial proceeding.” 325 A.2d at 102.
I am authorized to state that Justices WINANS and WOLLMAN join in this special concurrence.