(specially concurring).
Chief Justice Charles Evans Hughes once wrote: “The cardinal principle of statutory construction is to preserve and not to destroy.” The majority opinion preserves the statute. “[Fjinally determined by the agency” does not mean “finally determined by the courts.” SDCL 1-26-28 should not be enlarged beyond its face. “[Tjhis court will not enlarge a statute beyond its face where the statutory terms are clear and unambiguous in meaning and do not lead to an absurd or unreasonable conclusion.” Ogle v. Circuit Court, Tenth (now Sixth) Judicial Circuit, 89 S.D. 18, 21, 227 N.W.2d 621, 623 (1975).
Appellant requested injunctive relief and it was denied; no evidence was permitted to determine if injunctive relief was proper. The grant or refusal of an injunction is a matter of equitable jurisdiction and lies within the discretionary power of a court. “It is settled in this state that injunction is not granted as a matter of course. Its grant or refusal rests in the sound discretion of the trial court under the facts of each particular case [.] ” Foley v. City of Yankton, 89 S.D. 160, 165, 230 N.W.2d 476, 478 (1975). Appellant cannot, and does not, maintain that the circuit court was required to grant a stay. However, appellant advocates, and rightly so, that the circuit court should have reviewed its showing, considered its evidence and argument, and then made a substantive ruling on the merits of the application for a stay. As mining exploration and the development of raw materials for energy take on an added importance to our nation, the forces of industrial technology and the concern of environmentalists clash. We see it here in South Dakota. It exists in this case.
Those of us involved in the daily struggles of the law know how painfully slow the disposition of an administrative appeal through the circuit court and Supreme Court can be. It is critical that competing ideas and forces may be fairly and timely heard. Axiomatic, I would think, is the right to be heard on the merits of an application for a stay to preserve the rights of the complaining party, pending the outcome of the litigation in chief. Otherwise, the very activity in question assumes a hue of permanency. Our courtroom doors must be open to hear the cry of the people, whomever they may be and whatever cause they may espouse, when they ask for redress of wrongs or alleged wrongs by an administrative agency. The courts are the last refuge for the people. And the courts must respond, lest there be a great indignation against them.
As one reads SDCL 1-26-28, it is difficult to envision that a fair interpretation thereof would preclude the equity side of a circuit court from issuing a stay. “In ascertaining the intention of the statute, the court’s interpretation should not prejudice the public interest or impair an existing right unless language within the statute requiring it to have such operation is so clear that no reasonable doubt can exist of such intention.” State Theatre Co. v. Smith, 276 N.W.2d 259, 263 (S.D.1979).