SD Official Opinion (id=1734) 1967-08-15

We have two statutes that seem to conflict. A 1959 act exempts construction and highway-maintenance equipment from license plates when it's running on a state oversize permit. A 1963 act requires the same kinds of equipment to get a special $10 distinctive plate when used infrequently on highways. If a contractor has an oversize permit, does he still have to get the special $10 plate?

Short answer: Yes. The 1963 act (Chapter 275 of the Session Laws of 1963) is a specific statute that requires a distinctive plate for specified heavy equipment used infrequently on highways. The 1959 act (SDC 44.0336-3) is a more general exemption from license plates for highway-construction equipment running on an oversize permit. Under standard rules of statutory construction, a specific later statute is read as an exception to a general earlier one. The 1963 special plate requirement controls, and contractors must register the equipment and pay the $10 fee under the 1963 act regardless of any 1959 exemption.

Disclaimer: This is an official South Dakota Attorney General opinion. AG opinions are persuasive authority in South Dakota but are not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed South Dakota attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

Plain-English summary

South Dakota had two layers of regulation for heavy construction equipment that occasionally moved on public highways:

The 1959 act, codified as SDC 1960 Supp. 44.0336-3 and originating as Chapter 263 of the 1959 Session Laws, was an exemption. It said that any motor vehicle, trailer, semitrailer, or other equipment used "exclusively for the construction or maintenance of highways" that was on the road only because of its excessive size or weight (and was running on a special oversize permit under SDC 1960 Supp. 44.0342) was exempt from purchasing license plates or compensation plates. The reasoning was that the oversize permit fee already covered the state's interest in regulating the equipment's road use.

The 1963 act, Chapter 275 of the 1963 Session Laws, set up a different regime. Equipment that "heretofore could have been licensed or compensated for unusual use of the highways," and that was used for "township roads, stockwater dugouts, dams, and other soil and water conservation practices on farms and ranches, or the construction or maintenance of highways," could now operate on the highways infrequently and occasionally without paying the regular licensing/compensation fees. But the owner had to apply to the Commissioner of Motor Vehicles for a special distinctive plate, pay a $10 fee, and certify that the equipment was used only infrequently and occasionally on highways. The Commissioner could draw on Motor Patrol information in making the determination. The plate expired on March 31 following the calendar year of issuance. Equipment licensed under the 1963 act remained subject to personal property tax.

The two acts overlapped. A piece of construction equipment used infrequently on highways for highway maintenance could potentially fall under either the 1959 exemption (if it had an oversize permit) or the 1963 special plate (if the Commissioner found it qualified). The question was whether having the oversize permit under the 1959 framework let the contractor skip the 1963 special plate requirement.

The AG worked through standard rules of statutory construction:

Repeals by implication are not favored; courts try to give both acts effect if possible. Black Hills Flume, Coler v. Rhoda, Brookings County v. Sayre, Jacobi v. Clarkson, Security State Bank v. Breen, Argo Oil Corp. v. Lathrop.
But two irreconcilably repugnant acts cannot both stand, and the later one repeals the earlier. Collins v. State, Somers v. State, Busby v. Riley.
When a general statute and a specific statute cannot both fully take effect, the specific is read as an exception to the general. Sanford v. King, State v. Mudie, Antonen v. Swanson; also Varney v. City of Albuquerque, Herman v. Baltimore, State ex rel. Kearns v. Lindsfoos.

The Varney case was a good illustration. New Mexico had a general statute letting cities build "needful buildings" with a majority bond-issue vote, and a specific statute letting cities build auditoriums with a two-thirds vote. The court held that for auditorium bonds the specific two-thirds requirement applied, not the general majority rule.

Applying these rules, the AG concluded that he did not need to find an outright repeal of the 1959 act by the 1963 act. The 1963 act was a specific statute providing for a distinctive plate for specified persons and specified vehicles. The 1959 act was a more general act covering the broader class. The 1963 specific act operated as an exception to the 1959 general act.

So the answer to question 1 was no: an oversize permit under the 1959 framework did not exempt a contractor from the 1963 special plate requirement for equipment within the 1963 act's class. And the AG noted that any personal-property-tax exemption under the 1959 act was overruled by the 1963 act, which explicitly subjected the equipment to personal property taxation.

Question 2 (which units were specifically exempt) did not need to be addressed, because the answer to question 1 was no.

Currency note

This opinion was issued in 1967. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's motor vehicle registration framework has been recodified into modern SDCL Title 32 (Motor Vehicles), with substantially restructured provisions on highway construction equipment, oversize permits, and special plate programs. Contractors operating heavy equipment on South Dakota highways today should consult current SDCL provisions, the Department of Revenue, and the Department of Transportation.

What the opinion meant at the time

For contractors with construction equipment, the opinion meant they had to apply for the $10 special plate under Chapter 275 of 1963 for each piece of qualifying equipment used infrequently on highways, even if they were already running on oversize permits. The oversize permit and the special plate were not interchangeable; the contractor needed both when applicable.

For the Commissioner of Motor Vehicles, the opinion was a directive to process special plate applications under Chapter 275 without exempting applicants who claimed the 1959 license-plate exemption. The 1963 statute prevailed. The Commissioner could draw on Motor Patrol information to verify that use was actually "infrequent and occasional," but the threshold question of which act controlled was resolved.

For county and township road supervisors who operated their own construction equipment, the analysis was similar. They would have applied for the special plate for each piece of equipment used on highways for non-routine purposes, and they would have paid the $10 fee. The personal property tax obligation also followed.

For farmers and ranchers using equipment for soil and water conservation practices (stockwater dugouts, dams, related work) and incidentally moving the equipment on highways between project sites, the opinion meant they needed the special plate when applicable. The 1963 act extended specifically to that class of users, alongside highway construction equipment.

For the state treasury, the opinion preserved a meaningful revenue stream. The $10 special plate fee was deposited to the State Motor Vehicle Fund. Without the AG's reading, contractors with oversize permits could have argued for an exemption from the special plate fee, which would have eroded the fund.

Common questions

Q: What counted as "infrequent and occasional" highway use?
A: The 1963 statute did not define the term. The Commissioner of Motor Vehicles made the determination case by case, using Motor Patrol input and the owner's certification. Equipment that lived on a particular construction site and only moved to and from the site a few times a year would have qualified; equipment that constantly moved between sites on highways would not.

Q: What was the difference between "license plate" and "compensation plate" under the 1959 act?
A: South Dakota's motor vehicle law distinguished between ordinary license plates (annual registration) and "compensation" plates for unusual use of highways (heavy or oversize equipment). The 1959 act exempted both for equipment running on oversize permits. The 1963 act replaced both with a single $10 distinctive plate for the narrower class of infrequent-use equipment within its scope.

Q: Why did the 1963 act add a personal property tax obligation?
A: The 1959 act's exemption from license/compensation fees had been read by some as also exempting the equipment from personal property tax. The 1963 act expressly subjected equipment licensed under it to personal property tax. The AG read that as confirming a broader change: equipment used for the narrower 1963 purposes was no longer property-tax-exempt regardless of the 1959 framework.

Q: Could a contractor still use the oversize permit?
A: Yes. The 1963 act expressly preserved the oversize permit requirement: "The provisions of this Act shall not alter that provision of law requiring vehicles of excessive width, height or weight from obtaining special permission from the Department of Highways before using such highways and the payment of a fee and obtaining such special permit." The oversize permit and the special distinctive plate operated in parallel for equipment within the 1963 class.

Q: What if the equipment was used exclusively for highway construction and never for soil/water conservation work?
A: The 1963 act covered both highway construction and soil/water conservation. Equipment used only for highway construction was still in the 1963 act's class. The earlier 1959 exemption did not cleanly cover such equipment once the 1963 act was on the books.

Q: What happened to equipment used for purposes outside the 1963 act's narrow class (not highway construction, not soil/water conservation)?
A: That equipment fell back on the ordinary licensing/compensation regime under Title 44 generally. The 1963 act did not extend its special plate to non-covered uses. The 1959 exemption may have continued to apply to truly highway-construction-exclusive equipment running on oversize permits if that equipment fell outside the 1963 act's "infrequently and on occasion" framing, but the AG did not address that edge case.

Background and statutory framework

South Dakota's motor vehicle code in the 1960s had grown by accretion. Successive legislative sessions had added provisions to address specific industries, specific types of equipment, and specific use cases. The result was a code with overlapping exemptions, special plates, and conditional provisions that did not always cleanly reconcile.

The 1959 act (SDC 1960 Supp. 44.0336-3) was a relatively narrow exemption tied to oversize permits. The legislature's apparent reasoning was that if a piece of equipment was on the road only because of a special permit (and was therefore already subject to the permit fee), it should not also have to pay annual license/compensation plates. The exemption was structured around the permit, not around the type of equipment.

The 1963 act (Chapter 275) was a different approach. It targeted a specific class of users (highway-construction users, plus farm/ranch users doing soil and water conservation work) and gave them a single $10 plate that handled both the highway-use regulation and the registration. The trade-off was that the equipment had to be used "infrequently and on occasion," not constantly. The act also tied the equipment back into the personal property tax base, reversing an apparent earlier exemption.

The AG's job was to harmonize the two acts. The harmonization approach (specific later act as exception to general earlier act) was sound but produced a result that disappointed contractors who had been relying on the 1959 framework. After the 1967 opinion, contractors operating in the 1963 act's class had to plan for both the oversize permit fee (for the heavy/wide loads) and the $10 distinctive plate fee (for the registration) plus personal property tax on the equipment.

The seven South Dakota Supreme Court cases the AG cited on implied repeal were all standard statutory construction authorities and would have been familiar to any South Dakota practitioner. The out-of-state cases (Varney, Herman, Lindsfoos) added persuasive support from other jurisdictions that had applied the same principles.

Citations and references

Statutes:
- SDC 1960 Supp. 44.0336-3 (originating as Chapter 263 of the Session Laws of 1959) (exemption from license/compensation plates for construction/maintenance equipment under oversize permit)
- Chapter 275 of the Session Laws of 1963 (special $10 distinctive plate for highway construction and soil/water conservation equipment used infrequently on highways; expires March 31 following calendar year of issue; subject to personal property tax)
- SDC 1960 Supp. 44.0342 (oversize permit statute)

Cases (South Dakota Supreme Court, on implied repeal and general/specific statutes):
- Black Hills Flume etc. v. Grand Island, Etc. Co., 2 S.D. 546, 51 N.W. 342
- Coler v. Rhoda, 6 S.D. 640, 63 N.W. 158
- Brookings County v. Sayre, 53 S.D. 350, 220 N.W. 918
- Jacobi v. Clarkson, 60 S.D. 401, 244 N.W. 535
- Security State Bank v. Breen, 65 S.D. 640, 277 N.W. 497
- Argo Oil Corp. v. Lathrop, 76 S.D. 60, 72 N.W.2d 431
- Collins v. State, 3 S.D. 18, 51 N.W. 776
- Somers v. State, 5 S.D. 321, 58 N.W. 804
- Busby v. Riley, 6 S.D. 401, 61 N.W. 164
- Sanford v. King, 19 S.D. 334, 103 N.W. 28
- State v. Mudie, 22 S.D. 41, 115 N.W. 107
- Antonen v. Swanson, 74 S.D. 1, 48 N.W.2d 161, 28 A.L.R.2d 1

Cases (persuasive, other jurisdictions):
- Varney v. City of Albuquerque, 55 P.2d 40, 106 A.L.R. 222 (general vs. specific statute on municipal bonds)
- Herman v. Baltimore, 22 A.2d 491, 173 A.L.R. 1310
- State ex rel. Kearns v. Lindsfoos, 161 Ohio St. 60, 118 N.E.2d 138, 43 A.L.R.2d 1316

Source

Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1734

Original opinion text

Motor Vehicles. Special License Plates Required by Chapter 275, Session Laws of 1963.

You have requested an official opinion interpreting the effect of SDC 1960 Supp. 44.0336-3 (which originated as Ch. 263 of the Session Laws of 1959) and Ch. 275 of the Session Laws of 1963.

Specifically you have asked the following question in regard to such statutes:

"1. Does the issuance of an oversize permit issued by the State Highway Commission exempt a contractor from licensing any oversize equipment included in the terms of Ch. 275 of the Session Laws of 1963?

"2. If any exemptions are allowed, what units are specifically exempt?"

SDC 1960 Supp. 44.0336-3 provides as follows:

"That notwithstanding any provision contained in SDC Title 44, as amended, any motor vehicle, trailer, semitrailer, motor propelled or trailed vehicle chassis, or any other item of equipment or machinery used exclusively for the construction or maintenance of highways which by reason of its excessive size or weight is operated upon any highway in this state under a special permit as provided by SDC 1960 Supp. 44.0342, or its owner or operator shall be exempt from purchasing any license plate or compensation plate prior to or at the time of the operation of any of the above items on any highway within the state of South Dakota.

"Section 1. That notwithstanding any provision contained in Title 44 of the South Dakota Code of 1939, as amended, any motor vehicle, trailer, semi-trailer, motor propelled or trailed vehicle chassis, which heretofore could have been licensed or compensated for unusual use of the highways in the State of South Dakota which were used for the construction of township roads, stock-water dugouts, dams, and other soil and water conservation practices on farms and ranches, or the construction or maintenance of highways in the State of South Dakota, may hereafter be operated upon the highways of the State of South Dakota without having made payment of the otherwise provided license and compensation fees for unusual use provided that the Commissioner of Motor Vehicles determines that such vehicles or items of equipment are but infrequently and on occasion operated on the highways of this state in conjunction with the construction of township roads, stockwater dugouts, dams and other soil and water conservation practices on farms and ranches, or the construction and maintenance of highways. The Commissioner of Motor Vehicles may use information furnished by the Division of Motor Patrol in making such determination.

"Section 2. Prior to so operating any such vehicle or item of equipment but on occasion or infrequently upon the highways of this state in conjunction with the construction of township roads, stockwater dugouts, dams and other soil conservation practices on farms and ranches, or highway construction or maintenance, the owner thereof for the calendar year in which such vehicle is to be operated shall file with the Commissioner of Motor Vehicles an application for a license on a form prescribed and furnished by the Commissioner, showing a description of such motor vehicle, trailer, semi-trailer, motor propelled or trailed vehicle chassis or other item of equipment and such other information deemed necessary by the Commissioner of Motor Vehicles. The owner shall at such time certify that such vehicle or item or equipment is but on occasion and infrequently operated on the highways of the State of South Dakota. In the event that the Commissioner of Motor Vehicles determines that such vehicle or item of equipment is but infrequently and on occasion operated on the highways of the State of South Dakota in conformity with the requirements set forth in this Act, the Commissioner, upon receipt of the proper application therefor, and receipt of the prescribed fee, shall issue a distinctive license plate, to be placed upon such motor vehicle or item of equipment before it is operated on the highways of the State of South Dakota. The fee for each motor vehicle or item of equipment shall be ten dollars.

"Section 3. That upon the issuance of such distinctive license plate, such vehicle or item of equipment shall be exempt from the payment of any other license or compensation fee for unusual use of the highways, as provided in Title 44 of the South Dakota Code of 1939, as amended. The provisions of this Act shall not alter that provision of law requiring vehicles of excessive width, height or weight from obtaining special permission from the Department of Highways before using such highways and the payment of a fee and obtaining such special permit.

"Section 4. Each registration and licensing permitted under the provisions of this Act shall expire on the 31st day of March following the calendar year in which the licensing is made.

"Section 5. Such fee so collected by the Commissioner of Motor Vehicles shall be transferred to the State Treasurer and by him credited to the State Motor Vehicle fund.

"Section 6. The property licensed under the provisions of this Act shall not be exempt from being taxed as personal property under the applicable provisions of statute."

There are several principles of statutory construction which are of assistance in interpreting these statutes in order to answer your questions. First: It is long settled that repeals by implications are not favored, and if by any reasonable construction both acts can stand, they should.

Black Hills Flume etc. v. Grand Island, Etc. co., 2 SD 546, 51 NW 342;

Coler v. Rhoda, 6 SD 640, 63 NW 158;

Brookings County v. Sayre, 53 SD 350, 220 NW 918;

Jacobi v. Clarkson, 60 SD 401, 244 NW 535;

Security State Bank v. Breen, 65 SD 640, 277 NW 497;

Argo Oil corp and State v. Lathrop, 76 SD 60, 72 NW 2d 431.

Second: Although repeals by implication are not favored, even in the absence of a repealing clause, two irreconcilable repugnant acts, passed at different times cannot stand, and the latter operates as a repeal of the former.

Collins v. State, 3 SD 18, 51 NW 776;

Somers v. State, 5 SD 321, 58 NW 804;

Busby v. Riley, 6 SD 401, 61 NW 164

Third: Where a general statute covering an entire matter is so inconsistent with a special statute covering some particular part thereof that effect cannot be reasonably given to both, the latter is to be read as an exception to the former.

Sanford v. King, 19 SD 334, 103 NW 28;

State v. Mudie, 22 SD 41, 115 NW 107;

Antonen v. Swanson, 74 SD 1, 48 NW 2d 161, 28 ALR 2d 1;