House Bill 847 in the 1976 South Dakota Legislature amended SDCL 58-30-23 to give the Director of the Division of Insurance discretion to waive the felony-conviction bar for general lines insurance agents (after 5 years post-conviction). SDCL 58-31-11 has identical felony-bar language for life and health insurance agents but was not amended. Did HB 847 implicitly extend the waiver authority to life and health agents too?
Plain-English summary
In the 1976 legislative session, the South Dakota Legislature passed House Bill 847. The bill amended SDCL 58-30-23, which set the qualifications for general lines insurance agents. The amendment added a proviso letting the Director of the Division of Insurance, at his discretion, waive the bar against licensing a person convicted of a felony, provided five years had passed since the term of punishment was completed. This was a softening of the original blanket disqualification for felony-convicted applicants.
Mr. Guffey asked AG Janklow a follow-up question. SDCL 58-31-11 contained an essentially identical felony bar for life and health insurance agents. The legislators' apparent intent in HB 847 was to give the Director general discretion to waive felony disqualifications across the insurance agent regime. But HB 847's text amended only SDCL 58-30-23, not SDCL 58-31-11. Did HB 847 reach SDCL 58-31-11 by implication?
Janklow's answer was no. South Dakota's general principles of statutory construction strongly disfavor amendment by implication. State v. Williamson (S.D. 1973) established that statutes are interpreted to effectuate the legislative intent, but the primary source of intent is the language of the statute itself. Purdy v. United States and 82 C.J.S. Statutes § 252 confirmed that amendment by implication is generally upheld only when a later statute is so repugnant to an earlier one that they cannot stand together.
SDCL 58-30-23 and SDCL 58-31-11 govern different categories of insurance agents (general lines versus life and health). They are independent provisions. Amending one does not implicitly amend the other.
Janklow acknowledged that the requestor was probably right about legislative intent. The substantive policy choice (giving the Director general waiver discretion) probably had a unified rationale across all insurance agent categories. But intent without textual realization does not carry the day. HB 847 amended SDCL 58-30-23 only. The Director's waiver discretion existed for general lines agents and did not extend to life and health agents.
Practically, if the legislature wanted parallel waiver discretion for life and health agents, it would need to pass a separate amendment to SDCL 58-31-11. The Director could not just extend his own discretion to a statute the legislature had not changed.
Currency note
This opinion was issued in 1976 during AG William Janklow's tenure. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. SDCL chapters 58-30 and 58-31 governing insurance agent licensure have been substantially restructured since 1976. Modern questions about insurance agent licensure, felony-conviction waivers, and the Director's discretion should be verified against current SDCL chapter 58-30 and any applicable Division of Insurance rules. The amendment-by-implication doctrine remains a recognized principle of South Dakota statutory construction.
What the opinion meant at the time
For the Division of Insurance, the opinion produced a clean operational answer: the Director could exercise waiver discretion for general lines agent applicants but not for life and health agent applicants. The same factual record (a felony conviction more than five years past) could produce a license for one type of agent and a denial for the other.
For applicants with felony convictions who wanted to become insurance agents, the practical effect was an unintended asymmetry. They could potentially get a general lines license (with the Director's discretionary waiver) but were categorically barred from life and health agent licensure.
For the legislature, the opinion was a soft signal that further legislation was needed if the policy goal was parallel waiver discretion. Cleanup amendments to fully implement the apparent intent would need to be passed.
For attorneys advising clients with felony convictions, the opinion was a reminder that proper amendments matter. A statutory change in one section does not flow downstream to similar-language provisions in other sections.
Common questions
Q: What's the difference between "general lines" and "life and health" insurance agents?
A: General lines (sometimes called property and casualty) agents sell insurance for property, vehicles, businesses, liability, and similar non-life-and-health risks. Life and health agents sell life insurance, health insurance, and similar coverages. The licensing regimes are separate because the products, training, and consumer protections differ.
Q: What is "amendment by implication"?
A: A doctrine that says a later statute can effectively amend an earlier statute even without expressly mentioning it, if the two are so inconsistent that they cannot both operate. South Dakota courts use this doctrine sparingly and only when the inconsistency is unavoidable. Here, SDCL 58-30-23 (amended) and SDCL 58-31-11 (unamended) could both stand, because they apply to different agent categories. No repugnancy required overriding the unamended one.
Q: Why is amendment by implication disfavored?
A: Because the legislature is presumed to know what statutes it has previously enacted and to amend them expressly if it intends change. Reading implied amendments into ambiguous legislative action would erode predictability and let courts (or executive agencies) effectively rewrite statutes the legislature did not change.
Q: Could the Director just refuse to enforce SDCL 58-31-11's felony bar?
A: No, that would be ignoring a statute the legislature had passed. The Director has discretion only where the legislature has granted discretion. For SDCL 58-31-11, the legislature had not granted waiver discretion as of 1976.
Q: Did the legislature ever fix this?
A: That's outside the scope of this opinion. Subsequent legislation in later sessions could have extended waiver discretion to life and health agents. Modern users should check current SDCL 58-31-11 (and successor provisions) for current rules.
Q: What does the 5-year time bar from punishment completion mean?
A: HB 847's waiver discretion required that "five years have elapsed since completion of the term or other punishment for conviction." So the Director could not waive the felony bar until at least five years after the applicant's release from prison, probation, parole, or whatever term applied. The five-year clock started at completion, not at conviction.
Background and statutory framework
South Dakota's insurance agent licensure regime is split across multiple chapters of SDCL Title 58. Chapter 58-30 governs general lines agents. Chapter 58-31 governs life and health agents. Each chapter has its own qualifications section (SDCL 58-30-23 and 58-31-11 respectively). The structural duplication reflects the historical separation of the property/casualty insurance industry from the life/health insurance industry.
HB 847's amendment to SDCL 58-30-23 added a "provided, however" clause giving the Director waiver discretion subject to a five-year post-punishment delay. This was a step away from the absolute bar in the prior text and a step toward a more nuanced licensing standard.
The question Mr. Guffey raised is a natural one when parallel statutory provisions exist. Did the legislature mean to update only one or both? The opinion accepts the requestor's representation that the substantive intent was probably to cover both categories. But Janklow held that intent without textual amendment did not suffice. The amendment-by-implication doctrine required either explicit cross-reference or unavoidable repugnancy, and neither was present.
The result is a clean rule of statutory construction with a less-clean practical outcome. The legislature's apparent omission was preserved. The Division of Insurance had to operate with asymmetric authority until further legislation aligned the two statutes.
Citations and references
Statutes:
- SDCL 58-30-23 (general lines insurance agent qualifications, as amended by 1976 HB 847)
- SDCL 58-31-11 (life and health insurance agent qualifications, not amended)
Cases:
- State v. Williamson, 211 N.W.2d 182 (S.D.) (statutes interpreted to effectuate legislative intent, primarily from language)
- Purdy v. United States, 146 F. Supp. 762 (amendment by implication requires explicit intent)
Treatises:
- 82 C.J.S. Statutes § 252 (amendment by implication doctrine)
Legislation:
- 1976 South Dakota House Bill 847 (amending SDCL 58-30-23)
Source
Original opinion text
House Bill No. 847
Dear Mr. Guffey:
You have requested an interpretation of House Bill 847 as enacted by the 1976 Legislature. House Bill 847 amended SDCL 58-30-23 by adding the proviso clause to read as follows:
58-30-23. An individual licensed as an agent shall be trustworthy, and be of good character and reputation as to morals, integrity, and financial responsibility, and shall not have been convicted of a felony or of any crime involving moral turpitude; provided, however, the director of the division of insurance may, at his discretion waive the restriction relating to conviction of a felon provided five years have elapsed since completion of the term or other punishment for conviction.
You state that the substance and intent of the amendment was to give the director discretion in issuing all licenses.
The specific question you ask is whether House Bill 847 can also be interpreted to apply to SDCL 58-31-11, which is a like provision relating to life and health insurance agents' licenses?
Statutes are to be interpreted so as to effectuate the intent of the Legislature. State v. Williamson, 211 N.W. 2d 182. However, in determining intent certain guidelines must be followed. Intention is to be ascertained primarily from the language of the statutes. Thus, amendment by implication is not favored and will generally only be upheld where the provisions of a later statute are so repugnant to an earlier statute that they cannot stand together. 82 C.J.S. Statutes § 252. In the absence of some expression of legislative intent, amendment by implication will not be allowed. Purdy v. United States, 146 F. Supp. 762.
SDCL 58-30-23 applies to "general lines insurance agents" qualifying under SDCL 58-30. On the other hand, SDCL 58-31-11 prescribes qualifications (which, except for the 1976 amendment, happen to be identical to those in SDCL 58-30-23) for life and health insurance agents. Although I am not in a position to dispute the contention in your opinion request that the intent of the legislation was to provide the director of the division of insurance with discretion in all applications, there is a total absence of that intent expressed in House Bill 847. Since SDCL 58-30-23 and SDCL 58-31-11 are provisions totally independent of each other and apply to different agents and licenses, it is my opinion that House Bill 847 cannot be interpreted as to apply to SDCL 58-31-11. The answer to your question is NO.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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