State v. Feiok

364 N.W.2d 536, 1985 S.D. LEXIS 234

Opinions

WOLLMAN, Justice.

Defendant appeals from the judgment of the circuit court affirming the law-trained magistrate’s decision that imposed liability upon defendant under SDCL 32-22-55. We affirm.

On October 18, 1983, defendant was transporting a semi-trailer load of soybeans when he was stopped by a South Dakota Highway Patrol trooper and asked to drive his truck to a nearby scale site. After weighing the vehicle, the trooper charged defendant with a violation of SDCL 32-22-16, the scale ticket revealing that defend ant’s truck was 5,160 pounds overweight. After imposing a fine of $88 and costs in the amount of $12 for violation of the Class 2 misdemeanor provided by SDCL 32-22-16, the magistrate court then imposed a “fine” in the amount of $1,290 in accordance with the schedule set forth in SDCL 32-22-55.

Defendant contends that the penalty provided by SDCL 32-22-55 constitutes a double punishment for the same offense in violation of Article VI, § 9 of the South Dakota Constitution and the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution. We do not agree.

SDCL 32-22-16 provides:

No motor vehicle or combination of vehicles operating on a public highway may have a weight:

(1) In excess of twenty thousand pounds on any one axle, including all enforcement tolerances. However, a vehicle equipped with pneumatic tires and with axles spaced eight. feet or more apart may not exceed ten thousand pounds on a wheel;

(2) In excess of thirty-four thousand pounds on any tandem axle, including all enforcement tolerances. However, a vehicle equipped with pneumatic tires and with axles spaced eight feet or less apart may not exceed nine thousand pounds on a wheel or seventeen thousand pounds on an axle; or

(3) In excess of the maximum weight on two or more consecutive axles as determined by the formula detailed in § 32-22-16.1. However, in no instance may the gross weight of any vehicle or combination of vehicles exceed eighty thousand pounds on the interstate highway.

Two consecutive sets of tandem axles may carry a gross load of thirty-four thousand pounds each provided the overall distance between the first and last axles of such consecutive sets of tandem axles is thirty-six feet or more. A violation of this section is a Class 2 misdemeanor.

SDCL 32-22-55 provides:

Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle or groups of axles or upon more than one thereof greater than the maximum permitted by §§ 32-22-2 to 32-22-33, inclusive, §§ 32-22-47 and 32-22-48 and acts amendatory thereof shall be fined in addition to and not in substitution for any and all penalties now provided by law for such offense in the following amounts:

In an amount equal to five cents per pound for each pound of such excess or combined excess weight over one thousand pounds when such excess is three thousand pounds or less.

In an amount equal to ten cents per pound for each pound of such excess or combined excess weight when such excess exceeds three thousand pounds and is four thousand pounds or less.

In an amount equal to fifteen cents per pound for each pound of such excess or combined excess weight when such excess exceeds four thousand pounds and is five thousand pounds or less.

In an amount equal to twenty-five cents per pound for each pound of such excess or combined excess weight when such excess is five thousand pounds or more.

The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation.

“[Wjhether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction.” United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749 (1980). In construing such a statute, the reviewing court first determines whether the legislature indicated an express or implied preference for one label or the other in establishing the penalizing mechanism. If this preliminary review indicates that the legislature intended to establish a civil penalty, the second step in the analysis of the statute is to determine whether the statutory scheme is so punitive either in purpose or in effect as to negate that intention. Id.

Applying the first step of the analysis to the statute in question quickly reveals, of course, that the legislature used language commonly associated with criminal penalties. Standing alone, the words “shall be fined” and “fine schedule” on their face indicate that the sanctions set forth in that statute are to be deemed criminal in nature. That is not the end of our inquiry, however, for “[i]n the interpretation of an act of the legislature, it is the intent of that body that governs and not the literal meaning of the words employed.” Read v. Jerauld County, 70 S.D. 298, 302, 17 N.W.2d 269, 271 (1945); State ex rel. Sperling v. Bd. of County Comm’rs, 73 S.D. 361, 43 N.W.2d 232 (1950).

There are at least two reasons why we believe that the legislature did not intend that the sanctions imposed pursuant to SDCL 32-22-55 should be deemed criminal in nature. First, the statute imposing weight restrictions on trucks and providing for a criminal penalty for a violation of that statute was first enacted in 1929. See 1929 S.D.Sess.Laws ch. 251, §§ 39, 62. It was not until 1951 that the predecessor of SDCL 32-22-55 was enacted. See 1951 S.D.Sess.Laws ch. 235. It is a fundamental principle of statutory construction that in determining legislative intent a court “must assume that the legislature in enacting a provision has in mind previously enacted statutes relating to the same subject matter.” State v. Chaney, 261 N.W.2d 674, 676 (S.D.1978). See also State v. Hirsch, 309 N.W.2d 832 (S.D.1981); State Hwy. Comm’n, Etc. v. Wieczorek, 248 N.W.2d 369 (S.D.1976). Had the legislature intended that the financial sanctions mandated by SDCL 32-22-55 be penal in nature, the predecessor of SDCL 32-22-16 would likely have been amended accordingly. See, e.g., Cal. Vehicle Code § 42030 (West 1971); Ill.Ann.Stat. Ch. 95½, § 15-113 (Smith-Hurd 1971); Kan.Stat.Ann. § 8-1901 (1982); Neb.Rev.Stat. § 39-6, 184 (1984).

Second, had the legislature intended that the sanctions provided by SDCL 32-22-55 be penal in nature it would have reclassified the violation of SDCL 32-22-16 from a low-grade (now Class 2) misdemean- or (see SDC 1960 Supp. 44.9929) to a Class 1 misdemeanor or a felony, as the amount of the penalty imposed under SDCL 32-22-55 might warrant. SDCL 22-6-2(2) fixes the maximum penalty for a Class 2 misdemeanor at thirty days imprisonment in a county jail or a one hundred dollar fine, or both such fine and imprisonment. Obviously, the additional penalty imposed upon defendant pursuant to SDCL 32-22-55 greatly exceeds the maximum fine authorized by law for the commission of a Class 2 misdemeanor. It is true that shortly after the effective date of the statute now set forth in SDCL 32-22-55 the Attorney General issued two opinions indicating that the additional charges imposed pursuant to that statute are in the nature of a fine. See 1951-52 Attorney General's Reports page 242; page 257. Those opinions are not binding upon this court, however, and we conclude that they do not constitute a correct interpretation of the statute. See State ex rel. Widdoss v. Esmay, 72 S.D. 270, 33 N.W.2d 280 (1948). To give the statute the interpretation placed on it by the Attorney General would render void the imposition of any sanction in excess of that authorized for a Class 2 misdemeanor. To so hold would run contrary to the rule that “as between two permissible constructions of statutes, the one should be adopted that will advance the legislative purpose.” Friese v. Gulbrandson, 69 S.D. 179, 185, 8 N.W.2d 438, 440 (1943). Likewise, “[i]f a statute is fairly susceptible of two constructions, one of which will give effect to the act, while the other will defeat it, the former construction is preferred.” 73 Am. Jur.2d Statutes § 249 (1974).

We conclude, therefore, that notwithstanding the use of the words “shall be fined” and “fine schedule” in SDCL 32-22-55, the legislature intended to impose an additional sanction in the nature of a civil penalty. That other states may have spelled out their civil cost penalties for overweight vehicles in more specific language, see, e.g., Minn.Stat.Ann. § 169.871 (West 1984); N.D.Cent.Code §§ 39-12-11 to 39-12-20 (1980), may perhaps be a lesson in legislative draftsmanship, but it is not necessarily a bar to the result we reach with respect to our statute.

We turn, then, to the second step in our analysis of the statute, which is a determination whether the statutory scheme is so punitive either in purpose or in effect as to negate the legislature’s intention to impose purely a civil penalty. United States v. Ward, supra.

In Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), the United States Supreme Court set forth seven considerations to be weighed in determining whether a sanction is civil or penal in nature:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.

Mendoza-Martinez, supra, 372 U.S. at 168, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661 (footnotes omitted). As the Court pointed out in United States v. Ward, supra, the foregoing considerations, although neither exhaustive nor dispositive, are helpful and provide some guidance.

We conclude that only the fifth and seventh Mendoza-Martinez factors are relevant to our inquiry in the case before us.

With respect to the fifth factor, whether the behavior to which the sanction imposed by SDCL 32-22-55 is already a crime, the same considerations that led the Court in the Ward case to conclude that the sanction therein was civil in nature compels us to a similar conclusion here. The legislature may provide that one same act may result in both a civil and a criminal sanction. United States v. Ward, supra. The substantial length of time that elapsed between the enactment of the criminal penalty and the subsequent civil penalty dilutes the force of the claim that the latter is criminal in nature. Id. Here, as indicated above, the sanction provided by SDCL 32-22-55 was enacted twenty-two years after the criminal penalty imposed by SDCL 32-22-16.

With respect to the seventh factor, the apparent excessiveness of the civil sanction in relation to the purpose assigned to it, we conclude that the penalties authorized by SDCL 32-22-55, although certainly not insubstantial, are not so clearly excessive as to bear no relationship to the purpose for which they are imposed. We agree with the Supreme Court of North Dakota that the imposition of a penalty based upon the amount by which a vehicle is overweight is a reasonable way for the state to police the weight restrictions set forth in its statutes. State ex rel. Hjelle v. A Motor Vehicle, Etc., 299 N.W.2d 557 (N.D.1980). To accept defendant’s contention that the state must establish the specific amount by which the overloaded truck can be deemed to have damaged the highway upon which it was traveling prior to its being stopped would for all practical purposes render any statute imposing a civil cost penalty upon overweight vehicles unenforceable.

Footnotes

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Defendant’s final argument is that even if the sanction imposed by SDCL 32-22-55 is deemed to be civil in nature, he is entitled to a due process hearing before the state may impose the sanction. Although his contention that a due process hearing is necessary before one can be deprived of property is unexceptionable, see, e.g., State v. Miller, 248 N.W.2d 377 (S.D.1976), we conclude that defendant has been given all the process that is due him by reason of the procedural safeguards afforded to him under SDCL 32-22-16, the criminal statute. In order to secure a conviction of defendant under that statute, the state was required to prove defendant guilty beyond a reasonable doubt. What greater protection he deems would be afforded him by virtue of a subsequent civil proceeding in which the state would be required to prove its case only by a preponderance of the evidence, we do not know. Whether such a procedure should be afforded as a prerequisite to the imposition of the civil sanction provided by SDCL 32-22-55 is a matter left to the judgment of the legislature. See, e.g., the Iowa and North Dakota statutes cited above.

The judgment appealed from is affirmed.

MORGAN, J., and TAPKEN, Circuit Judge, concur. FOSHEIM, C.J., and HENDERSON, J., dissent. TAPKEN, Circuit Judge, sitting for WUEST, Acting Justice, disqualified.

We note that the Minnesota statute (§ 169.871, supra) provides for a civil penalty of $610 plus 20 cents per pound for each pound in excess of 7,000 pounds overweight. The California statute (§ 42030, supra) provides for a civil penalty of 20 cents per pound for each pound in excess of 10,001 pounds.