State v. Young

2001 SD 76, 630 N.W.2d 85, 2001 S.D. LEXIS 76

• Court: South Dakota Supreme Court
• Decided: June 13, 2001
• Docket: None
• Status: Published

Opinions

AMUNDSON, Justice.

[¶ 1.] The State filed a petition for intermediate appeal, granted by this Court, from a judgment holding that the double penalty provision provided by SDCL 32-22-56 does not apply to overweight axle violations. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On March 2, 2000, Kenneth Young picked up a load of hay near Wor-land, Wyoming and was headed home to Wisconsin. He was driving his own semi-tractor pulling a new 1999 flatbed trailer. At Worland, his total truck weight was 73,560 pounds with each axle weighing less than 20,000 pounds, weighed on a certified elevator scale. Pursuant to SDCL 32-22-16, Young was entitled to carry up to 20,000 pounds per axle and have a total vehicle weight of 80,000 pounds.

[¶ 3.] He entered South Dakota on interstate I 90 in Meade County and was weighed at the Tilford Port of Entry near Sturgis. His total weight on this scale was 76,080 pounds, with one axle weighing 32,-420 pounds. This was found to be over the 20,000 pound weight limit per axle.

[¶ 4.] Young was convicted of violation of SDCL 32-22-16 in magistrate court and, under the schedule provided by SDCL 32-22-55, assessed a penalty of 37½ cents per pound for the 12,420 pound overage, a total of $4,657.50. The magistrate then doubled Young’s penalty, applying SDCL 32-22-56, since the overage exceeded 10,000 pounds. Young appealed to the circuit court, where his conviction was upheld but remanded to magistrate court for recalculation of the penalty. The circuit court held that SDCL 32-22-56 did not apply where the individual axle weight exceeded statutory limits, but applied only to the gross vehicle weight. The State appeals this determination of the circuit court.

ANALYSIS AND DECISION

[¶ 5.] The sole issue on appeal is whether the double penalty provision of SDCL 32-22-56 applies to overweight axle violations where the whole truck weight is less than the 80,000’pound maximum allowed by SDCL 32-22-16(3). This is our first opportunity to interpret SDCL 32-22-56, which was amended in 1999. As this appeal requires we engage in statutory construction, the applicable standard of review is de novo. Mattis v. Weaver Electric Inc., 2000 SD 150, ¶ 8, 619 N.W.2d 526, 528. The statute provides:

In any case where the motor vehicle is absolutely overweight beyond ten thousand pounds, the pounds by which the vehicle is so overweight shall be assessed at double the penalties prescribed in § 32-22-55.¹

[¶ 6.] Interpreting statutes according to their plain language is a primary rule of statutory construction. Nickerson v. American States Ins., 2000 SD 121, ¶ 11, 616 N.W.2d 468, 470. The plain meaning definition of “absolutely” is “definitely and completely,” with “completely” defined as “having all necessary or normal parts, components, or steps; entire.” American Heritage Dictionary 5, 285 (3d ed. 1997). Black’s Law Dictionary defines “absolutely” as “completely; wholly; without qualification.” Black’s at 9 (6th ed. 1990). By its plain language, SDCL 32-22-56 refers to the weight of the motor vehicle itself and by the phrase “absolutely overweight,” refers to the weight of the total vehicle rather than any of its individual parts. The statute refers to a vehicle that is completely, entirely or wholly overweight, not merely overweight on a separable part of the vehicle. The language of the statute is “the pounds by which the vehicle is so overweight,” not an identified part of the vehicle.

[¶ 7.] The plain language of SDCL 32-22-55 also supports this conclusion. In providing the schedule of penalties for overweight named parts of a motor vehicle, it includes this instruction: “The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation.” (emphasis added). This language precludes assessment of multiple rates, or a double penalty for an overweight part of a vehicle.² The Legislature has already, in this statute, enhanced the penalty based on increasing amounts of weight on the axle. The next statute, SDCL 32-22-56, applies to the whole vehicle.³

[¶ 8.] Another primary and well-settled rule we adhere to when construing statutes is the presumption that the Legislature does not insert surplusage into its enactments. Nielson v. AT & T Corp., 1999 SD 99, ¶ 16, 597 N.W.2d 434, 439. If the Legislature did not mean this statute to apply to the weight of the total vehicle, the phrase “absolutely overweight” is unnecessary. In fact, if the absolute or entire weight of the vehicle was not the concern of SDCL 32-22-56, the whole statute becomes surplusage. SDCL 32-22-55 provides a schedule that lists increasing amounts of penalty for increasing degrees of overweight up to and in excess of five thousand pounds. By its plain language, it applies where the overweight is “upon any wheel, axle, or groups of axles....” If the double penalty for weight in excess of ten thousand pounds provided by SDCL 32-22-56 was meant to apply to an overweight axle (or wheel or group of axles) the Legislature could have included this provision into the schedule provided by SDCL 32-22-55, which already existed and applies to overweight parts of the vehicle.

[¶ 9.] Examination of legislative history reveals that in 1953, both statutes were part of the same session law.⁴ However, while the categories of penalties for overweight axles, wheels and groups of axles were dependent clauses of the same first paragraph of that session law, the double penalty for an absolutely overweight motor vehicle, a separate class from the individual vehicle parts, was provided by separate paragraph.

[¶ 10.] In 1967, the Legislature revised our system of codified laws, renumbering and amending the single predecessor statute by enacting two statutes, which separated the schedule of penalties for overweight parts of vehicles from the double penalty provision that is only invoked “where the motor vehicle is absolutely overweight.” Our affirmance of the circuit court’s decision is the only interpretation that permits these two statutes to be construed together and harmonized, giving effect to all their provisions, another primary and well-settled rule of statutory construction. Barton, 2001 SD 52 at ¶ 26, 625 N.W.2d at 281; Hot Springs Ind. Sch. Dist. No. 10 v. Fall River Landowners Ass’n, 262 N.W.2d 33, 36 (S.D.1978).

[¶ 11.] We assume that the Legislature, when enacting a provision, has in mind previously enacted statutes relating to the same subject. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 184 (S.D.1986); Feiok, 364 N.W.2d at 539. Both SDCL 32-22-55 and 32-22-56 were amended in 1999. SDCL 32-22-55, providing the schedule of penalties for Young’s overweight axle, was amended by 1999 SD Sess.L. ch. 162, § 4.⁵ SDCL 32-22-56, the statute at issue, was amended by § 5 under the same Session Laws.⁶ It cannot be conceived the 1999 Legislature did not have 32-22-55, providing the penalties for specific parts of a vehicle found to be overweight, in mind when it enacted and amended 32-22-56, providing the penalty “where the motor vehicle is absolutely overweight beyond ten thousand pounds.”

[¶ 12.] Finally, we recognize that the Legislature knows how to exempt or include items in its statutes. See Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 10, 545 N.W.2d 834, 836 (excluding a person’s right to collect worker’s compensation benefits); Jasper v. Smith, 540 N.W.2d 399, 403 (S.D.1995) (exempting property from attachment of a lien); Sander v. Geib, Elston, Frost Pro. Ass’n, 506 N.W.2d 107, 124 (S.D.1993) (including an entity as a beneficiary). If the Legislature had meant that a single axle, overweight beyond ten thousand pounds, could invoke the double penalty, it would have said so. As noted above, there already existed a provision scheduling the penalties for specific parts of the vehicle found to be overweight, and the provision imposing a penalty for axles exceeding weight restrictions by more than five thousand pounds necessarily includes weights in excess of ten thousand pounds. That penalty is 37⅛ cents per pound of excessive weight, whether the axle is 5001, 7001 or 10,001 pounds in excess, or, as in this case, 12,420 pounds overweight.

[¶ 13.] The order of the circuit court is affirmed.

[¶ 14.] SABERS and KONENKAMP, Justices, concur. [¶ 15.] MILLER, Chief Justice, and GILBERTSON, Justice, dissent.

1 . This is the schedule of penalties under which Young was assessed 37 ½ cents per pound of overweight. It 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 shall be fined in addition to, and not in substitution for, any other 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 if such excess is three thousand pounds or less.

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

In an amount equal to twenty-two and one-half cents per pound for each pound of such excess or combined excess weight if such excess exceeds four thousand pounds and is five thousand pounds or less.

In an amount equal to thirty-seven and one-half cents per pound for each pound of such excess or combined excess weight if such excess is more than five thousand pounds. The fine schedule in this section is assessed at a single rate according to the cents per pound penalty for the highest weight violation.

(emphasis added).

2 . According to the hearing transcript, this is precisely how the magistrate court interpreted the statute when it assessed Young double the 37¾ — cent per pound penalty for his overweight axle; that is, any axle more than 5,001 pounds overweight was assessed at 75 cents per pound penalty. However, SDCL 32-22-55 already provides that the penalty for overweight axles in excess of 5,000 pounds (which would include those weights over 5,001 pounds) is 37½ cents per pound overweight.

3 . The dissent cites to a Georgia case, Alexander v. State, 228 Ga. 179, 184 S.E.2d 450 (1977), as instructive to tire determination of the question before this Court. However, the Georgia court applied a statute different from our own to facts that did not involve a question of a double penalty for an overweight vehicle. There, the plaintiff was charged a penalty for overweight axle load to which he filed a motion to dismiss claiming the statute did not prescribe a penalty for overweight axle loads, only overweight trucks. Mr. Young does not dispute the penalty for overweight axle, only that our statutes do not permit enhancement of that penalty by application of SDCL 32-22-56 which applies to overweight of the total vehicle. No one disputes that the state has an interest in unnecessary wear on our highways, see State v. Barton, 2001 SD 52, ¶ 14, 625 N.W.2d 275, 279 (“The state has a substantial interest in protecting its highways from overweight violations.”), however, the Georgia case is inappo-site to the one before us.

4 .The statute imposing weight restrictions on motor vehicles using our state highways and providing a criminal penalty for violation of that statute was first enacted in 1929. SDCL 32-22-16; State v. Feiok, 364 N.W.2d 536, 539 (S.D.1985); 1929 SD Sess.L. ch. 251, §§ 39, 61. In 1951, the predecessor of SDCL 32-22-55 was enacted. 1951 SD Sess.L. ch. 235. By 1953, language from the predecessors of both SDCL 32-22-55 and 32-22-56 can be found in the same session law. 1953 SD Sess.L. ch. 247.

5 . This statute was originally enacted in 1951. The 1999 amendment increased the penalties in each overweight category.

6 . As previously noted, this statute was originally enacted in 1953, two years after enactment of SDCL 32-22-55. The 1999 amendment substituted “ten thousand pounds” for the previous statutory language of “the greatest permissible compensation plate weights for a vehicle in its class,” and substituted "shall be assessed” for “may be assessed,” making the double penalty mandatory. In re Groseth Int’l, Inc., 442 N.W.2d 229, 231-32 (S.D.1989). The phrase "[i]n any case where the motor vehicle is absolutely overweight” has remained unchanged since 1953.