*1 merely seeking because insurer had to defend suits agreed all Mary- to enforce claims v. groundless. even Pickens though Co., Casualty 593; Village land 2 Neb. N.W.2d Co., Luck Casualty v. Hardware Mutual Wis. 306; N.W.2d United Pac. Co. v. Northwestern Nat. Ins. Co., Cir., Ins. see also Annotation in 49 F.2d A.L.R.2d 694. It does not there appear claim against coverage asserted the insurer within policy.
Judgment appealed from affirmed. Judges
All the concur. STATE, DEVERICKS, Respondent Appellant
(94 348) (File Opinion February 1959) No. 9709. filed *2 Ap- Falls, Defendant and
Henry Sioux Mundt, C. pellant. Atty. Gen., Mueller, Benjamin Saunders, Phil W. Walter Respondent. Attys. Gen., Asst. for Plaintiff and Mintener,
D. BOGUE, was arrest- on December J. Defendant unlawfully driving charged his the crime of ed with 77, a automobile on U. S. as Highway; 28.0209-1(57), Moody County, by Supp. defined SDC limit Dakota, in excess of a maximum South guilty the Justice He was found 60 miles an hour. appealed court where he was He circuit then Court. again pay guilty He $50. found and sentenced fine judgment appeals and sentence. from this now
->:511 probably Defendant admits he car was fo¿s at a in excess of 60 miles an He contends, ;hour. guilty however, .charged he of the- crime as legally no., as there was zone established where he driving, , limiting to 60 miles an0-hour. .speed limit which the relies was established In Commission. March adopted of 1955the State the follow- - ing July 1,1955. resolution to become effective on “No travelling Highways vehicle on South Dakota. State Trunk (60) sixty hour-days; shall exceed the miles (50) fifty per hour-nights; except already in zones *3 expressly to a restricted lesser limit.” This resolution was adopted pursuant authority granted High- to the the State way speed highways Commission to establish zones on on Highway system Chapter State Trunk the under of 187 (SDC 44.0303.). Su-pp. the Session Laws of 1941. Chapter empowered Highway 187 the State Commission any upon Highway “to determine and establish any part speed speed or zones, thereof limited which limit speed any person shall constitute the maximum at which may any operate upon or drive vehicle such zoned street highway portion or or thereof on so zoned and highway speed permissible the maximum in said zone conspicuously posted by signs adopted by has been the Highway State Commission.” High legislature empowered
When the the State way speed Commission to the establish limited zones provided Chapter in Section 187 of the Laws expressly provided: same the statute any any
“It shall be unlawful at time or at place any person upon drive vehicle the a speed or at in streets a excess of 50 miles per during lights hour the when hours on vehicles required during period are law or the when lights required speed a in are not at excess per miles hour.”
Clearly, purpose legislature been there would have no for the empowered Highway to have the State Comihission to assume, how- establish the same ever, limits. We cannot legislature law without some would enact a (Florida purpose cases, 1951- Alexander v. Booth view. 1952), purpose Fla., 56 of the So.2d 716. We believe empowering in so the State Commission provided Chapter to establish the zones as empowered expressly of the Laws 1941 is It clear. upon any State to establish any part Trunk or thereof limited zones existing particular therein. It of the because not conditions delegate power to the State applicable zone a statewide establish all Highways. Chapter insists, however, 168 the The State Laws enlarged powers Com- Chapter by eliminating chapter mission. This amended hour-nights per of 50 limit hour-days 60 miles lowing: and inserted in its stead fol- any any or “It at time at shall be unlawful any person place for drive vehicle greater streets then under the conditions reasonable and provided existing, except law.” as otherwise *4 “By argues provision of this The the that the elimination State duty authority establishing and of Highway upon and the Commission limits devolved other local authorities having jurisdiction over and streets highways.” High- the be that resolution of
It will noted the way adopted prior date to the effective adopted expressly Chapter 168 the of 1955 and of Laws by Chapter powers upon pursuant it 187 to conferred the argued might it be 1941. this of the Laws of Because Chapter necessary 168 to us consider not it is entirely upon powers opinion the our as base we could provisions the Commission under of the State argue however, Chapter defendant, not brief 187. The question. this appeal shall, therefore, if the as
We consider this any authority granted adopted pursuant to were resolution Chapter Chapter provisions of 168 well as 187. as under powers Unless the enlarged by Chapter 168, such
were powers the enactment of Chapter
as it had stem from 187 and would would purposes same be in force in the same manner and for the Chapter 168. before as well after the enactment of as general statutory rule construction In with the accordance part amended, it is “Where a section or of a statute is repealed not be and re-enacted in the considered portions form; amended but are not altered are having to be considered as been the law from time they provisions when enacted were and the new are to be considered as been enacted at the time of the McCarty, amendment.” State ex rel. Nielson v. 76 Idaho 879, Eielson, 279 P.2d 881. See also Krimmel v. p. Ill. N.E.2d § C.J.S. Statutes 903.
Apparently contending the state is the enact- Chapter legislature ment of Laws of 1955 the had per no intent to eliminate the limits of 50 miles nights per hour-days merely delegat- hour- and 60 miles but power ed its to- fix such limits interpret Chapter
Commission. We are unable so expressly The amendment eliminates the limit in per delegate hour. If had intended.to power appears this Commission, State expressly to us it have would done so. legislature by Chapter the enactment of per hour-nights
eliminated the limits 50 of miles per hour-days 60 miles and substituted therefor the reason prudent able and speed This limit. reasonable existing highways limit now streets and expressed except this hour, state is in miles where the statute or the State Commission in the limited provided. herein, zones as construed so has *5 opinion areWe of the that authority attempting Commission exceeded its in establish Highways a maximum limit all on of per hour-days hour-nights. per 60 miles 50 miles and only speed highway The limit on the on which defendant driving was was that which was reasonable existing. Therefore, under the is conditions then defendant guilty unlawfully driving not of of crime automobile his in exc'ess of a maximum hour limit of 60 miles charged. argues The defendant further that if the delegate intended to to the State Commission power state, to make a zone out such the entire of delegation legislative power. would be unconstitutional of necessary holding is Under our not we that consider question. passing “A is this constitutionality court not warranted on the a is
of a statute unless such determination disposition the cause under consideration.” essential to the Gulbrandson, 8 N.W.2d Friese S.D. Reversed. RENTTO, JJ.,
HANSON, J.,P. and concur. SMITH and (dissenting). ROBERTS, J.
Appellant
adjudged guilty
on
a vehicle
was
15, 1956,
an
Trunk
on December
pay
fine
a
sentenced
unlawful rate
and was
Appellant
contends, first, that the State
in his brief
$50.
actually
“that the State
show
appellant
zone in the area where
established
Chap.
compliance
with
Session
arrested
Laws
and
signs showing
beginning
posted
conspicuously
ending”
second,
thereof, and,
statute
if the
authority
on
confers
Highways
“it
on
limits
all State
establish
power
delegation
legislative
void
improper
and
an
unconstitutional”.
person shall
that no
of conduct
standard
basic
greater
“at a
a vehicle
drive
existing
regard
prudent”
is reasonable
has been
1955 act
in the
conditions
Motor Vehicle
of the Uniform
enactment
rule ever since the
1929)
(Chap. 251, Laws
4 of
act
Act in 1929. Section
provided
upon a
person
a vehicle
drive
could
that no
*6
highway
“greater
proper”
at a
is reasonable
regard
traffic, surface,
due
width of
any
existing.
and of
It further
conditions then
provided
subject
prima
to this basic standard was
facie
for the
in
unlawful
driver of a motor vehicle to drive
specified speeds.
532,
Rossman,
excess of
State v.
64 S.D.
prudent”
will sustain an act if the
interpretation.
Transportation Co., 71
Hills
State v. Black
legislative
light
The 1941 statute fixed zoning posting of a of sections hour. The con limitations was these Trunk within compliance the statute. sistent and in with proper fixed limitations to eliminate these deemed it in 1955 prudent” speed. of “reasonable and The basic standard applies “except present other statute under the conduct exception provided those vehicles includes- This wise law”. emergency as am vehicles such as authorized classified emergency responding Anderson calls. to bulances when Recognizing Lanning, 161, 57. 74 S.D. concerning legislate specifically dif impractical to is leg conditions, the traffic localities and variable ferent to vest it advisable deemed islature authority “limited” to establish with synonymous in context “limited” read The word zones. p. The ends of “bounded”. C.J.S. with word by express zone each terms the statute must be indicated by signs showing permissible rates of therein. designed travelling protect public. The statute was When a State other request completely posted of local authorities is zoned and may appears contemplate, as the statute then motorist speeds know what are deemed reasonable and subjecting conditions, under different traffic and thus avoid penal provisions. himself to If Com- authority post mission has not zone except particular manner, in such motorists con- where ditions exist will have no criterion deter- they may operate speeds mine at what their vehicles with- violating penal provisions Experience out of the statute. proven, *8 Mangus, has the court v. as 120 W.Va. 415, S.E.872, observed that often all too are motorists strangely indifferent to the welfare others. The absence signs indicating permissible speeds other than those particular minimize erected because conditions will hamper such indifference and will tend to the enforcement statutory regulations respecting public high- of ways. the use of capable
Where a statute of more one inter- pretation, must be read in a sense which harmonizes subject general purpose object with the matter and given interpretation of the statute. It must be which purpose will best its effect rather than one which will Gulbrandson, v. defeat it. Friese S.D. N.W.2d Busby Shafer, v. 75 S.D. N.W.2d prescribed of the violation standard conduct by 44.0303 as is made a misdemeanor. Section amended Supp. by Chap. Under 44.9929 am. Laws 1953. SDC as appellant driving record, on the facts disclosed rate of excess of 77 at a sixty posted rate of hour was the of the prima place time facie at the lawful alleged violation. Proof of establishment of proceedings of rates of resolution or other official appellant seems to con- signs required. appropriate erected, are tend was not they When give permis- as above indicated to notice are effective speed. principles sible rates of of in In view record and the my applicable, opinion court err law below not in finding guilty an rate of defendant unlawful judgment speed. I affirm the of the trial court. would Respondent Appellant STATE, HOWELL,
(95 36) (File 1959) February 10, Opinion No. 9678. filed