State, Department of Public Safety v. Cronin , 1977 S.D. LEXIS 145 ( 1977 )

DUNN, Chief Justice

(concurring in result).

I concur in the result of the proposed opinion.

I agree that the defendants may appeal the hearing examiner’s findings under SDCL 1-26, and that these cases should be remanded to entertain appeals under that chapter; however, I do not believe this application forecloses the right to appeal under SDCL 32-23-12. Although the legislature in 1975 expanded the right of appeal from those “aggrieved by a final decision in a contested case”, SDCL 1-26-30, to “any party in a contested case”, SDCL 1-26-30.2, and provided that “appeals authorized by § 1-26-30.1 or § 1-26-30.2 shall be taken and conducted pursuant to the provisions of this chapter”, SDCL 1-26-30.3, it did not expressly repeal SDCL 1-26-30. That section provides in part:

“This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law.”

While SDCL 1-26-30.2 and the first sentence of SDCL 1-26-30 may be so manifestly and totally repugnant as to necessitate an implied repeal, I do not feel the sentence quoted above need fall. I would view SDCL 1-26-30.2 and SDCL 32-23-12 as alternative methods of review.

I am authorized to state that Justices ZASTROW and PORTER join in this concurrence.