Behrns v. Burke , 89 S.D. 96 ( 1975 )

DUNN, Chief Justice

(dissenting).

It is my opinion that SDCL 32-34-1 violates both the equal protection clause of the Fourteenth Amendment to the United States Constitution and the similar guarantee of Article VI, § 18, of the South Dakota Constitution.

My disagreement with the majority does not extend to the authorities cited. Rather, I believe that they have erred in application of these principles. Unquestionably, a legislative classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 1920, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989. And this court has stated that a statute will not be upheld where “the object sought has no reasonable relation to the means employed to effect the object.” State v. Wood, 1927, 51 S.D. 485, 488, 215 N.W. 487, 488. In Wood we held that restricting the sale of patent and proprietary medicine to pharmacists did not tend to protect the public health since pharmacists were not required to inspect, test, label, or otherwise utilize their professional skills in the sale of these medicines. Even though pharmacists were regulated as a profession and were licensed on the basis of their learning and skill in the compounding and dispensing of medicines, we were not persuaded that the statute accomplished what was claimed for it. In my opinion, the guest statute does much less to accomplish what is claimed for it than the Act under consideration there. Conceivably, restriction of the sale of patent medicines to learned professionals might occasionally inure to the public benefit. Similarly, I can conceive of some rare instance where the guest statute might promote a free ride or prevent ungrateful litigation. But this court’s responsibility to insure equal protection under the law is not satisfied by weak speculation. Rather, a statutory discrimination must rest upon some reasonable ground of difference. In re Watson, 1903, 17 S.D. 486, 97 N.W. 463.

Logic compels me to conclude that the insured driver does not feel the sting of ingratitude when his guest seeks compensation from the former’s insurer. Similarly, the insured driver is not inclined to weigh his protection under the guest statute in deciding whether to offer a free ride. Recent decisions support this analysis of the effect of today’s extensive liability insurance. Thompson v. Hagan, 1974, 96 Idaho 19, 523 P.2d 1365; Johnson v. Hassett, 1974, N.D., 217 N.W.2d 771; Henry v. Bauder, 1974, 213 Kan. 751, 518 P.2d 362; Brown v. Merlo, 1973, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212.

In concluding that the guest statute is unconstitutional, I have not questioned the reasonableness of the legislative objectives themselves nor failed to presume the constitutionality of the statute. When the guest statute was enacted in 1933 ^* the incidence of liability insurance was in no way comparable to its pervasiveness today. But while these legislative objectives may not be questioned, statutory classifications have long been exposed to judicial scrutiny and they must fall where they result in irrational discrimination as of the present day.

* Ch. 147, S.L.1933.