Allegheny Corp. v. Richardson, Inc.

HEEGE, Circuit Judge.

Allegheny Corporation, Inc., (Allegheny) seeks specific performance of several alleged contracts by which Allegheny claims to have purchased two South Dakota ranches. The circuit court held that SDCL 47-9A-1 barred Allegheny from owning South Dakota farmland and granted summary judgment. We affirm.

Allegheny was incorporated in and has its principal office in the State of Kansas. It is a “foreign corporation” under the South Dakota Business Corporation Act (SDCL 47-2-1) and the Family Farm Act (SDCL 47-9A).

SDCL 47-9A-1 provides:

The Legislature of the state of South Dakota recognizes the importance of the family farm to the economic and moral stability of the state, and the Legislature recognizes that the existence of the family farm is threatened by conglomerates in farming. Therefore, it is hereby declared to be the public policy of this state, and shall be the provision of this chapter, that, notwithstanding the provisions of § 47-2-3, no foreign corporation, and no domestic corporation except as provided herein, shall be formed or licensed under the South Dakota Business Corporation Act for the purpose of owning, leasing, holding or otherwise controlling agricultural land to be used in the business of agriculture, [emphasis supplied].

SDCL 47-9A-1 is plain and unambiguous. It prohibits “foreign corporations” from being licensed to own South Dakota agricultural land to be used in the farming business. The issuance, by the Secretary of State of the State of South Dakota, of a “Certificate of Authority” purporting to permit Allegheny to purchase South Dakota farmland was ineffectual for that purpose.

This court has previously said that it “will not enlarge a statute beyond its face where the statutory terms are clear.” Simpson v. Tobin, 367 N.W.2d 757, 763 (S.D.1985). “The meaning must be read from the language chosen by the legislature,” Petition of Famous Brands, Inc. 347 N.W.2d 882, 886 (S.D.1984), “and said intention is to be ascertained by the court primarily from the language expressed in the statute.” State Theatre Co. v. Smith, 276 N.W.2d 259, 263 (S.D.1979).

This court is without power to amend or revise plain and unambiguous legislative acts. To create an ambiguity, the comma following “foreign corporation” in SDCL 47-9A-1 would have to be removed. The wisdom of the restriction on foreign corporations is a legislative not a judicial responsibility. Simkins v. South Dakota High School Activities Association, 434 N.W.2d 367 (S.D.1989).

The attorney general’s office, on numerous occasions after the enactment of SDCL 47-9A-1 in 1974, interpreted the statute as prohibiting the licensing of foreign corporations to own South Dakota farmlands. In 1980, however, the then attorney general, revised the previous position of the attorney general’s office and advised the Secretary of State that SDCL 47-9A-1 “does not absolutely prevent a foreign corporation from being authorized to do business in South Dakota if the corporation owns, leases, holds or otherwise controls agricultural land.” Report of Attorney General, 1979-1980 Official Opinion No. 80-31.

We are urged to consider the attorney general’s opinion in interpreting SDCL 47-9A-1 because of the apparent acquiescence in that opinion by the Secretary of State and the legislature for the past ten years.

In Livestock State Bank v. State Banking Commission, 80 S.D. 491, 496, 127 N.W.2d 139, 141-42 (1964) this court said:

Respondent argues that the continued existence of Rule 17 since 1945, its approval as a valid rule in an Attorney General’s opinion of August 16, 1950, and acquiescence therein by the banking industry and the legislature, should be considered in the upholding of the validity of the rule. Respondent states that in ascertaining legislative intent, administrative interpretation of a statute may be considered, especially where it is of long standing, [citations omitted]. This rule has no application except when the statute in question is ambiguous. Burke v. Burkhart (1920), 42 S.D. 604, 176 N.W. 743; State ex rel. Widdoss v. Esmay (1948) 72 S.D. 270, 33 N.W.2d 280. [emphasis supplied].

SDCL 47-9A-1 is not ambiguous. Allegheny had no authority to purchase the two ranches in question. Therefore, it could not successfully maintain an action for specific performance of the alleged contracts to purchase the land.

It is unnecessary to consider other errors alleged and we do not express any opinion on other issues raised in this appeal.

The circuit court judgment is affirmed.

MORGAN, HENDERSON and SABERS, JJ., concur. WUEST, J., concurs in result. HEEGE, Circuit Judge, for MILLER, C.J., disqualified.