City of Sioux Falls v. Ewoldt, 19732

Decision Date16 January 1997
Docket NumberNo. 19732,19732
PartiesCITY OF SIOUX FALLS, Plaintiff and Appellee, v. Brent William EWOLDT, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Walter T. Doolittle, Assistant City Attorney, Sioux Falls, for Plaintiff and Appellee.

Lois Lofgren, Sioux Falls, for Defendant and Appellant.

GILBERTSON, Justice (on reassignment).

¶1 Brent Ewoldt appeals his speeding conviction. We affirm.

FACTS

¶2 On the morning of September 7, 1995, Joy Tuscherer was traveling in her motor vehicle in the vicinity of the 3100 block of West 5th Street in Sioux Falls, South Dakota (City). Tuscherer dropped off her son at the Hayward School and went on her way to work, traveling east at between ten and fifteen miles per hour. Tuscherer saw a sign indicating a child crossing ahead and approached a crosswalk with a posted speed limit of fifteen miles per hour when children are present. A crossing guard stood on the north side of the crosswalk and was about to step forward. Ewoldt passed Tuscherer's vehicle on the crossing guard's side of the road.

¶3 Tuscherer noted Ewoldt's license plate number and reported the incident to the police. An investigation ensued and, on October 3, 1995, City filed the following complaint against Ewoldt in the Magistrate Division of the Circuit Court for the Second Judicial Circuit:

The undersigned being first duly sworn, on oath complains and charges on information and belief that the Defendant, Brent William Ewoldt, in said City of Sioux Falls, Minnehaha County, State of South Dakota, 6100 West Fifth Street on or about the 7th day of September, 1995, 7:55 a.m. then and there did:

Drive a vehicle on a street at a speed greater than was reasonable and prudent in violation of Section 40-137 of the Revised Ordinances of Sioux Falls, South Dakota,

against the peace and dignity of the City of Sioux Falls, and prays that the Defendant may be arrested and dealt with according to law.

The complaint was signed by an assistant city attorney and notarized by a notary public.

¶4 A court trial on the speeding charge took place on October 23, 1995. Ewoldt made various motions to dismiss the case, including a motion to dismiss for lack of jurisdiction, contending the complaint was defective in failing to set forth Ewoldt's speed and the statutory speed limit. All of the motions were denied. The only witness against Ewoldt was Tuscherer, who testified as set forth in the facts. Ewoldt testified that he was beyond the crosswalk when he passed Tuscherer, that she accelerated as he passed and that he had to speed up to get around her.

¶5 The trial court found Ewoldt guilty and entered a judgment suspending the imposition of Ewoldt's sentence as follows:

[T]he Court ... suspends the Imposition of Sentence for 2 years, on the condition that the defendant pay a fine in the amount of $133.50 plus COSTS of $26.50 by December 18, 1995 and have no like offenses for 2 years.

Ewoldt appealed the judgment to the Circuit Court, which affirmed. Ewoldt now appeals to this Court.

¶6 Must City's complaint conform to the requirements of state law and did it do so?

¶7 Ewoldt was convicted of violating Sioux Falls Municipal Ordinance 40-137:

It shall be unlawful for any person to drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions then existing or at a speed in excess of those fixed by this article.

This ordinance is virtually identical to SDCL 32-25-3:

It is a Class 2 misdemeanor for any person to drive a motor vehicle on a highway located in this state at a speed greater than is reasonable and prudent under the conditions then existing or at speeds in excess of those fixed by this chapter or provided by the transportation commission.

¶8 Ewoldt argues that since a violation of City's ordinance is also a Class 2 misdemeanor under state law, City's complaint had to conform to the requirements of SDCL 32-25-21. SDCL 32-25-21 provides:

In every prosecution for violation of any of §§ 32-25-1 to 32-25-17, inclusive, the complaint, and also the summons or notice to appear, shall specify the speed at which the defendant is alleged to have driven, and also the speed which such section declares shall be lawful at the time and place of such alleged violation.

Ewoldt asserts City's complaint failed to conform to the statute because it did not allege either the speed he was traveling or the lawful speed in the area. Accordingly, he contends the complaint should have been dismissed for lack of jurisdiction.

¶9 City asserts its ordinances control the required contents of a complaint for an ordinance violation and that since the city ordinances do not require allegations of speed in a complaint for violation of Ordinance 40-137, the ordinance should control. Article IX, Section 1 of the South Dakota Constitution, in relevant part, dictates otherwise:

The Legislature shall have plenary powers to organize and classify units of local government, except that any proposed change in county boundaries shall be submitted to the voters of each affected county at an election and be approved by a majority of those voting thereon in each county[.]

See also City of Rapid City v. Rensch, 77 S.D. 242, 90 N.W.2d 380 (1958) (city authorized to regulate parking under powers conferred by Legislature, including those incidental or implied powers necessary to perform the authorized function); City of Sioux Falls v. Peterson, 71 S.D. 446, 25 N.W.2d 556 (1946) (city derived its authority for traffic ordinance from Legislature pursuant to South Dakota Constitution).

¶10 The Legislature, by enacting SDCL 23A-1-1, provides that: "[t]his title shall govern the procedure to be used in the courts of this state in all criminal proceedings and in all proceedings for violations of ordinances and bylaws of units of local government of this state." (emphasis added). In addition, SDCL 23A-45-13 provides that, "[i]f no procedure is specifically prescribed by statute or rule, a court may proceed in any lawful manner not inconsistent with this title or with any other applicable statute." (emphasis added). Taken together, these constitutional and statutory provisions mean that City's speeding complaint had to conform to the requirements of SDCL 23A-2-1 and other applicable statutes, which always prevail over any City ordinances which conflict with state law.

¶11 Ewoldt incorrectly contends that the complaint was required to bear the signature of a police officer, rather than the signature of the assistant city attorney. SDCL 23A-2-1 contains no such requirement. The statute simply provides that, "[a] complaint is a written statement of the essential facts constituting an offense charged. It must be signed under oath before a person authorized to administer oaths in the state of South Dakota." Therefore, in terms of the signature, City's complaint was sufficient to comply with the requirements of SDCL 23A-2-1.

¶12 Ewoldt next contends that the speeding complaint was invalid because it failed to comply with the provision of SDCL 32-25-21 which requires the complaint to "specify the speed at which the defendant is alleged to have driven, and also the speed which such section declares shall be lawful at the time and place of such alleged violation." In accordance with both Ordinance 40-137 and SDCL 32-25-3, the complaint against Ewoldt alleged he drove "at a speed greater than is reasonable and prudent under the conditions then existing." In order to determine whether this statement is sufficient to satisfy the requirements of SDCL 32-25-21, we must interpret that statute and SDCL 32-25-3 together. Statutory interpretation is a question of law, which we review de novo. Moss v. Guttormson, 1996 SD 76, p 10, 551 N.W.2d 14, 17.

¶13 SDCL 32-25-21 mandates the complaint "shall specify the speed at which the defendant is alleged to have driven...." Ewoldt's interpretation would require us to insert the word "numerical" in front of the term "speed" in order to construe this statute. This is not required by the plain terms of the statute. "Ordinarily, we may not, under the guise of judicial construction, add modifying words to the statute or change its terms." State v. Franz, 526 N.W.2d 718, 720 (S.D.1995). "In construing a statute, it is always safer not to add to or subtract from the language of a statute unless imperatively required to make it a rational statute." 2A Sutherland Statutory Construction § 47.38 (5th ed 1992). Such an insertion is not required to make this statute rational.

¶14 In addition, we do not construe SDCL 32-25-21 in isolation.

Intent must be determined from the statute as a whole, as well as enactments relating to the same subject. Where statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them 'harmonious and workable.'

Wiersma v. Maple Leaf Farms, 1996 SD 16, p 3, 543 N.W.2d 787, 789 (internal citations omitted).

¶15 In order to harmoniously construe SDCL 32-25-21 and SDCL 32-25-3, we must also look to SDCL 32-25-3. This statute provides alternative methods for charging a speeding violation. SDCL 32-25-3 states that a speeder can be prosecuted two ways: either for (1) exceeding reasonable and prudent speeds under the first part of the statute OR (2) for exceeding the statutory speed limits contained elsewhere in SDCL ch 32-25 under the second part of the statute. It follows that if the motorist is charged under the second half of the statute, SDCL 32-25-21 would require the applicable numerical speed contained in SDCL ch 32-25 be alleged in the complaint. If the motorist is charged under the first part of SDCL 32-25-3, there is no numerical speed which is incorporated by reference from SDCL ch 32-25. SDCL 32-25-21 requires the complaint...

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