author: KONENKAMP, Justice.

text:
    2002 SD 160
    STATE of South Dakota, Plaintiff and Appellee, v. Anthony K. KRAHWINKEL, Defendant and Appellant.
    No. 22335.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 18, 2002.
    Decided Dec. 23, 2002.

      Mark Barnett, Attorney General, Jason A. Glodt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Ronald G. Schmidt, Rapid City, South Dakota, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Anthony Krahwinkel was convicted of violating South Dakota’s overweight motor vehicle statutes and was assessed double civil penalties. He appeals on several issues, challenging the constitutionality and applicability of the provisions of SDCL ch 32-22. He also appeals his conviction for violating SDCL 32-22-57.1, by having a lift axle pressure control device located inside the cab of his vehicle. We affirm.

Background

[¶2.] On February 12, 2000, Anthony Krahwinkel was driving a 1994 Mack truck-tractor registered in Montana in combination with a Sieb trailer registered in Wyoming. The trailer was loaded with a Kamatsk excavator. Soon after pulling off U.S. 14A onto Interstate 90, Krahwink-el was stopped by Motor Carrier Enforcement Officer Larry Bryant near milepost 31 in Meade County. Officer Bryant directed Krahwinkel to proceed to the Stur-gis Department of Transportation to weigh the tractor-trailer combination, using portable Haenni wheel load scales.

[¶ 3.] Before the weighing, the scales had been properly tested and certified. Krahwinkel’s tractor-trailer combination had eight axles. The individual axle weights were as follows:

Axle 1 10,900 pounds
Axle 2 7,900 pounds
Axle 3 33,500 pounds
Axle 4 39,000 pounds
Axle 5 18,700 pounds
Axle 6 19,000 pounds
Axle 7 18,700 pounds
Axle 8 18,700 pounds

The gross weight of Krahwinkel’s tractor-trailer was 166,400 pounds.

[¶ 4.] To determine the legality of Krahwinkel’s tractor-trailer gross weight, Officer Bryant applied the overweight formula, commonly known as the “bridge formula,” codified in SDCL 32-22-16.1. The bridge formula is found in Title 23 of the United States Code § 127, which sets the allowable vehicle weights on the Interstate highways. South Dakota’s Interstate highway funds are contingent upon the enforcement of the weight limits set forth in the United States Code. 23 USC § 127. The bridge formula was designed to protect bridges from catastrophic overloads by restricting the weight of each of a vehicle’s axle groupings and by limiting vehicle gross weight. The Motor Carrier handbook summarizes SDCL 32-22-16.1 and includes a reference table, which permits operators to calculate the maximum gross weight allowable, without having to actually solve the formula codified in the statute.

[¶ 5.] The bridge formula restricts the gross weight of a vehicle traveling on the Interstate Highway System to 80,000 pounds. This gross weight limitation is codified in both SDCL 32-22-16(3) and 23 USC § 127. Although South Dakota claims “grandfather” rights and may supersede the 80,000 pound limitation, it cannot permit vehicles to exceed the maximum gross weight allowed under the bridge formula.

[¶ 6.] To compute the maximum allowable gross weight under the bridge formula, Officer Bryant measured the distance between Axles 1 and 8 which totaled 87 feet and counted the number of axles (eight) on Krahwinkel’s tractor-trailer. Under the bridge formula, the maximum gross weight for a vehicle with eight axles with 87 feet between the foremost axle and the rearmost axle is 115,500 pounds. Since the actual weight of Krahwinkel’s tractor-trailer was 166,400 pounds, the vehicle was 50,900 pounds over the legal gross weight limit allowed by South Dakota law. Officer Bryant cited Krahwinkel for a gross weight violation of 50,900 pounds under SDCL 32-22-16.

[¶ 7.] Although Krahwinkel did not have the proper overweight permit which would have allowed him to carry the maximum allowable load (115,500 pounds) under the bridge formula, Officer Bryant chose not to use 80,000 pounds as a base weight. Instead, he used the bridge formula to determine the maximum allowable weight that Krahwinkel’s vehicle could have been permitted to carry (115,500 pounds). Officer Bryant could have ignored the bridge formula and just issued a gross overweight violation using the base weight of 80,000 pounds. Under those circumstances, Krahwinkel could have been cited for having 86,400 pounds over the weight limit rather than 50,900 pounds.

[¶ 8.] Under SDCL 32-22-55, Krah-winkel was penalized 37.5 cents per pound for 50,900 pounds for a total of $19,087. In addition, the penalty was doubled in accord with SDCL 32-22-56. In sum, Krahwinkel was penalized $38,175 in addition to an initial fine of $133.

[¶ 9.] In addition to the SDCL 32-22-16.1 violation, Krahwinkel was cited under SDCL 32-22-57.1 for having a lift axle pressure control device located inside the cab of his vehicle. Krahwinkel testified that the location of the pressure control device for the variable load lift axle in the tractor-cab is legal in Montana, where the truck is licensed and registered. He further stated that the pressure control setting for the variable load lift axle was approximately thirty pounds. He explained, however, that with such high pressure on the lift axle, the truck frame could possibly break the motor mount. Therefore, it was necessary to reduce the pressure or raise the lift axle before making a turn. Accordingly, Krahwinkel reduced the pressure on the lift axle to approximately five pounds before he turned into the Sturgis Department of Transportation yard. There, Officer Bryant ordered Krahwinkel not to make any changes. Thus, the lift axle pressure was left at about five pounds.

[¶ 10.] The purpose of the pressurized lift axle is to spread the weight of the load over the additional axles and pneumatic tires. At approximately thirty pounds of pressure, the weight on Axles 2, 3, and 4 of Krahwinkel’s tractor-trailer combination should be approximately the same. Axle 2, the variable lift axle, only weighed 7,900 pounds. However, the other two axles in the group, Axles 3 and 4, weighed 33,500 pounds and 39,000 pounds, respectively.

[¶ 11.] The circuit court found Krah-winkel guilty of violating SDCL 32-22-16 and 32-22-16.1, and in accordance with SDCL 32-22-55 and -56 imposed a penalty of $38,175 plus a fine of $100 and costs of $33 for the gross overweight violation on the whole vehicle based on the cumulative weights of Axles 1 through 8. Further, the circuit court found Krahwinkel guilty of violating SDCL 32-22-57.1, concerning the lift axle control device and imposed a fine of $100 and costs of $33.

[¶ 12.] Krahwinkel appeals these penalties, fines, and costs. He raises the following issues on appeal: (1) “Whether the State erroneously charged Krahwinkel for a ‘gross weight’ violation of § 32-22-16(3) based on the whole vehicle (i.e., the cumulative weight of all eight axles on the vehicle) as opposed to a ‘group’ of axles constituting an overweight part of the whole vehicle.” (2) “Whether the overweight provisions of SDCL ch 32-22 are facially unconstitutional because of unequal penalties for identical violations contrary to Art. VI, § 18 of the South Dakota Constitution, and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.” (3) “Whether due to changed circumstances since this Court’s divided opinion in State v. Feiok, 364 N.W.2d 536 (S.D.1985), §§ 32-22-55 and - 56 must be deemed so punitive either in purpose, or in effect as to negate the Legislature’s intention to impose purely a civil penalty in light of a $38,175 civil fine and other factors not considered by this Court in its previous decision.” (4) “A fine/penalty of $38,175 for a single Class 2 misdemeanor violation is so grossly excessive, and/or manifestly disproportionate to the crime as violative of the due process prohibition against the taking of property under South Dakota Constitution Art. VI, § 2, and the Fourteenth Amendment to the Constitution of the United States; and/or additionally, contrary to the prohibition against excessive fines in South Dakota Constitution Art. VI, § 23 and the Eighth Amendment of the Constitution of the United States.” (5) “Chapter 32-22 overweight provisions are facially unconstitutional as violative of the void-for-vagueness and/or overbreadth doctrines of due process embodied in South Dakota Constitution Art. VI, § 2 and the Fourteenth Amendment to the Constitution of the United States.” (6) “Whether the double penalty provisions of § 32-22-56 are applicable.” (7) “Whether the Circuit Court erred in finding Krahwinkel guilty of violating § 32-22-57.1 for having the lift axle control in the cab of the truck as a matter of statutory construction since the statute expressly applies only to vehicles ‘registered in South Dakota’ in light of Krah-winkel’s vehicle being registered in Montana.”

Standard of Review

[¶ 13.] We examine statutory construction and constitutional challenges de novo. State v. Barton, 2001 SD 52, ¶ 8, 625 N.W.2d 275, 278. The primary purpose of statutory construction is to ascertain the intent of the law. Id. Intent is ordinarily found by examining the express language of the statute. Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 6, 620 N.W.2d 198, 201. We therefore defer to the text where possible. Id. We read statutes as a whole along with the enactments relating to the same subject. Kayser v. South Dakota State Elec. Comm’n, 512 N.W.2d 746, 747 (S.D.1994) (citations omitted). We assume that the Legislature intended that no part of its statutory scheme be rendered mere surplusage. Nat’l Farmers Union Prop. and Cas. Co. v. Universal Underwriters Ins. Co., 534 N.W.2d 63, 65 (S.D.1995) (citing Revier v. School Bd. of Sioux Falls, 300 N.W.2d 55, 57 (S.D.1980)); 2A Norman J. Singer, Sutherland Statutory Construction § 46.07, 205 (6th ed 2000). Likewise, when an asserted error implicates an infringement of a constitutional right, we employ a de novo standard of review. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43.

Analysis and Decision

1. Gross Weight Violation

[¶ 14.] Krahwinkel argues that he was “improperly charged” for a gross weight violation under SDCL 32-22-16. He maintains that the term “group” applies only to inner axle group weight violations and not to a group of total axles. We find his argument unpersuasive. Krahwinkel’s vehicle had a total gross weight of 166,400 pounds. Because he was traveling on the Interstate, SDCL 32-22-16 restricted his weight to 80,000 pounds. However, Officer Bryant opted to use the “bridge” formula in SDCL 82-22-16.1 to calculate Krahwinkel’s maximum allowable weight.

[¶ 15.] SDCL 32-22-16(3) provides that no motor vehicle may have a weight “in excess of the maximum weight on Uuo or more consecutive axles as determined by the formula detailed in § 32-22-16.1.” (Emphasis added.) The bridge formula does not limit “two or more consecutive axles” to groups of inner-axles within the two outermost axles on a vehicle.

[¶ 16.] Several jurisdictions have had an opportunity to address this question. Under a similar bridge formula statute, the Illinois Supreme Court determined what constituted a weight violation under the terms “group” and “two or more consecutive axles.” People v. Conlan, 189 Ill.2d 286, 244 Ill.Dec. 350, 725 N.E.2d 1237, 1242 (2000) (emphasis added). The Conlan court ruled that if the extreme axles on a vehicle, front and rear, are being considered, and the total weight exceeds allowable limits, a gross weight violation has occurred in the traditional sense. Id. at 1242. If, on the other hand, excessive weight exists over consecutive inner axles, then what is apparently referred to as an “inner bridge” violation has occurred. Id. Here, Krahwinkel had a traditional gross weight violation.

[¶ 17.] SDCL 32-22-16.1 provides that “[f]or the purposes of § 32-22-16 the maximum gross weight on a group of two or more consecutive axles ” shall be determined by a formula, which many courts refer to as the “bridge” formula. (Emphasis added.) It is apparent that the Legislature intended the term “group” to encompass a variety of axle configurations that can exist on a vehicle. This can be deduced by the Legislature’s inclusion of the term “gross weight” in SDCL 32-22-16.1. Gross weight means the total weight of the vehicle. State v. Young, 2001 SD 76, ¶ 6, 630 N.W.2d 85, 87-88. In calculating the total weight of a vehicle, all the axles would be included. Therefore, by implication, we conclude that a “group” of axles can encompass all the axles on a vehicle to calculate a gross weight violation or a “group” can encompass any “two or more consecutive axles,” which constitute a weight violation. See Commonwealth v. Byers, 35 PaD & C3d 470, 474, n1, 1984 WL 2506 (Pa.Com.Pl.1984) (“While the statute uses the language ‘two or more consecutive axles’ it is apparent that this language is referring to all the axles. At least in this case all axles were used in the calculation.”)- We find no error here.

2. Constitutionality of SDCL ch 32-22

[¶ 18.] We next consider Krah-winkel’s contention that the overweight statutes violate his right to equal protection of the laws under our state and federal constitutions. At the outset, we note that “[a]ny legislative act is accorded a presumption in favor of constitutionality and that presumption is not overcome until the act is clearly and unmistakably shown beyond a reasonable doubt to violate fundamental constitutional principles.” Americana Healthcare Center v. Randall, 513 N.W.2d 566, 572 (S.D.1994). Moreover, classification is primarily for the Legislature and we will not interfere “unless the classification is clearly arbitrary and unreasonable.” Berens v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 80 S.D. 168, 120 N.W.2d 565, 570-71 (1963).

[¶ 19.] The equal protection clauses embodied in the Fourteenth Amendment to the United States Constitution and in Article VI, § 18 of the South Dakota Constitution guarantee equal protection of the laws to all persons. The statutes in SDCL ch 32-22 do not encompass a fundamental right, a suspect classification, or an intermediate scrutiny classification; thus, the rational basis test is applicable. In City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975), this Court set forth a two-prong test to determine, under rational basis analysis, whether a statute violates the constitutional right to equal protection under the laws. The first part of the test is whether the statute sets up arbitrary classifications among various persons subject to it. Id. at 333. The second part of the test is whether there is a rational relationship between the classification and some legitimate legislative purpose. Id.

[¶ 20.] Under the first prong, we look to see if the overweight statutes of SDCL ch 32-22 apply equally to all people. Lyons v. Lederle Laboratories, A Div. of American Cyanamid Co., 440 N.W.2d 769, 771 (S.D.1989) (citing Janish v. Murtha, 285 N.W.2d 708, 709 (S.D.1979)). Krah-winkel asserts that the classifications are wholly arbitrary and not related to protecting roads from damage because the Legislature makes a distinction between the types of loads, the nature of certain vehicles, and the vehicles that receive permits. Essentially, he argues that weight is weight and that identical amounts of weight damage the road equally, regardless if that weight is exerted by a construction vehicle, an agricultural vehicle, an emergency vehicle, or a sludge vehicle.

[¶ 21.] Equal protection of law requires that the rights of every person be governed by the same rule of law, under similar circumstances. Eischen, 363 N.W.2d at 201; Meidinger, 89 S.D. 412, 233 N.W.2d at 333-34; State v. King, 82 S.D. 514, 149 N.W.2d 509, 510 (1967) (emphasis added). Equal protection does not require that all persons be treated identically, but it does require that distinctions have some relevance to the purpose for which classifications are made. Meidinger, 89 S.D. 412, 233 N.W.2d at 334. Krahwinkel incorrectly premises his argument on the type of vehicle being operated, on the type of load being hauled, and on whether the vehicle operator receives a permit. Rather, the proper focus is on the identity of the drivers and their similar circumstances. SDCL ch 32-22 applies equally to all vehicle operators in similar circumstances. Any other persons who would have been driving Krahwinkel’s vehicle, regardless of their occupations, would have been subject to the same fines and penalties as Krahwinkel.

[¶ 22.] The classifications in SDCL ch 32-22 are not based on who operates the vehicle. Instead, the classifications in SDCL ch 32-22 are based on loads hauled: agricultural commodities and livestock, farm implements, logs, and solid waste. Further, classifications are also made for vehicle type: farm machinery, anhydrous ammonia tank trailers, fire vehicles, municipal sludge vehicles, tow trucks, and wreckers. In addition, SDCL ch 32-22 contains classifications for larger vehicles, which serve communities without a railroad.

[¶ 23.] With regard to Krahwinkel’s contention that the classification of a permit versus a non-permit vehicle is arbitrary and capricious, we think Krahwinkel has failed to show any arbitrary classification. The permitting process set forth in SDCL ch 32-22 applies equally to all classes similarly situated under the law-operators with permits are treated the same and operators without permits are treated the same. Eischen, 363 N.W.2d at 201; Meidinger, 89 S.D. 412, 233 N.W.2d at 333-34; King, 82 S.D. 514, 149 N.W.2d at 510. Therefore, the first prong of the Meidinger test has not been satisfied. Moreover, Krahwinkel failed to provide authority for his argument that SDCL ch 32-22 is unconstitutionally arbitrary and capricious or violative of equal protection of the law as applied to permit versus non-permit vehicles. After reviewing the statutory scheme of SDCL ch 32-22, we conclude that the overweight statutes do not set up arbitrary classifications among persons similarly situated.

[¶ 24.] Having determined that no arbitrary classification exists, we nonetheless move to the second prong to determine whether there is a rational relationship between the classification and some legitimate legislative purpose. Meidinger, 89 S.D. 412, 233 N.W.2d at 333. The exceptions under SDCL ch 32-22 serve a legitimate purpose. Agriculture is a substantial sector of commerce in South Dakota. On several occasions, this Court has recognized the importance of agriculture to the general welfare. Associated General Contractors of South Dakota, Inc. v. Schreiner, 492 N.W.2d 916, 924 (S.D.1992); Wheelon v. South Dakota Land Settlement Board, 43 S.D. 551, 181 N.W. 359, 361 (1921). The agricultural exceptions provide farmers with minimal five and ten percent weight tolerances to reduce the burden on farmers and to facilitate agricultural activity. Some of the exceptions allow a weight tolerance for agricultural activities, such as hauling commodities from a combine to a point of unloading, hauling farm storage or livestock, and moving haystacks. Most of the agricultural commodities, whether grain, livestock, or hay, have variable weights and the loads are prone to shift, making it difficult for farmers to know the exact weight on each axle. On the other hand, construction equipment has a fixed weight and remains stationary during transport allowing for a more accurate weight estimation.

[¶ 25.] We note that the Legislature has imposed several other restrictions on agricultural vehicles designed to minimize damage to highways. Among these limitations are distance and speed restrictions, travel limited to certain roads, season, and types of tires, with lighting, flagging, permitting, and most notably, weight and size restrictions. Most of these restrictions are not applicable to other motor carriers. Furthermore, there is nothing in the statutory scheme that shields agricultural carriers from overweight violations.

[¶ 26.] Serving a separate legitimate purpose, tow trucks and wreckers are allowed weight tolerances because they are used for emergencies, implicating public safety. Similarly, whether a vehicle receives a permit is rationally related to public safety and to the legitimate legislative purpose of protecting public roads from damage caused by overweight vehicles. Meidinger, 89 S.D. 412, 233 N.W.2d at 333-34. Specifically, there is more of a difference between operators who purchase a proper overweight permit and those who do not than just the purchase price of the permit. First, an operator must obtain authorization from the Division of Highway Patrol to obtain a permit to move an overweight vehicle. Second, the permit obtained by an operator is restricted to a single trip. SDCL 32-22-38. Third, the Highway Patrol designates the route that the operator must take for the single trip. Moreover, issuance of a permit is within the discretion of the Highway Patrol. For these reasons, we conclude that SDCL ch 32-22, as it relates to permit and non-permit vehicles, is not unconstitutionally arbitrary and capricious and that it does not violate the equal protection guarantees.

[¶ 27.] We do not find the limited weight tolerance exemptions for certain industries which are vital to the economy and safety of the state to be arbitrary or in violation of equal protection laws. See Dep’t of Transp. v. Georgia Mining Association, 252 Ga. 128, 311 S.E.2d 443, 446 (1984). These considerations constitute a legitimate legislative purpose, and we conclude that there is a rational relationship between this purpose and the classifications based upon industry and the nature and circumstances of the load.

[¶ 28.] In so holding, we are not alone. Many courts have held that overweight statutes are not facially discriminatory and do not violate equal protection guarantees. Id.; State ex rel. Hjelle v. A Motor Vehicle, etc., 299 N.W.2d 557 (N.D.1980); Dep’t of Transp. v. Del-Cook Timber Co., Inc., 248 Ga. 734, 285 S.E.2d 913, 919 (1982) (“in the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality’ ”). We find no error here.

3. Excessively Punitive Civil Penalty

[¶ 29.] First, Krahwinkel maintains that the excessive fines for overweight vehicles are not civil in nature and requests that this Court reconsider its holding in Feiok, 364 N.W.2d 536. Recently, we reviewed our decision in Feiok regarding whether overweight truck fines are civil in nature. Barton, 2001 SD 52, 625 N.W.2d 275. In Feiok, after considering the seven factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), we held that the overweight fines were not so punitive as to negate the Legislature’s intention to impose a civil penalty. Barton, 2001 SD 52 at ¶ 33, 625 N.W.2d at 282-83. Although it appears that we reaffirmed our holding of Feiok in Barton, we will nonetheless analyze whether the penalty for an overweight vehicle is civil or criminal in nature.

[¶ 30.] In Feiok, we outlined the analysis for determining whether a penalty is civil or criminal in nature. State v. Barber, 427 N.W.2d 375, 376 (S.D.1988). First, it must be determined whether the Legislature indicated an express or implied preference for one label or the other in establishing the penalizing mechanism. Feiok, 364 N.W.2d at 538. If this review indicates that the Legislature intended to establish a civil penalty, the second step is to determine whether the statutory scheme is so punitive either in purpose or in effect as to negate that intention and turn the civil penalty into a criminal penalty. Id. at 538-39.

[¶ 31.] Applying the first step of the analysis, we are convinced that the Legislature intended to establish a civil penalty in SDCL 32-22-55, in addition to the criminal penalty for overweight vehicles. In Feiok, we reached this conclusion for two reasons. First, well after the criminal penalty for overweight trucks was enacted in 1929, the predecessor statute to SDCL 32-22-55 was enacted and established a civil penalty for overweight vehicles in 1951. Id. at 539. Second, if the Legislature had intended that the sanctions provided by SDCL 32-22-55 be penal in nature, it would have reclassified the violation of SDCL 32-22-16 from a Class 2 misdemeanor to a Class 1 misdemeanor or a felony. Id.

[¶ 32.] The next step in our analysis is to determine whether, despite the Legislature’s intent to establish a civil penalty for overweight vehicles, the statutory scheme is so punitive in purpose or effect as to negate this intention. Id. at 540. When determining whether a penalty is punitive in nature, the seven factors to consider are:

(1) Whether the sanction involves an affirmative disability or restraint, (2) whether it has historically been regarded as a punishment, (3) whether it comes into play only on a finding of scienter, (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence, (5) whether the behavior to which it applies is already a crime, (6) whether an alternative purpose to which it may rationally be connected is assignable for it, and (7) whether it appears excessive in relation to the alternative purpose assigned.

Barton, 2001 SD 52 at ¶ 33, n3, 625 N.W.2d at 282-83 (citing Feiok, 364 N.W.2d at 540 (quoting Kennedy, 372 U.S. at 168, 83 S.Ct. at 567-68, 9 L.Ed.2d at 661)). See State v. Goffe, 41 Conn.App. 454, 676 A.2d 1377 (1996) for an analysis of each of the above seven factors as applied to an overweight vehicle statute.

[¶ 33.] The Feiok court concluded that only the fifth and seventh factors were relevant. Feiok, 364 N.W.2d at 540. With respect to the fifth factor, whether the behavior to which the sanction imposed by SDCL 32-22-55 is already a crime, the Court noted that the Legislature may provide that one same act may result in both a civil and a criminal sanction. Id. (citing United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742, 749 (1980)). Again, the substantial length of time (22 years) between the enactment of the criminal penalty and the enactment of the subsequent civil penalty (SDCL 32-22-55) repudiates the notion that the penalty in SDCL 32-22-55 is criminal in nature. Feiok, 364 N.W.2d at 540. Likewise, with respect to the seventh factor, whether the penalty is excessive in relation to the purpose assigned to it, the Feiok court found that the penalties authorized by SDCL 32-22-55, although certainly “not insubstantial,” are not so clearly excessive as to bear no relationship to the purpose for which they are imposed. Id.

[¶ 34.] We find the reasoning in Feiok persuasive. We reaffirm its holding that the penalties of SDCL 32-22-55 are civil in nature. Although we recognize that the civil penalties are “not insubstantial,” in most instances the Legislature is in a better position to discern the appropriate gradations for civil penalties.

■ [¶ 35.] Second, Krahwinkel submits that it would be unreasonable to construe SDCL ch 32-22 to allow a civil penalty for an overweight vehicle, without proof of any actual damage, potentially leaving him subject to a later civil action for actual damages. Again, we have previously addressed this issue in Feiok. There, we held that the “imposition of a penalty based upon the amount by which a vehicle is overweight is a reasonable way for the state to police the [motor vehicle] weight restrictions.” 364 N.W.2d at 540 (citing Hjelle, 299 N.W.2d 557). Further, this Court held in Feiok, that to accept a defendant’s contention of requiring the state to demonstrate actual damage to a highway caused by an overweight vehicle before stopping it “would for all practical purposes render any statute imposing a civil cost penalty upon overweight vehicles unenforceable.” Feiok, 364 N.W.2d at 540.

[¶ 36.] Other jurisdictions have also addressed this issue. The Supreme Court of North Dakota held that the operator of an overweight truck did not receive an unduly harsh fine when he was cited for driving one mile on a road under construction and no actual damage to the road was found. Hjelle, 299 N.W.2d at 563. Moreover, the North Dakota court ruled that the overweight penalty was for “extraordinary use of the highway, not for actual damage, and there is no burden on the state to prove actual damage.” Id. Ultimately, the Hjelle court found it reasonable to assess an overweight civil penalty on a pro rata basis. Id.

[¶ 37.] We conclude that actual damage is not a condition precedent to the imposition of a civil penalty. In Feiok, we also held that the Class 2 misdemeanor penalty of SDCL 32-22-16 coupled with the mandatory additional penalty of SDCL 32-22-55 does not constitute double jeopardy. 364 N.W.2d at 540. Accordingly, we hold that Krahwinkel’s criminal fine and civil penalties do not violate the constitutional provision against double jeopardy.

4. Grossly Excessive Penalty

[¶ 38.] The Eighth Amendment provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” This guarantee protects against fines that are grossly disproportionate to the offense. Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). The constitutional inquiry regarding excessive fines is proportionality: the amount of the fine must bear some relationship to the gravity of the offense that it is designed to punish. Id. at 622-23, 113 S.Ct. at 2812; U.S. v. Ursery, 518 U.S. 267, 283, 116 S.Ct. 2135, 2145, 135 L.Ed.2d 549 (1996). Furthermore, the Eighth Amendment proscription against excessive fines applies to fines imposed by the government in civil actions. Austin, 509 U.S. at 610, 113 S.Ct. at 2806. The double civil penalty for an overweight violation imposed on Krahwinkel is not disproportionate when we consider the amount of money the State expends maintaining its highway system and protecting the safety of the public using those highways.

[¶ 39.] Jurisdictions addressing similar issues have held that the purposes of the overweight provisions are to protect the roads from damage and to insure the safety of the travelling public. Goffe, 676 A.2d at 1385; Commomoealth v. Smith, 409 Pa. 521, 187 A.2d 267, 270 (1963). Because overweight sanctions have the effect of deterring overweight violations, courts have found that strict civil sanctions are not excessive. Id.; Goffe, 676 A.2d at 1385. The reasons for so concluding are several: first, the courts considered the amount of money expended by the State to enforce these statutes. Id.; Smith, 187 A.2d at 270. Second, these courts reasoned that operators of overweight vehicles are chargeable with the knowledge of the graduated fine structure. Id. (the Legislature’s decision to graduate and increase the amount of the fines “was not irrational or unreasonable, but on the contrary was quite sensible”); Goffe, 676 A.2d at 1385. Thus, keeping in mind the object to be accomplished and the importance of the public interest, these courts found that the overweight sanctions were not excessive. Id.; Smith, 187 A.2d at 270.

[¶ 40.] In Feiok, we considered whether the fines imposed for violations of SDCL ch 32-22 were unconstitutional as “excessive fines” and concluded that although the fines were certainly “not insubstantial,” they were not so clearly excessive as to bear no relationship to the purpose for which they are imposed. 364 N.W.2d 536. Similarly, in Barton, it was argued that the increase in fines since the time of Feiok, should cause this Court to reconsider its previous ruling. Barton, 2001 SD 52, ¶ 33, 625 N.W.2d at 282-83. We stood by our Feiok ruling in Barton, affirming the defendant’s $11,425 civil penalty for an overweight violation. Id. We reaffirm our holding in Feiok today.

[¶ 41.] Next, Krahwinkel argues that the penalties imposed by SDCL 32-22-55 and 32-22-56 constitute a “taking” under Art. VI, § 2 of the South Dakota Constitution and the Fourteenth Amendment to the United States Constitution. In Cody v. Leapley, 476 N.W.2d 257, 260 (S.D.1991), we said that “where the [Legislature, in the implementation of its constitutional powers, provides for penalties, such as forfeitures, such action is not a taking of private property in a constitutional sense.” The civil overweight penalty imposed on Krahwinkel, although not a forfeiture, is nonetheless a penalty imposed by the Legislature and is, therefore, not a taking of private property.

[¶ 42.] Finally, Krahwinkel contends that his rights to due process have been violated. Here the government is not depriving anyone of a vested liberty or property right without due process of law. Krahwinkel is entitled to argue the facts and dispute them before the court, as he has done. We conclude that he has been given all the process that is due to him in accord with the procedural safeguards afforded to him under SDCL 32-22-16. See Feiok, 364 N.W.2d at 541.

5. Vagueness and Overbreadth

[¶ 43.] Krahwinkel argues that the provisions of SDCL ch 32-22 are unconstitutionally vague and violate due process. A statute challenged as unconstitutional enjoys a presumption of constitutionality. State v. Hoeft, 1999 SD 24, ¶ 15, 594 N.W.2d 323, 326; State v. Shult, 380 N.W.2d 352, 356 (S.D.1986). If we can, we must reasonably construe a statute as constitutional and valid. State v. Morrison, 341 N.W.2d 635, 637 (S.D.1983). Legislative enactments are sustained “where the general intent of the Legislature is capable of being understood. The fact that the language used is capable of more than one construction is not fatal, nor does the necessity of interpretation render an enactment void.” Romey v. Landers, 392 N.W.2d 415, 419 (S.D.1986) (citing State v. Spink Hutterian Brethren, 77 S.D. 215, 239, 90 N.W.2d 365, 378 (1958)). “An act, although somewhat vague and uncertain, or not as clear as it might be, may nevertheless be valid, unless it is so imperfect as to render it impossible to execute it or to ascertain the legislative intent.” Berdahl v. Gillis, 81 S.D. 436, 443-44, 136 N.W.2d 633, 637 (1965). Furthermore, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision. State v. Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d 173, 175 (citations and quotations omitted).

[¶ 44.] The standard for determining whether a statute is unconstitutionally vague was reiterated in Lodemieier v. Class, 1996 SD 134, ¶ 18, 555 N.W.2d 618, 625:

A crime must be statutorily defined with definiteness and certainty. A statute which either forbids or requires the doing of an act in terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. A criminal statute must give a person of ordinary intelligence fair notice [of what] conduct is forbidden.

Id. (citations and quotations omitted).

[¶ 45.] Our review of the provisions of SDCL ch 32-22 do not convince us that Krahwinkel has overcome his burden to show evident unconstitutional vagueness. A plain reading of SDCL 32-22-16 reveals that:

No motor vehicle ... operating on a public highway may have a weight:
(3) In excess of the maximum weight on two or more consecutive axles as determined by the formula detailed in SDCL § 32-22-16.1....

Krahwinkel was cited for violating SDCL 32-22-16. The application of SDCL 32-22-16 to the facts is not difficult. The statute limits the weight of a vehicle traveling on the Interstate to 80,000 pounds, or if the operator has a single trip permit as Officer Bryant determined here, then Krahwinkel’s maximum weight was calculated at a higher allowable weight within the confines of the bridge formula. To determine the maximum allowable gross weight that can be carried on a group of two or more consecutive axles, Officer Bryant applied the bridge formula under SDCL 32-22-16.1 (W = 500 [LN/(N-1) + 12N + 36]). First, he measured the distance between the outermost axles on Krahwinkel’s vehicle (87 feet) and counted the total number of axles within the measured group (8 axles). Next, Officer Bryant inserted the length (87 feet = “L”) and the number of axles (8 = “N”) into the bridge formula to determine Krah-winkel’s maximum allowable gross weight of 115,500 pounds. Because Krahwinkel’s gross weight on Axles 1-8 was 166,400 pounds, he was 50,900 pounds over the weight limit (166,400 — 115,500 = 50,900).

[¶ 46.] Further, the South Dakota Motor Carrier Handbook clearly explains how the bridge formula works and includes a weight table for easy reference. Again, we note that many jurisdictions have found similar statutes and graduated fines reasonable to enforce weight limitations on public roads. Goffe, 676 A.2d at 1385; Smith, 187 A.2d at 270. In reviewing an Illinois statute similar to SDCL 32-22-16 and SDCL 32-22-16.1, the Illinois Supreme Court held that the statute establishing maximum permissible wheel and axle loads and gross weights provided fair notice of what conduct was prohibited, and was not unconstitutionally vague as applied to tractor-trailer operators. Conlan, 244 Ill.Dec. 350, 725 N.E.2d at 1240-42. Further, the Conlan court stated, “[w]e believe anyone who attempts in earnest to understand the statute can fully comprehend its terms and, more importantly, understand what is prohibited.” Id. at 1241. The Conlan court concluded that the statute clearly passed the test of whether it provided due notice to the defendants, “giving them fair warning of what is prohibited, and explicit standards for those engaged in enforcement.” Id.; see also State Dep’t of Public Safety v. Elk River Ready Mix Co., Inc., 430 N.W.2d 261 (Minn.App.1988) (statute dealing with vehicle’s weight limitations is not unconstitutionally vague when (1) it states what limits are legally permissible and how those limits are arrived at to determine permissible weight, and (2) although statute is complex, it provides a standard such that a person expected to comply with it need not guess at its meaning or differ as to its application.)

[¶ 47.] We conclude that SDCL ch 32-22 is not unconstitutionally vague as applied to Krahwinkel. First, persons of ordinary intelligence have a reasonable opportunity to know what is prohibited. Second, the statutes do not lend themselves to arbitrary enforcement by the police.

6. Applicability of Double Penalty

[¶ 48.] In Young, we held that SDCL 32-22-56 applies when the gross vehicle weight exceeds the permissible weight by 10,000 pounds and not in cases where an individual axle weight exceeds the statutory limits but gross vehicle weight is less than the specified maximum. 2001 SD 76, 630 N.W.2d 85. Krahwinkel’s gross weight violation (total weight exceeded the allowable weight by more than 10,-000 pounds) invokes the double penalty in SDCL 32-22-56.

[¶ 49.] Officer Bryant measured the distance between the extreme or outermost axles on Krahwinkel’s tractor-trailer combination. This measurement of axle group 1-8 consisted of all eight axles on Krahwinkel’s vehicle. If the extreme axles on a vehicle, front and rear, are being considered, and the total weight or load exceeds allowable limits, a gross weight violation has occurred in the traditional sense. Conlan, 244 Ill.Dec. 350, 725 N.E.2d at 1242.

[¶ 50.] Clearly, SDCL 32-22-56 applied to Krahwinkel’s gross weight violation. Krahwinkel was properly assessed a double civil penalty for his gross weight violation.

7. Lift Axle Control in Cab

[¶ 51.] Krahwinkel maintains that he was improperly charged for violating SDCL 32-22-57.1. He argues that his tractor was registered in Montana and SDCL 32-22-57.1 only applies to vehicles “registered in South Dakota.”

[¶ 52.] During the trial, Officer Bryant indicated that Krahwinkel’s vehicle was proportionally registered and licensed. In South Dakota, proportional registration is available to owners who operate one or more fleets, each consisting of one-or more commercial vehicles in this state in interstate commerce. SDCL 32-10-15. An owner may register each fleet by filing an application for proportional registration in lieu of registering each vehicle individually. Id. Moreover, proportionally registered interstate fleet vehicles registered and identified under SDCL 32-10-17 “shall be deemed to be fully licensed and registered in this state for any type of movement or operation.” SDCL 32-10-20.

[¶ 53.] Accordingly, under SDCL 32-10-20 Krahwinkel’s vehicle is deemed to be fully registered in South Dakota for any type of movement or operation. SDCL 32-22-57.1 provides in pertinent part:

Any motor vehicle registered in South Dakota which is equipped with a variable load axle ... shall be equipped with a pressure control device. The control for adjusting pressure shall be mounted outside of the driver compartment....

Thus, Krahwinkel is in violation of SDCL 32-22-57.1 because his pressure control device was located inside his driver compartment and his vehicle was registered in South Dakota. Lastly, Krahwinkel cites no authority for his argument that his conviction on this statute violates interstate commerce.

[¶ 54.] Affirmed.

[¶ 55.] GILBERTSON, Chief Justice, and SABERS and ZINTER, Justices, and AMUNDSON, Retired Justice, concur.

[¶ 56.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . Under SDCL 32-22-16(1), the legal weight limit on any one axle is 20,000 pounds. The legal weight limit on any tandem axle is 34,-000 pounds. SDCL 32-22-16(2).

      . The circuit court asked Officer Bryant why he did not calculate the legal weight at 80,000 pounds because Krahwinkel was over that limit on the Interstate. Officer Bryant responded that he considered it as more like a permit violation and usually does not charge for a violation of the 80,000 pound limit on the Interstate because it can be taken care of with a $2.00 permit.

      . This statute has since been repealed. See footnote 13.

      . Officer Bryant stated that he did not check the lift axle pressure gauge when he stopped the truck and did not ask Krahwinkel what the lift axle pressure was at the time and place of the stop.

      . Krahwinkel was cited for the following violations:
      (1) SDCL 32-22-16.1 (overweight on Axles 1-8 — Ticket No. 13999);
      (2) SDCL 32-22-57.1 (lift axle in cab— Ticket No. 60201);
      (3) SDCL 32-22-52 (oversize load — Ticket No. 60202); and
      (4) SDCL 32-9-14 (overweight/no commercial vehicle certificate — Ticket No. 14000).

      . "Group” is defined as "1. An assemblage of ... objects gathered or located together; ... 3. A number of individuals or things considered together because of similarities.” American Heritage Dictionary 579 (2d ed 1982).

      . SDCL 32-22-16.1 entitled "Formula for weight on group of consecutive axles.” provides:
      For the purposes of § 32-22-16 the maximum gross weight on a group of two or more consecutive axles allowable on a public highway shall be determined by the following formula:
      W = 500 [LN/(N 1) + 12N + 36]
      In applying the above formula, "W” equals the overall gross weight on any group of two or more consecutive axles to the nearest five hundred pounds, "L” equals the distance measured longitudinally to the nearest foot from the foremost axles to the rearmost axle in a group of two or more consecutive axles, and "N” equals the number of axles in group under consideration.

      . Nearly every state has a "bridge formula” statute similar to SDCL 32-22-16.1. The state bridge formula statutes derive from 23 USC § 127, which ties the receipt of federal highway funds to enforcement of vehicle weight limitations and provides a formula to calculate weight violations. 23 USC § 127.

      . In both federal and state equal protection analysis, there are three tests to be applied depending upon the nature of the interest involved. First, the strict scrutiny test applies only to fundamental rights or suspect classes. Budahl v. Gordon and David Associates, 287 N.W.2d 489 (S.D.1980). Second, the intermediate or substantial relation test applies to legitimacy and gender. See State ex rel Wieber v. Hennings, 311 N.W.2d 41, 42 (S.D.1981); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Third, the rational basis test applies to all other classes. Eischen v. Minnehaha County, 363 N.W.2d 199, 201 (S.D.1985) (citations omitted).

      . Krahwinkel did not seek to obtain a permit before he was cited.

      . For example, the weight of a hay bale may be significantly affected by moisture and the type of plant material (i.e. wheat straw or alfalfa) involved. Similarly, livestock may move around a trailer during transport altering the weight on each axle.

      . The circuit court noted that SDCL 32-22-16.1 describes the so-called "bridge formula” and does not independently provide for an overweight violation. Instead, SDCL 32-22-16.1 must be read in conjunction with SDCL 32-22-16. Ticket # 13999 did not cite the correct statute. After trial, the circuit court allowed the State to amend Ticket # 13999 to reflect the correct statute. The original ticket clearly put any reasonable person on notice of the offense charged — “Overweight Bridge Axles 1-8.” A review of the defendant's filings, from the inception of this case, well prior to trial, clearly shows the defendant was not prejudiced, surprised, or otherwise deprived of any due process rights as a result of this technical error.

      . In 2002, the Legislature repealed SDCL 32-22-56 and amended SDCL 32-2-55 to include an additional penalty class: "In an amount equal to seventy-five cents per pound for each pound of such excess or combined excess weight if such excess is more than ten thousand pounds.”


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    IMMACULATE CONCEPTION CORP. and Don Bosco High School, Appellees, v. IOWA DEPARTMENT OF TRANSPORTATION, Appellant.
    No. 01-1493.
    Supreme Court of Iowa.
    Jan. 23, 2003.

      Thomas J. Miller, Attorney General, David A. Ferree, Special Assistant Attorney General, and Mark Hunacek, Assistant Attorney General, for appellant.
    John W. Holmes of Holmes & Holmes, Waterloo, for appellees.
   NEUMAN, Justice.

This appeal concerns Iowa Code section 306C.11 (1999), the statute that regulates outdoor advertising devices along Iowa’s primary highways. The Iowa Department of Transportation (DOT) enforced the statute against Don Bosco High School, requiring it to remove thirty-seven “booster signs” visible to the traveled portion of highway 297. The district court reversed the agency’s decision, finding that either an on-premise exception applied or the statute is unconstitutional. On the DOT’s appeal of the ruling, the court of appeals affirmed without opinion. See Iowa R.App. P. 6.24.

We granted the DOT’s petition for further review. For the reasons that follow, we vacate the court of appeals’ decision, reverse the district court and remand for an order upholding the agency’s order to remove the signs.

I. Background.

The facts are undisputed. Don Bosco High School’s baseball and softball diamonds are located within the city limits of Gilbertville, Iowa. Along the outfield fences of the ball diamonds, facing home plate, hang thirty-seven signs purchased by “boosters” whose local businesses support the high school’s athletic activities. The plywood placards are four-by-eight feet in size. Each displays the name of the booster. Most contain additional information such as the booster’s address, phone number, slogan (e.g., “No Job Too Small”) or logo.

Because these booster signs are within 660 feet of adjoining state highway 297, and visible from the traveled portion of the roadway, the DOT believed they violated pertinent portions of Iowa Code section 306C.11. The statute prohibits advertising devices “erected or maintained within any adjacent area, or on the right-of-way of any primary highway” except signs “concerning activities conducted on the property on which they are located.” Iowa Code § 306C.11. By statute, “adjacent area” means “an area which is contiguous to and within six hundred sixty feet of the nearest edge of the right of way of any interstate, freeway primary, or primary highway.” Id. § 306C.10(1). The term “[advertising device” is broadly defined to include

any outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, or any other device designed, intended, or used to advertise or give information in the nature of advertising, and having the capacity of being visible from the traveled portion of any interstate or primary highway.

Id. § 306C.10(2).

The DOT sent out removal notices. Contested administrative proceedings followed in which the high school challenged the DOT’S claim that the signs were visible from the highway. The school also claimed that enforcement of the statute was an assault on constitutionally protected commercial speech, an issue the administrative law judge (ALJ) did not resolve but preserved for judicial review.

An administrator for the DOT’S highway beautification program testified that he had personally observed the signs and that they were adjacent to highway 297 and visible to drivers along the roadway. In revealing testimony, one of the boosters not only admitted the signs could be read from the highway but, in the DOT’s words, “also helped explain why state law prohibits them”:

Q. If you are driving out of town and you take your eyes off the road and look over at the left and you try to pick out a sign, just one sign all by itself and read just one sign, can you read it? A. Maybe.
Q. What’s it depend on? A. The weather, for one thing.
Q. Assume it is clear weather. A. How fast you were going and if you want to have an accident or not by looking at the signs instead of at the road.

Based on this evidence, the ALJ affirmed the order for removal of the signs. Following an unsuccessful intra-agency appeal, the high school sought judicial review. The district court acknowledged that substantial evidence supported the agency’s finding that the signs are visible from the road, in evident violation of section 306C.11. It went on, however, to hold that the signs fell within the “on-premise” exception to the statute. Alternatively the court found the statute was not only an unconstitutional regulation of speech but violated due process and amounted to a taking of property without just compensation. This appeal by the DOT followed.

II. Scope of Review.

Our review is for the correction of errors at law. Soo Line R.R. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 688 (Iowa 1994). To the extent the appeal concerns issues of constitutional magnitude, we review the record de novo. Id.

III. Applicability of On-Premise Exception.

The district court evidently believed that the booster signs were not intended to advertise the boosters’ businesses but to celebrate the “boosterism” occurring within the ballfields themselves. In the court’s words, “this act of recognizing supporters and being recognized as a supporter of the athletic teams is an activity conducted on the property just as selling concessions, having a celebrity throw out the first pitch on opening day and the like.” Following this reasoning, the court concluded the on-premise exception to section 306C.11 applied. The DOT assails this conclusion on appeal. Bypassing its credible objection to the way the issue was preserved for review, we agree that the defense fails on its merits.

Under the on-premise exception, “[a]d-vertising devices concerning activities conducted on the property on which they are located” are not prohibited. Iowa Code § 306C.11(2). To qualify for the exception, an on-premise sign “must be located on the same property as the advertised activity” and limited to “identifying the activities located on or products or services available on the property.” Iowa Admin. Code r. 761-117.1 (1999). Thus, for example, the exception would permit a fast-food establishment like McDonald’s to erect signage on its own property notwithstanding its proximity to the highway. Cf. Brazelton Group v. Iowa Dep’t of Transp., 623 N.W.2d 581, 583 (Iowa 2001) (under similar language in predecessor statute, court affirmed order preventing company from locating sign for Ramada motel on property owned by Sirloin Stockade restaurant).

Here, the district court attempted to shoehorn something into the exception that simply does not fit. The placards in question do not merely identify or celebrate boosters in the bleachers. They advertise goods and services available to the public well beyond the centerfield fence. If their sole purpose were to foster goodwill, there would be no need to include addresses and telephone numbers on the signs. Moreover, as the DOT rightly points out, the goodwill generated by the signs “is the very essence of advertising.” Because the signs do not advertise products or services available on the property, they do not qualify for protection under the plain meaning of section 306C.11(2). The district court erred in so ruling.

IV. Constitutionality of Iowa Code section 306C.11.

The district court ruled that if the booster signs do not fit the on-premise exception, then the statutory prohibition against their display deprives the high school of due process, takes its property without just compensation and violates its right to freedom of speech. On appeal, the DOT begins by noting that the high school limited its constitutional claims to alleged First Amendment breaches, that is, claims that the statute violates “protected commercial speech” and “liberty of speech.” It asserts the other constitutional bases for the court’s decision have not been preserved for our review. We agree. See Garwick v. Iowa Dep’t of Transp., 611 N.W.2d 286, 288 (Iowa 2000) (failure to raise constitutional issue before agency prevents preservation of claim for judicial review and on appeal).

Two free-speech claims are before us. First, the DOT challenges the district court’s finding that the distinction drawn in section 306C.11 between on-premise and off-premise signs amounts to an unconstitutional content-based regulation of commercial speech. Second, the DOT contests the court’s conclusion that section 306C.11, as applied to these signs, unconstitutionally restricts speech without advancing the state’s interest in traffic safety or aesthetics.

Fundamental principles guide our resolution of these issues. Content-based speech regulations are forbidden by the Constitution. Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772, 786 (1984). But, as the DOT rightly argues, the district court has misinterpreted the meaning of “content-based” as applied to the facts of this case. Content-based statutes “favor some viewpoints or ideas at the expense of others.” Id. at 804, 104 S.Ct. at 2128, 80 L.Ed.2d at 786 (emphasis added). Section 306C.11 does not differentiate between types of advertising devices based on viewpoint. The statute regulates signage by location, a distinction having nothing to do with content. The United States Supreme Court has recognized this distinction, clearly holding that “offsite commercial billboards may be prohibited while onsite commercial billboards are permitted.” Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 512, 101 S.Ct. 2882, 2895, 69 L.Ed.2d 800, 818 (1981). Other courts have routinely rejected the argument put forth by the high school here. See, e.g., Messer v. City of Douglasville, 975 F.2d 1505, 1509 (11th Cir.1992) (city ordinance prohibiting off-premise billboards is viewpoint neutral); Nat’l Adver. Co. v. Chicago, 788 F.Supp. 994, 997-98 (N.D.Ill.1991) (distinction between on-site and off-site advertising “not aimed toward the suppression of an idea or a viewpoint”). The district court erred when it interpreted section 306C.11 to the contrary.

As for the claim that section 306C.11 otherwise unconstitutionally restricts the high school’s freedom of speech, we are guided by the four-part test articulated by the Supreme Court in Metrome-dia:

(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective.

Metromedia, 453 U.S. at 507, 101 S.Ct. at 2892, 69 L.Ed.2d at 815.

We observe at the outset that the speech being regulated here is of a commercial nature and thus afforded lesser constitutional protection than other forms of expression. See Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 563, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341, 349 (1980). Because the booster signs neither advertise illegal activity nor are they misleading, however, the state’s power to restrict them is circumscribed. Id. at 563-64, 100 S.Ct. at 2350, 65 L.Ed.2d at 349. Thus we move to the second part of the Metromedia test.

The DOT asserts that section 306C.11 advances the state’s interests ‘ in traffic safety and aesthetics. The Supreme Court has held these are “substantial governmental goals.” Metromedia, 453 U.S. at 507-08, 101 S.Ct. at 2892, 69 L.Ed.2d at 815; accord Messer, 975 F.2d at 1510-11. This court has long recognized our legislature’s intent to echo Congress’s national highway beautification and safety goals by regulating signage along Iowa’s primary roadways. Iowa Dep’t of Transp. v. Nebraska-Iowa Supply Co., 272 N.W.2d 6, 13 (Iowa 1978), overruled on other grounds by Estate of Grossman v. McCreary, 373 N.W.2d 113, 114 (1985); accord Meredith Outdoor Adver., Inc. v. Iowa Dep’t of Transp., 648 N.W.2d 109, 115 (Iowa 2002). In short, there can be little doubt that section 306C.11 addresses a substantial governmental interest in protecting the traveling public while preserving the landscape adjoining Iowa’s highways.

The high school nevertheless asserts that the record contains no evidence that section 306C.11 directly advances the goals it purports to address, thus failing the third prong of the Metromedia test. The fact is, the DOT does not need statistics or reports to enforce the plain mandate of the statute. It is the challenger who bears the burden of overcoming the presumptive constitutionality of a statute by negating every reasonable basis on which the law might be upheld. Brazelton, 623 N.W.2d at 584. The high school has not met that burden here.

Finally, the Constitution requires that the challenged statute be no “more extensive than is necessary” to meet the state’s articulated interests. Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351, 65 L.Ed.2d at 351. In that connection we note that section 306C.11 is less prohibitive than the ordinance at issue in Metromedia. There the Supreme Court upheld a statute prohibiting all outdoor off-premise advertising. Metromedia, 453 U.S. at 493-96, 101 S.Ct. at 2885-87, 69 L.Ed.2d at 805-08. Iowa Code section 306C.11 only prohibits advertising devices within 660 feet of the right-of-way. As the DOT suggested in its early correspondence with school officials over this controversy, they need only mount the signs so that they are not visible from the traveled portion of highway 297. And, of course, the statute does not affect the myriad other ways the school may lawfully recognize its boosters.

In summary, Iowa Code section 306C.11 draws a legitimate distinction between on-premise and off-premise signs and regulates the signage at issue here consistent with constitutional norms pertaining to commercial speech. The district court’s contrary judgment must be reversed and the court of appeals decision affirming that ruling, vacated. We remand to the district court for entry of an order affirming the DOT’s removal notice.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED WITH INSTRUCTIONS.


author: HANSON, Justice.

text:
    STATE of Minnesota, Petitioner, Appellant, v. Erwin Lanell LEWIS, Respondent.
    No. C7-01-1788.
    Supreme Court of Minnesota.
    Jan. 30, 2003.
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, and Timothy R. Faver, Beltrami County Attorney, Bemidji, for State of Minnesota.
    John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, Minneapolis, for Erwin Lanell Lewis.
   OPINION

HANSON, Justice.

Respondent Erwin L. Lewis (“Lewis”) was charged with one count of first-degree criminal sexual conduct. Lewis, entered into a plea agreement in which he pleaded guilty to a reduced charge of second-degree criminal sexual conduct in exchange for a stayed 86 month sentence and 25 years of probation, an upward durational departure of more than four times the presumptive sentence. The court of appeals affirmed Lewis’ conviction but remanded to the district court for resentenc-ing consistent with this court’s holding in State v. Misquadace, which was expressly made applicable to “pending” cases. We affirm the court of appeals’ conclusion that Lewis’ case was “pending” at the time of our decision in Misquadace but reverse the court of appeals’ decision to limit the remand to only the sentencing component of the plea agreement.

On May 31, 2000, Lewis’ niece by marriage accused him of sexually assaulting her during a family gathering in December 1995. She was twelve years old at the time of the assault. After an investigation, the Beltrami County Attorney charged Lewis with first-degree criminal sexual conduct. On June 20, 2001, Lewis agreed to plead guilty to an amended charge of second-degree criminal sexual conduct in exchange for a stayed 86 month sentence and probation for 25 years. Under the 2001 Minnesota Sentencing Guidelines, the presumptive stayed sentence for a second-degree criminal sexual conduct conviction is 21 months. Minnesota Sentencing Guidelines IV. Lewis later moved the district court to withdraw his guilty plea, arguing that he was innocent but had entered the plea because he lacked the financial resources and family support to endure a jury trial. The court denied Lewis’ motion because he failed to present any evidence that his plea was involuntary. On July 27, 2001, the court sentenced Lewis in accordance with the plea agreement to 86 months stayed and probation for 25 years. The court gave no reasons to support the upward durational departure except the plea agreement itself.

Lewis filed a notice of appeal on October 17, 2001. At that time, this court was in the process of reviewing the court of appeals’ decision in State v. Misquadace, 629 N.W.2d 487 (Minn.App.2001), rev. granted (Minn. Sept. 25, 2001). In Misquadace, the defendant agreed to plead guilty to four offenses under a plea agreement that contemplated four separate sentences, each containing some type of departure from the sentencing guidelines. 629 N.W.2d at 488-89. At his sentencing hearing, Misquadace attempted to withdraw his guilty plea, but the district court denied his motion and sentenced him in accordance with the plea agreement. Id.; State v. Misquadace, 644 N.W.2d 65, 67 (Minn.2002).

Misquadace appealed and argued that the district court failed to identify any substantial or compelling reasons for departing from the sentencing guidelines on two of his sentences. Misquadace, 629 N.W.2d at 489. The court of appeals reversed and remanded, holding that the district court does not have the discretion to depart from the sentencing guidelines solely because the defendant agrees to do so in a plea agreement. Id. at 492. Additionally, the court of appeals required that the district court, on remand, “disclose the substantial and compelling circumstances that support the departure.” Id. We granted review and affirmed the court of appeals, holding that all departures from the sentencing guidelines must be supported by something more substantial and compelling than the plea agreement alone. Misquadace, 644 N.W.2d at 72. We applied this new rule of law to Misquadace’s case and stated that it would apply to all “pending and future cases.” Id.

Following Misquadace’s lead, Lewis argued on appeal that the district court erred by imposing a sentence of more than four times the presumptive sentence based solely on his plea agreement. State v. Lewis, No. C7-01-1788, 2002 WL 1275790, at *1 (Minn.App. June 11, 2002). Citing our decision in Misquadace, the court of appeals affirmed Lewis’ conviction but remanded the sentencing component of the plea agreement to the district court for resentencing pursuant to the sentencing guidelines. Lewis, 2002 WL 1275790, at *2. The court of appeals concluded that the rule pronounced in Misquadace applied to Lewis’ appeal because it was a “pending” case at the time of the Misquadace opinion. Lewis, 2002 WL 1275790, at *4.

The state appealed, arguing that the rule in Misquadace does not apply to Lewis’ case because it was not “pending” at the time of the Misquadace opinion. The state argued alternatively that even if Mis-quadace applies, the court of appeals erred in remanding only the sentencing component of the plea agreement, which would allow Lewis to retain the benefit of a reduced charge while avoiding the burden of the agreed sentence. The state suggests that if the district court determines there are no independent grounds to support the sentence, it should be permitted to reconsider the entire plea agreement and, if it concludes that the reduced sentence would materially alter the plea bargain, to vacate the conviction and plea, reject the plea agreement and reinstate the original charge. We granted review.

I.

The state first argues that the rule in Misquadace does not apply retroactively to Lewis. We review de novo the question whether and to what extent our precedent should be given retroactive effect. See, e.g., State v. Costello, 646 N.W.2d 204, 207 (Minn.2002).

In Misquadace, we expressly limited its retroactive application to “this ease [Mis-quadace] and to pending and future cases.” 644 N.W.2d at 72 (emphasis added). The state interprets “pending” to be restricted to cases that had not yet reached the stage in the proceedings that Misquadace addressed, namely sentencing. Because Lewis had been sentenced before Misquadace was filed, the state contends that Lewis’ case was not “pending” at that time.

While we did not expressly define “pending” in Misquadace, we have previously discussed what constitutes a “pending” case in both civil and criminal contexts. In a civil context, we held that a statutory amendment that was to apply to “pending” cases was applicable to a case that was not final because it was on appeal, stating that “[a]n appeal suspends a judgment and deprives it of its finality, and that lack of finality continues until the appeal is dismissed or until the appellate court has pronounced its decision.” Holen v. Minneapolis-St. Paul Metro. Airports Comm’n, 250 Minn. 130, 84 N.W.2d 282, 287 (1957). We found this rationale even more compelling in criminal cases because to apply a new rule to the case in which it was announced but to not apply it to other cases that were then on direct appeal “would be to treat similarly situated criminal defendants differently.” State v. Baird, 654 N.W.2d 105, 112 (Minn.2002) (citing Griffith v. Kentucky, 479 U.S. 314, 327, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)); see also State v. Coolidge, 282 N.W.2d 511, 514-15 (Minn.1979) (applying a statutory amendment that mitigated punishment for criminal sexual conduct to acts committed by defendant before its effective date because no final judgment had been entered); State v. Hamilton, 289 N.W.2d 470, 474-75 (Minn.1979) (vacating a sentence based on a criminal statute that was repealed while the defendant’s conviction was on appellate' review).

Lewis timely appealed the district court’s judgment of conviction and was awaiting a decision from the court of appeals at the time of our decision in Mis-quadace. His case, therefore, was not yet final and was “pending,” in the sense that we have generally used that term. Additionally, in Misquadace, we did not adopt a purely prospective application of the rule because we applied it to Misquadace even though he had entered his plea almost two years before our decision. It would seem anomalous to apply the rule to Misqua-dace’s plea, made on September 27, 2000, but not to apply it to Lewis’ plea, made almost a year later on June 20, 2001.

Accordingly, we conclude that Lewis, whose direct appeal was pending before the court of appeals at the time of our decision in Misquadace, is entitled to the application of the rule of law announced in Misquadace.

II.

The state next argues that, if we apply the rule in Misquadace to Lewis, we should not allow him to retain the benefit of the reduced charge component of the plea agreement if he obtains a reduction of the sentence component of the same plea agreement. The state submits that if the district court determines that there are no grounds to support the agreed sentence on the reduced charge, the court should vacate Lewis’ guilty plea and reinstate the original charge.

The court of appeals disagreed. It construed Misquadace to only allow the district court to modify the sentence, while the conviction was to remain intact:

On May 9, 2002, the Minnesota Supreme Court released State v. Misquadace * * * and analyzed the same issue — can a defendant, who has voluntarily plea bargained for a fixed sentence outside the Minnesota Sentencing Guidelines, come back and appeal the sentence but not have to withdraw completely from the plea agreement and not stand trial on all the original charges, including those that may have been dropped as part of the plea agreement? We can only read Misquadace to say that it is so.

Lewis, 2002 WL 1275790, at *2 (citation omitted).

We conclude that the court of appeals reads Misquadace too narrowly. Misqua-dace did not specifically address the question whether the district court, on remand, can reconsider the conviction component of a plea agreement if it finds no grounds for departure from the sentencing guidelines on the sentencing component of the same plea agreement. We agree with the state’s argument that these two components are interrelated and that the district court should be free to consider the effect that changes in the sentence have on the entire plea agreement.

We hold that where the district court finds no compelling or substantial circumstances supporting an upward departure in the sentence that was agreed upon in a plea agreement, it may consider motions to vacate the conviction and the plea agreement.

Affirmed in part, reversed in part and remanded.

ANDERSON, RUSSELL A., J., took no part in the consideration or decision of this case.

      . The Minnesota Sentencing Guidelines consider two factors in assigning a presumptive sentence to a particular conviction: offense severity and criminal history. Minnesota Sentencing Guidelines II. Because all of the elements of Lewis' crime fall within the statutory definition of second-degree criminal sexual conduct and Lewis had no prior criminal record, his presumptive sentence in this case is 21 months. See Minn.Stat. § 609.343, subd. 1(a) (2002).

      . In Griffith, the United States Supreme Court defined "final,” for purposes of retroac-tivity, as "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or * * * finally denied.” 479 U.S. at 321 n. 6, 107 S.Ct. 708.

      . A motion to vacate the conviction and the plea agreement may raise double-jeopardy concerns. We do not address those concerns because the parties have not argued them and the district court has not had an opportunity to consider them.


author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Andrew Jerel STORKAMP, Defendant, Bartsh Bail Bonds, Petitioner, Appellant.
    No. CX-01-1462.
    Supreme Court of Minnesota.
    Feb. 20, 2003.

      Michael J. Michalski, St. Cloud, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Roger S. Van Heel, Stearns County Attorney, Richard J. May, Assistant County Attorney, St. Cloud, MN, for Respondent.
   OPINION

PAGE, Justice.

This appeal stems from an order denying the motion of the surety, Bartsh Bail Bonds' (Bartsh), for reinstatement, discharge, and refund of a $5,000 forfeited bail bond. The bail bond had been forfeited after the defendant, Andrew Storkamp, willfully failed to appear at two scheduled omnibus hearings. The district court, recognizing the good-faith efforts expended by Bartsh in apprehending Storkamp and the lack of prejudice to the state caused by his absence, nonetheless denied the surety’s motion. The court of appeals affirmed, concluding that the district court did not abuse its discretion. We reverse.

Storkamp was charged in Stearns County District Court with controlled substance crime in the second degree under Minn.Stat. § 152.022, subd. 2(1) (2002). He was released upon posting a $5,000 bail bond through Bartsh. Later, Storkamp signed a promise to appear in court for an omnibus hearing on February 9, 2001. He failed to appear at the omnibus hearing, but he was detained and taken into custody shortly after a bench warrant was issued for his arrest. Storkamp was released on bail again on February 15, 2001, after he posted an additional bail bond of $3,000 through Bartsh and signed a promise to appear for an April 6, 2001, omnibus hearing. Storkamp did not appear for the April 6 hearing and based on this missed appearance the district court, after notifying Bartsh, ordered forfeiture of the $5,000 bail bond.

Bartsh commenced efforts to apprehend Storkamp and return him to police custody. On June 3, 2001, Bartsh successfully returned Storkamp to police custody. In doing so, Bartsh incurred $1,200 in expenses. After Storkamp was returned to custody, Bartsh moved the district court for reinstatement, discharge, and a refund of the forfeited $5,000 bail bond. The district court commended the surety for the effort put forth in tracking Storkamp down and noted there was no evidence indicating that the state had been prejudiced by Storkamp’s absence. However, the district court found that Storkamp had acted in bad faith and willfully defaulted on his bail, that Storkamp’s bad faith was attributable to Bartsh, and that Bartsh did not provide any justification for mitigation of the forfeited bail and denied Bartsh’s motion.

The court of appeals affirmed based on its reading of Shetsky v. Hennepin County (In Re Shetsky), 239 Minn. 463, 471, 60 N.W.2d 40, 46 (1953), holding that the district court did not abuse its discretion. However, the court of appeals found this result troublesome because it felt Shetsky placed “entirely too much emphasis on the defendant’s wrongful conduct instead of on much more practical considerations such as prejudice to the prosecuting authority and the efforts of the surety to return defendant to custody.”

On appeal, the only issue before the court is whether the district court erred in concluding that evidence of the defendant’s bad faith requires an automatic forfeiture of the entire bail amount when the surety has made a successful good-faith effort to apprehend the defendant and the state has presented no evidence that it was prejudiced by the defendant’s absence. We review the district court’s denial of a motion to reinstate, discharge, and refund forfeited bail bonds for an abuse of discretion. Shetsky v. Hennepin County (In re Shetsky), 239 Minn. 463, 471, 60 N.W.2d 40, 46 (1953). A district court abuses its discretion when its ruling is based on an erroneous view of the law. See Almor Corp. v. County of Hennepin, 566 N.W.2d 696, 701 (Minn.1997).

Minnesota Statutes § 629.58 (2002) provides that when a person accused of a criminal act is released upon the posting of a bond and fails to perform the conditions of the bond, the bond will be defaulted. The penalty for default is forfeiture of the amount of the bond to the court. See id. We have determined that the bail statutes are remedial and should be interpreted liberally to ensure that their purpose is accomplished. Shetsky, 239 Minn. at 468-69, 60 N.W.2d at 45. In releasing the accused upon the posting of a bond, a dual purpose is served: relieving the accused of imprisonment and relieving the state of the burden of detaining him pending his trial. Id. at 471; 60 N.W.2d at 46. This is accomplished by placing the accused in the “custody” of “a jailer of his own choosing,” the surety, who will ensure the accused’s presence at trial without in any way impairing or delaying the administration of justice or prejudicing the state in its prosecution. Id.

If the defendant fails to appear and the bond goes into default, the court may forgive or reduce the penalty if, based on the circumstances of the case and the situation of the parties, it determines that such action is just and reasonable. Minn.Stat. § 629.59 (2002). The court may not treat bail as a way to increase the revenue of the state or to punish the surety. Shetsky, 239 Minn. at 471, 60 N.W.2d at 46. Section 629.58 is, in part, intended to encourage sureties to voluntarily pay the penalty for failing to ensure the presence of the accused without requiring that the state undergo the expense of litigation to recover the defaulted bond amount. Shetsky, 239 Minn. at 469, 60 N.W.2d at 45. It also serves to encourage sureties to locate, arrest, and return defaulting defendants to the authorities to facilitate the timely administration of justice. See State v. Midland Ins. Co., 208 Kan. 886, 494 P.2d 1228, 1232 (1972) (noting that “[tjhere would be small incentive for the surety to run down and return its principal at its own expense if no part of the penalty of the bond could be remitted under equitable circumstances”); State v. Amador, 98 N.M. 270, 648 P.2d 309, 312-13 (1982) (stating that a statutory provision providing for mitigation upon a surety’s production of a defaulting defendant creates incentive for the surety to track down and apprehend fleeing defendants). If section 629.58 is interpreted too narrowly, its incentives will be undermined and its purposes defeated. See Shetsky, 239 Minn. at 469, 60 N.W.2d at 45; Amador, 648 P.2d at 312-13 (explaining that strict application of forfeiture statutes discourages sureties from giving bonds or producing defaulting defendants). The burden of proof to establish that mitigating circumstances exist rests on the party seeking mitigation. Shetsky, 239 Minn. at 472, 60 N.W.2d at 46.

In Shetsky, we established several factors that a reviewing court shall consider when determining whether the district court abused its discretion in denying a motion to reinstate a forfeited bail bond. Those factors are: (1) the purpose of bail, the civil nature of the proceedings, and the cause, purpose, and length of the defendant’s absence; (2) “the good faith of the surety as measured by the fault or willfulness of the defendant”; (3) “the good-faith efforts of the surety — if any — to apprehend and produce the defendant”; and (4) any prejudice to the state in its administration of justice. Id. at 471, 60 N.W.2d at 46. In evaluating these factors, we recognized that when the accused willfully does not meet the conditions of his or her bond without a justifiable excuse, this misconduct is attributable to the surety. Id. at 474, 60 N.W.2d at 48. We also noted that when the prosecution provides evidence that it was deprived of proof or otherwise adversely affected because of the defendant’s unexcused absence, this weighed heavily against the remittance of the forfeited bond. Id. at 470, 60 N.W.2d at 45.

Bartsh argues that the district court abused its discretion in the way it applied Shetsky to the facts of this case. Bartsh maintains that a correct application of Shetsky would have resulted in the reinstatement of the forfeited bond. Bartsh also argues that Shetsky needs to be revisited if it requires that a court deny a motion to reinstate a bond when the defendant absconds in bad faith even though the surety acted in good faith in successfully returning the defendant to the authorities and the state presents no evidence that it suffered any prejudice.

In this case, the district court found that Bartsh acted in good faith in apprehending Storkamp and that Storkamp’s absence did not result in prejudice to the state. Those findings notwithstanding, the district court focused on the fact that the defendant had acted in bad faith, found that “[t]he surety did not [provide] a justification for mitigation of forfeited bail,” and denied Bartsh’s motion. In doing so, the district court did not explain why the bad-faith conduct trumped both Bartsh’s good-faith effort to return Storkamp to justice and the lack of prejudice to the state. Thus, it appears that the district court assumed that the defendant’s bad-faith conduct automatically trumped Bartsh’s good-faith apprehension of Storkamp and the lack of prejudice to the state.

In Shetsky, we never attributed this type of preeminence to the bad-faith conduct of the defendant. In fact, if we were to now hold that the bad faith of the defendant automatically trumps the surety’s good-faith effort to return the defendant to justice and the lack of prejudice to the state, those factors would become largely irrelevant except when the surety can prove that the failure to appear is justified. That result would undermine and frustrate the purposes of encouraging the surety to voluntarily surrender the bond amount, as well as the purpose of encouraging sureties to locate, arrest, and return defendants who have absconded. See Midland, 494 P.2d. at 1232 (stating that “[tjhere would be small incentive for the surety to run down and return its principal at its own expense if no part of the penalty of the bond could be remitted under equitable circumstances”); see also Shetsky, 239 Minn. at 476, 60 N.W.2d at 49 (Loring, C.J., dissenting) (noting that it is not desirable to create a situation where it would be futile under any circumstance for a surety to apply for relief from forfeiture). Therefore, we conclude that the district court abused its discretion when it found that the defendant’s bad faith controlled its decision regarding whether to reinstate, discharge, and refund the forfeited bond amount.

Based on this conclusion and our review of the record, we reverse the court of appeals and remand to the district court for reinstatement, discharge, and refund of the forfeited $5,000 bail bond.

Reversed and remanded with instructions.

      . The district court noted that the second bail bond inadvertently was not forfeited at this time. The court of appeals treated this inadvertence as an appropriate mitigation for Bartsh’s expenses in recapturing Storkamp and turning him over to the authorities.


author: GILBERT, Justice.

text:
    In the Matter of Thomas DANIEL for the Establishment of a Cartway.
    No. CX-01-1820.
    Supreme Court of Minnesota.
    Feb. 20, 2003.

      James R. Cope (# 187677), Andrew R. Peterson (# 312599), Virginia, MN, for Appellant.
    Alan L. Mitchell, St. Louis County Attorney, Timothy O. Lee (# 61803), Assistant County Attorney, Duluth, MN, for Respondent.
   OPINION

GILBERT, Justice.

This case presents the issue of whether a property owner who has access to his lake cabin property via a navigable waterway can invoke Minn.Stat. § 164.08, subd. 2(a) (2002), to establish a cartway over the lands of others. Thomas Daniel, owner of a parcel of land bordering Lake Vermillion in an unorganized territory, petitioned the St. Louis County Board of Commissioners requesting that a cartway be established over the adjoining land of Donald Schoch. The board of commissioners, acting as a town board pursuant to Minn.Stat. § 164.08, subd. 2(a) and (b), held a hearing on the matter and issued an order granting Daniel the requested cartway. The board awarded $18,022 to Schoch, to be paid by Daniel, to compensate for Schoch’s land used to establish the cartway. See Minn.Stat. § 164.08, subd. 2(c) (requiring petitioner to pay damages before the cart-way will be opened). Schoch appealed the board’s decision to the St. Louis County District Court. Respondent, St. Louis County, moved for summary judgment. The court held a hearing on the summary judgment motion and issued an order and memorandum granting respondent’s motion for summary judgment. Schoch appealed the summary judgment order to the court of appeals. The court of appeals held that lake-only access is not sufficient access within the meaning of Minn.Stat. § 164.08, subd. 2(a) and affirmed the district court’s summary judgment order. We reverse the court of appeals.

Thomas Daniel and Donald Schoch own adjoining parcels of land. Daniel’s only access to his property, since he purchased it in 1995, has been via Lake Vermillion. On July 4, 1999, a windstorm caused significant blow-down of trees on the properties of both Schoch and Daniel. Schoch constructed a road on his property to access the downed trees. Thereafter, Daniel and Schoch discussed extending the road over Schoch’s property to Daniel’s property in order to remove the downed trees on Daniel’s property. When the discussions did not lead to an agreement, Daniel petitioned the St. Louis County Board of Commissioners to grant Daniel a cartway across Schoch’s land. The St. Louis County Board of Commissioners held a hearing and found “[t]hat the Petitioner does not have access to his property except across the property of others,” and issued the following conclusions:

1. That the Petition for a cartway is properly before the St. Louis County Board. 2. That Petitioner individually owns land containing at least five (5) acres which has no access thereto except over the lands of others. 3. That the requested cartway is the most appropriate means of access to the land of the Petitioner. 4. That 3.90 acres of land will be taken by the cartway and that the owners of that property have sustained damages of $18,022.

Schoch appealed to the district court. Pursuant to Minn. R. Civ. P. 56, respondent, St. Louis County, moved for summary judgment. The district court held a hearing on the motion for summary judgment. At the hearing, the factual question of whether Daniel had access to the downed trees via nearby Minnesota Department of Natural Resources winter roads was disputed, as well as whether lake access constituted access under the cartway statute. The district court ordered summary judgment, thereby affirming the decision of the St. Louis County Board.

The memorandum accompanying that order stated, “The court is unable to find any case law or Minnesota statute that indicates the legislature’s intent that lake access is sufficient access to deny a petition for a cartway pursuant to Minn.Stat. § 164.08, subd. 2.” Finding no dispute as to a material issue of fact, the district court held that “the Board of Commissioners did not abuse its legislative discretion in determining that Respondent satisfied the statutory conditions of Minn.Stat. § 164.08, subd. 2.”

The court of appeals affirmed the district court. In the Matter of Thomas Daniel for the Establishment of Cartway, 644 N.W.2d 495 (Minn.App.2002). It concluded access via Lake Vermillion does not qualify as access within the meaning of the cartway statute; therefore, Daniel was entitled to a cartway across Schoch’s property. Id. at 499. The court of appeals went on to conclude that Schoch was not entitled to a fact hearing because the fact that Daniel has lake access to his property was not disputed and the statutory interpretation issue presented in the case was purely a question of law. Id. We granted review.

We address two questions when reviewing an order for summary judgment: “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Here, both parties concede that the relevant facts are undisputed. The district court in applying statutory language to undisputed facts makes a conclusion of law, which we review de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998). Therefore, the sole issue is whether the district court correctly interpreted Minn.Stat. § 164.08, subd. 2. We interpret statutes to effectuate the intent of the legislature. Minn.Stat. § 645.16 (2002).

The cartway statute states in relevant part:

Upon petition presented to the town board by the owner of a tract of land containing at least five acres, who has no access thereto except over the lands of others, or whose access thereto is less than two rods in width, the town board by resolution shall establish a cartway at least two rods wide connecting the petitioner’s land with a public road.

Minn.Stat. § 164.08, subd. 2(a).

Minnesota has a long-established tradition of accessing lake properties via navigable waterways. The language from the statute requiring that a cartway be granted to owners with “no access” to their property except over the lands of others was enacted in 1913. Act of Apr. 15, 1913, ch. 235, § 55, 1913 Minn. Laws 314, 314-15. At the time this provision of the cart-way statute was enacted, travel over navigable waterways was more commonplace than it is today and was often the best mode of transportation. Therefore, in interpreting the word access under this statute, it would be improper to exclude from consideration access via navigable waterway.

The county concedes that Daniel has access to his property via Lake Vermillion, but argues that since a cartway facilitates land-based travel for motor vehicles and the cartway statute is part of the town road statute, it would be inconsistent with the overall intention of the statute to consider lake access to be access under the statute. The county further argues that because the statute requires the establishment of a cartway when access is less than two rods in width, the statute relates to only an over-land connection to a county road.

As the county points out, the cartway statute is part of chapter 164 entitled “Town Roads.” The statute permits a property owner “who has no access thereto except over the lands of others” to petition the local governing body to establish a cartway connecting a petitioner’s land with a public road. Minn.Stat. § 164.08, subd. 2(a). That possibility, however, does not support the county’s contention that only land-based access should be considered in this analysis. Access for the purposes of determining eligibility for a cartway can also include ingress and egress via navigable waters such as Lake Vermillion.

The court of appeals stated that State ex rel. Rose v. Town of Greenwood, 220 Minn. 508, 20 N.W.2d 345 (1945), while not controlling, provided some guidance in the present case. In re Daniel, 644 N.W.2d at 497. We disagree. The case law relating to cartways in Minnesota is inapposite.

In Rose, two of a property owner’s seven lots were cut off from access to a public road by a lake. This court made the following statements in describing the lake in Rose:

There was some testimony that the lake had dried up and that access could be had across the lake bottom; but the testimony in this respect was in conflict. It showed that there was water in the lake and that it could be used for navigation by rowboat and for fishing. Relator’s evidence showed that it was a muddy lake and that it was impracticable to build a road across it.

Rose, 220 Minn. at 513-14, 20 N.W.2d at 348.

The issue of whether the property could be accessed by lake was not even considered in Rose. Rather, the analysis was limited to whether the nature of the lake in Rose prevented land-based travel to the property. See id. at 513-14, 20 N.W.2d at 348. There is no indication that access via the waterway was ever claimed or considered. In contrast, here, it is claimed that for years Daniel’s property has been enjoyed in its present condition with access provided solely via Lake Vermillion.

The St. Louis County Board concluded that in regard to Daniel’s property there is “no access thereto except over the lands of others.” Such is not the case. Indeed, Daniel’s property and numerous properties on Lake Vermillion have for over a century been accessed only via navigable waterway. The board’s finding that Daniel had “no access” simply cannot be reconciled with our interpretation of Minn.Stat. § 164.08, subd. 2(a). Therefore, we hold the district court erred in its interpretation of Minn.Stat. § 168.04, subd. 2, by not considering access via navigable waterway to be access. Under the facts of this case, where it is indisputable that the party requesting the cartway has access to his property via Lake Vermillion, there is no need for further factual findings. We reverse the court of appeals and remand to the district court to enter judgment in favor of Schoch.

Reversed and remanded.

      . One rod equals 16.5 feet. Webster’s Third New International Dictionary 1967 (1993).