author: VANDE WALLE, Chief Justice.

text:
    2001 ND 146
    STATE of North Dakota, Plaintiff and Appellee, v. Kathlene SHAFER-IMHOFF, a/k/a Karin Kathlene Shafer-Imhoff, Defendant and Appellant.
    No. 20000350.
    Supreme Court of North Dakota.
    Aug. 29, 2001.

      Rick L. Volk (argued), Assistant State’s Attorney, and Leann K. Bertsch (appeared), Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Rodney E. Pagel (argued), and Jeffrey S. Weikum (appeared), Pagel Weikum Law Firm, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Kathlene Shafer-Imhoff appealed the district court judgment and conviction of two counts of removal of a child from the state in violation of N.D.C.C. § 14-14-22.1. We affirm the verdicts but remand to the trial court for re-sentencing in accordance with this opinion.

I

[¶ 2] Kathlene Shafer-Imhoff (“Shafer”) and Lars Imhoff (“Imhoff’) were divorced in March of 1998, after nine years of marriage. Imhoff was granted custody of their two children and Shafer was granted visitation. The parties agreed Shafer would have the children for extended visitation during the summer of 1998, from June 1 to 15 and again from July 1 to 15. At the end of the second summer extended visitation on July 15, 1998, Shafer did not return the children to their father. Shafer had taken her two children out of the country. Eight months later, the children and Shafer were located in London, England. Shafer was charged with two counts of removal of a child from the state in violation of N.D.C.C. § 14-14-22.1., a class C felony.

[¶ 3] Prior to the trial, the State moved to exclude evidence of physical assaults on Shafer. Shafer opposed the motion, claiming it was relevant to the element of intent. The trial court excluded the evidence, allowing Shafer to testify about her fear but not about the assaults. The trial court stated the evidence of assaults on Shafer by third parties was not relevant to the crimes charged and was unfairly prejudicial.

[¶ 4] The trial lasted one day with the case submitted to the jury for deliberation at about 3:00 p.m. Within two hours, the jury indicated they were unable to come to a unanimous decision. The trial court read to the jury instructions concerning their duty to reach a verdict, as suggested in State v. Champagne, 198 N.W.2d 218 (N.D.1972). The jurors were also given a copy of these instructions and were dismissed from the courtroom to continue deliberation.

[¶ 5] Later, the jury submitted to the trial court specific questions on the element of intent. The trial court, after conferring with the parties, reconvened the parties and the jury in the courtroom. The trial court provided the jury with answers, a special verdict form and instructions in response to the jury’s questions, as agreed by the parties. At 9:00 p.m. the trial court sent the jury home for the evening, after informing them that each of the parties would present additional closing arguments in the morning solely focused on the element of intent.

[¶ 6] The next morning, the parties presented additional closing arguments to the jury and the jury resumed deliberation. At 11:00 a.m., the jury returned the verdict of guilty on both counts of removal of a child from the state in violation of N.D.C.C. § 14-14-22.1.

[¶7] The trial court sentenced Shafer to five years for each count, suspending all but eighteen months on each count followed by five years of parole. The court ordered Shafer pay $22,765.20 restitution and a court fine of $2,500. The court stayed the sentence pending resolution of the appeal.

II

[¶ 8] Shafer argues the trial court abused its discretion by excluding evidence of physical assaults on her. Shafer’s offer of proof for this evidence included photographs of her injuries, testimony from two witnesses who reported hearing fighting in Shafer’s apartment, and testimony of Shafer’s sister and boyfriend who observed bruising and other injuries to Shafer. Shafer claims she was a victim of assaults by unknown assailants who would make statements during the attacks concerning child-custody issues. The assaults were never in the presence of her two children until July 1998. In July 1998, Shafer alleges she was assaulted in the presence of her two children. Fearing for their safety, Shafer removed them from the state. No one was charged with any of the assaults. The July 1998 assault Shafer claimed was in the presence of the children was not reported to the police.

[¶ 9] Shafer claims the evidence of the assault is relevant to prove her intent was not to deny Imhoff s rights under the existing custody decree but rather to protect the safety of her children.

[¶ 10] Section 14-14-22.1, N.D.C.C., provides .criminal penalty for removal of a child from the state in violation of a custody decree.

Any person who intentionally removes, causes the removal of, or detains the person’s own child under the age of eighteen years outside North Dakota with the intent to deny another person’s rights under an existing custody decree is guilty of a class C felony. Detaining the child outside North Dakota in violation of the custody decree for more than seventy-two hours is prima facie evidence that the person charged intended to violate the custody decree at the time of removal.

[¶ 11] The trial court allowed Shafer to testify about her fears, her concerns, and her intents, but excluded the evidence of the assaults. The trial court stated the crimes' Shafer was charged with are very specific. The charges are she removed the two children from the state with intent to deny someone’s rights under an existing custody decree. Whether or not she was assaulted, the trial court clarified, was not relevant to the resolution by the jury of these two crimes. Also, the trial court believed the evidence of assaults would unfairly prejudice the State on the charges of removal of the children.

[¶ 12] Relevant evidence means evidence that reasonably and actually tends to prove or disprove any fact that is of consequence to the determination of an action. Botnen v. Lukens, 1998 ND 224, ¶ 11, 587 N.W.2d 141. N.D.R.Ev. 401. A trial, court has wide discretion in deciding whether proffered evidence is relevant, and we will not overturn a trial court’s admission or exclusion of evidence on relevance grounds unless the trial court abused its. discretion. State v. Osier, 1999 ND 28, ¶ 5, 590 N.W.2d 205. Even relevant evidence may be excluded under N.D.R.Ev. 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. N.D.R.Ev. 403. A trial court is vested with broad discretion to decide not only if evidence is relevant but also if its probative value substantially outweighs the danger of unfair prejudice. State v. Steinbach, 1998 ND 18, ¶ 9, 575 N.W.2d 193. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Barta v. Hinds, 1998 ND 104, ¶ 5, 578 N.W.2d 553.

[¶ 13] The trial court reasonably excluded the evidence because the evidence did not indicate the assaults on Shafer were in any way directed at the children, and therefore were not relevant to any element of the charge. Therefore, evidence of assaults had the potential to unfairly prejudice and mislead the jury. The trial court did not act in an arbitrary, unreasonable, or unconscionable manner when it excluded the evidence of the assaults.

Ill

[¶ 14] Shafer contends the trial court abused its discretion when it required the parties to make additional closing argument to the jury prior to any further indication by the jury they were at an impasse. Shafer also claims the trial court erred by not giving the jury instruction Shafer requested, which was the jury instruction suggested in the explanatory note of N.D.R.Ct. 6.9. Furthermore, Shafer maintains the trial court comments to the jury were an abuse of discretion.

[¶ 15] The jury left the courtroom to begin their deliberation at 3:12 p.m. Open court resumed at 5:20 p.m. The trial court stated it received a message from the jury, “[t]he jurors have asked that I inform the Court that we can’t come to a unanimous decision.” The message was signed by the presiding juror. The trial court responded by telling the jury the matter has to be decided and it was their responsibility as jurors to weigh the evidence and come to a verdict, stating they had all the evidence they needed to come to a decision. Next, the trial court read a special instruction for the jury in accordance with the instructions in State v. Champagne, 198 N.W.2d 218 (N.D.1972):

1. In order to return a verdict, each juror must agree to the verdict.
2. You jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment.
3. All jurors must decide the case for themselves, but only after an impartial consideration of the evidence with their fellow jurors.
4. In the course of deliberations, you jurors should not hesitate to re-examine your own views and change your opinion if you are convinced it is erroneous.
5. You jurors should not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of reaching a verdict.

[¶ 16] The jury was then given a written copy of the instructions and excused from the courtroom. At 7:44 p.m. the parties met with the trial judge in chambers. The jury sent another question, “[w]hy is the word ‘with the intent’ used?” The trial court proposed the answer, “[a]s to your first question, the language used by the Legislature is ‘with the intent.’ This is one of many crimes that cannot be done by accident. To be guilty one has to have intent of doing what one is accused of doing.” The jury had a second question, “[c]an that be removed” to which the trial court answered, no it cannot be removed. The third question was, “[w]hy on the Ver-diet sheet does it not mention with the intent?” The answer given to this question was the verdict form simply uses a shorthand reference to the crime charged. The jury also asked, “[i]s all we need to decide what is on the Verdict sheet?” In response to this question, the trial court suggested and the parties agreed to an amended verdict form that included the language of the definition of the crime charged in the verdict form.

[¶ 17] At 9:00 p.m. open court resumed, with the parties and jury present. The trial court explained the responses given to their previous questions were the result of discussion and agreement with the parties. The trial court continued addressing the jurors, reinforcing it was the job of the jury to decide cases and observing the trial was originally scheduled for eight days and those eight days were still on the schedule. Releasing them for the evening, the trial court also informed the jury of its plans to have each of the attorneys make additional closing arguments in the morning, according to the direction given by N.D.R.Ct. 6.9 on assisting jurors at impasse. The trial court directed the attorneys to plan about ten minutes of additional closing arguments focused on the element of intent to deny. Before dismissing the jury for the night the trial court added, “I’m looking forward to getting this case resolved. Like I said, I’ve got all eight days. It won’t be a problem for me. Thank you all very much.”

[¶ 18] The next morning, Shafer objected to the use of N.D.R.Ct. 6.9 because there was no indication a second impasse had occurred. Also, Shafer was concerned about interjecting new arguments after deliberation had started. Shafer requested the instruction listed in the comments of N.D.R.Ct. 6.9 be given to the jury and an additional instruction reminding the jury arguments are not evidence. Shafer raised a concern the additional closing arguments would improperly focus the attention on the minority of the jurors if there were jurors in the minority, and objected to the comments the jurors would stay for eight days or however long is necessary. Lastly, Shafer objected to the focus on intent in the additional closing arguments and requested the paragraph on the requirement of a unanimous verdict of the jury instructions be read again to the jury. The trial court agreed to re-read the requested paragraph and overruled the other objections.

[¶ 19] Both parties presented additional closing arguments, after the trial court re-read the requested paragraph. The jury left the courtroom at approximately 9:00 a.m. to deliberate, returning at 11:00 a.m. with a verdict of guilty on both counts.

[¶ 20] Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. State v. Erickstad, 2000 ND 202, ¶ 16, 620 N.W.2d 136. We review jury instructions as a whole and, if the instructions correctly advise the jury on the law, they are sufficient although part of the instructions, standing alone, may be insufficient or erroneous. Id. On appeal, we will reverse if an instruction is erroneous, it relates to a central subject in the case, and it affects a substantial right of the accused. State v. Eldred, 1997 ND 112, ¶ 83, 564 N.W.2d 283.

[¶ 21] Suggestions on assisting jurors at impasse are provided by N.D.R.Ct. 6.9:

If the jury Informs the court it has reached an impasse, the court, after conferring with counsel, may invite the jurors to list in writing the divisive issues, which if addressed further in the courtroom might bring about a verdict. After receiving the jurors’ written response, the judge, after conferring with counsel, may direct further proceedings to occur as appropriate.

[¶ 22] The explanatory note of N.D.R.Ct. 6.9 explains the rule allows a judge to offer assistance in hopes of improving the chances of a verdict but cautions the judge not to be coercive, suggestive, or unduly intrusive. Patterned after an Arizona rule, the comments include the judge’s response suggested by Arizona rules. These were the instructions requested by Shafer:

This instruction is offered to help your deliberations, not to force you to reach a verdict.
You may wish to identify areas of agreement and areas of disagreement. You may then wish to discuss the law and the evidence as they relate to areas of disagreement.
If you still have disagreement, you may wish to identify for the court and counsel which issues or questions of law or fact you would like counsel or the court to assist you with. If you elect this option, please list in writing the issues where further assistance might help bring about a verdict.
I do not wish or intend to force a verdict. We are merely trying to be responsive to your apparent need for help. If it is reasonably probable that you could reach a verdict as a result of this procedure, it would be wise to give it a try.

[¶ 28] The trial court did not read these particular instructions to the jury, stating the instruction did not adequately address the situation. Instead, the trial court found the next paragraph of the explanatory note for N.D.R.Ct. 6.9 more appropriate and particularly useful in this circumstance. The last paragraph of the explanatory note provides:

Some of the ways a judge may give assistance include: giving additional instructions, clarifying earlier instructions, directing the attorneys to make additional closing argument, reopening the evidence for limited purposes, or a combination of these measures. The court may decide it is not legally or practically possible to respond to the jury’s concerns.

[¶ 24] Rule 6.9, N.D.R.Ct. is discretionary in nature. Rather than requiring the trial court to read specific instructions or to follow a set procedure, the language of N.D.R.Ct. 6.9 suggests the trial court “may invite the jurors to list in writing the divisive issues” and, after receiving the juror’s written response and conferring with the parties, “may direct further proceedings to occur as appropriate.” There is no requirement for a second indication from the jury that they have reached an impasse. The jury initially indicated they were unable to come to a unanimous decision. Further notes from the jury specified the particular issue on which they had questions. The trial court consulted with the parties to arrive at answers to the questions before they were given to the jury. By requiring the parties to add to their closing arguments on the one issue in contention, the trial court followed the suggestions contained in the explanatory note of N.D.R.Ct. 6.9. We see no error in the trial court answering the questions from the jury and allowing the parties to add to their closing arguments.

[¶ 25] The particular instructions contained in the explanatory note of N.D.R.Ct. 6.9 are not required but only recite a suggestion Arizona included in its rules. In response to requests from the jury, the trial court read the instructions as suggested by this Court in State v. Champagne, re-read parts of the jury instructions given initially, and clarified the verdict on a special verdict form. A trial court is not required to instruct the jury in the exact language sought by a party if the court’s instructions adequately and correctly inform the jury of the applicable law. State v. Carlson, 1997 ND 7, ¶ 16, 559 N.W.2d 802. The trial court did not err by not reading the exact instructions requested by Shafer.

[¶ 26] Shafer raised concerns about the trial court’s additional comments to the jury when responding initially to their indication of an impasse, as well as further comments, on the grounds the comments were coercive. As we explained in State v. Hartsoch, 829 N.W.2d 867, 371 (N.D.1983), to determine if remarks by the trial court to the jury are improper or coercive, we examine them in light of the totality of the circumstances: In Hart-soch, the court’s comments concerning the cost of a new trial were determined to be relatively mild in nature and they were followed immediately by “[i]f you can’t [render a verdict], of course, you can’t.” Id. We determined the court’s comments did not have a coercive effect. Id.

[¶ 27] In State v. Hanson, 53 N.D. 879, 207 N.W. 1000, 1002 (1926), the trial court, in response to how much time the jury had to come to a verdict, stated “[u]nlimited time. You have got all eternity, until some of you die, for you to arrive at a verdict. The court will expect you to work on the case until an agreement is reached.” The Court held this comment was not coercive, considering the trial court’s response to the jury foreman’s next question “how long is our time specified?” The trial court indicated there was no fixed time for deliberation, but it would probably be a matter of days, however it was the trial court’s intention the jury decide this matter. Id. This Court explained “[w]e do not believe it possible that intelligent and honest men could have been influenced by the remarks of the trial court to bring in a verdict contrary to their sense of duty.” Id. Similarly, we do not believe the trial court directing the jury to “get in there and decide this one way or the other” or his reference to the eight days set aside for this trial had a coercive effect on the jury. Upon review of the instructions and comments given to the jury by the trial court as a whole, we conclude the trial court’s actions were not clearly érroneous.

rv

[¶ 28] Shafer contends, as a matter of law, she cannot be imprisoned under N.D.C.C. § 14-14-22.1 because N.D.C.C. § 1-02-17 extinguishes the punishment of imprisonment for a repealed statute.

[¶ 29] A trial judge is allowed the widest range of discretion in fixing a criminal sentence; this court has no power to review the discretion of the sentencing court in fixing a term of imprisonment within the range authorized by statute. State v. Steinbach, 1998 ND 18, ¶ 24, 575 N.W.2d 193. “Appellate review of a criminal sentence is' generally confined to whether the [trial] court acted within the sentencing limits prescribed by statute, or substantially relied upon an impermissible factor.” State v. Magnuson, 1997 ND 228, ¶ 23, 571 N.W.2d 642. Statutory interpretation, however, is a question of law fully reviewable on appeal. Ness v. Ward County Water Resource Dist., 1998 ND 191, ¶ 12, 585 N.W.2d 793.

[¶ 30] Shafer removed her children from the state in July 1998. The statute establishing the crime and penalty for removal of a child from the state in violation of a custody decree was repealed, effective August 1999. N.D.C.C. § 14-14-22.1. No replacement penalty existed in Chapter 14-14.1, N.D.C.C., effective August 1, 1999. [¶ 31] Section 1-02-17, N.D.C.C., describes the effect the repeal of a statute has with respect to the penalty provision of the repealed statute. Referred to as a savings statute, N.D.C.C. § 1-02-17 generally “saves” any non-prison punishment for a violation of a statute committed prior to a repeal of that statute. The “saving” refers to saving the punishment from the application of the doctrine of abatement. See State v. Cummings, 386 N.W.2d 468, 470 n. 1 (N.D.1986). At common law, punishment for a statute that was repealed, after the commission of the act constituting the crime but prior to conviction, was abated. Id. The savings statute legislatively provided a way around the abatement and kept the punishment, in effect at the time the act was committed, in force through conviction. Id. We explained the purpose of savings statutes in Cummings, 386 N.W.2d at 470 n. 1 (N.D.1986):

The common law doctrine of abatement holds that a repeal or amendment of a penal statute bars further prosecutions for violations of the statute which occurred before its repeal or amendment and abated all pending prosecutions which had not reached final judgment. Under the doctrine, a repeal or amendment was interpreted' as indicative of a legislative intent that offenses prohibited by the repealed or amended statute, although committed while the statute was still in force, should no longer be regarded as criminal and therefore should not be punished under the repealed or amended statute.
The doctrine of abatement, however, often produced unjust and undesired consequences. If a legislature repealed or amended and re-enacted a criminal statute with an increased penalty, a violator of the former law could not be convicted under either the old or the new statute. Conviction under the former law was precluded by the doctrine of abatement and conviction under the new statute was constitutionally prohibited as an ex post facto law. In order to avoid this outcome, general saving clauses were enacted or specific saving provisions inserted in the repealing or amending act in order to preserve the state’s ability to prosecute offenses committed under the former law.

[¶ 32] North Dakota’s saving statute, N.D.C.C. § 1-02-17, saves “any penalty, fíne, liability, or forfeiture;” however, our savings statute does not “save” the punishment of imprisonment:

The repeal of any statute by the legislative assembly, or by the people through an initiated law, does not have the effect of releasing or extinguishing any penalty, fine, liability, or forfeiture incurred under such statute, but as to cases tried before, or subsequent to, the repeal of such statute, it has the effect of extinguishing any jail or prison sentence that may be, or that has been, imposed by reason of said law, unless the repealing act provides expressly that the penalties of imprisonment shall remain in force as to crimes committed in violation of such law prior to its repeal. In other respects, such act shall remain in force only for the purpose of the enforcement of such fine, penalty, or forfeiture.

[¶33] The trial court held N.D.C.C. § 14-14-22.1 was repealed, not amended. Therefore, N.D.C.C. § 1-02-17 applied. However, relying on Ex parte Chambers, 69 N.D. 309, 313, 285 N.W. 862, 864 (1939), the trial court concluded the provision of N.D.C.C. § 1-02-17 extinguishing a prison sentence for violation of a repealed statute was an unconstitutional exercise of the power to pardon by the legislature. Because the power to pardon is exclusive to the Governor, the trial court reasoned, N.D.C.C. § 1-02-17 cannot eliminate the punishment of imprisonment without constituting an invalid exercise of legislative clemency. The State invites us to adopt the trial court’s all encompassing application of Chambers to invalidate the exclusion of imprisonment from the “savings” statute, N.D.C.C. § 1-02-17. We decline the invitation for the reasons we now explain.

[¶ 34] Chambers is substantially different from this case. Chambers was convicted of engaging in liquor traffic. Chambers, 69 N.D. at 311, 285 N.W. at 862. The crime was committed on November 27, 1935. 69 N.D. at 312, 285 N.W. at 863. The law making engaging in liquor traffic illegal was repealed by general election on November 3, 1936. Id. At that time, the forerunner to N.D.C.C. § 1-02-17, N.D. Comp. Laws of 1913 § 7316, “saved” the punishment as it existed at the time of the crime, despite the repeal of the law prior to Chamber’s conviction and sentencing in March 1937. Id. At that time, the savings clause saved all penalties, including imprisonment. Id. The savings statute in place at the time of Chamber’s crime and conviction provided:

The repeal of any statute by the legislative assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforeement of such penalty, forfeiture or liability. N.D. Comp. Laws 1913 § 7316 (1913).

See State v. Houge, 67 N.D. 251, 271 N.W. 677 (1937).

[¶ 35] In 1939, two years after Chambers was convicted and sentenced, the legislature amended the savings statute to save penalties, forfeiture or liability, but specifically extinguished prison sentences. Chambers, 69 N.D. at 312, 285 N.W. at 863. The 1939 amended version of N.D. Comp. Laws 1913 § 7316 provided:

The repeal of any statute by the Legislative Assembly or by the people by an initiated law, shall not have the effect to release or extinguish any penalty, fine, liability, or forfeiture incurred under such statute, but as to cases tried before, or subsequent to, the repeal of such statute, it shall have the effect of extinguishing any jail or prison sentence, that may be, or has been, imposed by reason of said law, unless the repealing act shall expressly provide that the penalties of imprisonment shall remain in force as to crimes committed in violation of such law prior to its repeal. In other respects, such act shall remain in force only for the purpose of the enforcement of such fine, penalty, or forfeiture. 1939 N.D. Sess. Laws ch. 134, § 1 (effective March 18,1939).

[¶ 36] The Court held in Chambers, 69 N.D. at 316, 285 N.W. at 865, the legislature had overstepped its bounds and infringed on the exclusive pardoning power of the Governor.

Applied to cases in which judgment of conviction had been had and sentence pronounced prior to the effective date of said act, it is an extension of legislative clemency. It would operate to commute that portion of any sentence of imprisonment, imposed under the terms of a repealed statute, which remained to be served after the effective date of said act. This is clearly an exercise of the pardoning power. Chambers, 69 N.D. at 313, 285 N.W. at 864.

[¶ 37] The Court further explained the narrow scope of its holding in Chambers, 69 N.D. at 316, 285 N.W. at 865:

It follows that the 1939 amendment and re-enactment of Section 7316, Comp. Laws of N.D.1913 (House Bill 259), in so far as it attempts to extinguish the sentences to imprisonment of persons against whom judgment of conviction had been had in the trial court prior to the effective date of such act, conflicts with Section 76 of the State Constitution as amended by Article 3 of Amendments to the Constitution and to that extent is invalid. (Emphasis added).

[¶ 38] In Chambers this Court determined the savings statute was invalid to the extent it extinguished the prison sentences of persons who were convicted prior to the effective date of the revised savings statute. Id. The holding is limited to the legislative amendment of the savings statute that attempted to reach back two years and override the old savings statute, in effect at the time of Chamber’s conviction and sentencing, to extinguish the punishment of imprisonment.

[¶ 39] In contrast, the savings statute in place at the time of Shafer’s crime and conviction extinguished prison penalties for statutes repealed after the commission of the violation but before the conviction. N.D.C.C. § 1-02-17. It does not' follow that the application of N.D.C.C. § 1-02-17 to eliminate prison as an option for punishment of Shafer for acts she committed prior to the repeal of N.D.C.C. § 14-14-22.1 but for which she was tried and convicted after the repeal, is invalid as an unconstitutional exercise by the legislature of the power to pardon. The savings clause as it now reads was in effect at the time Shafer removed the children and at the time of her conviction. The clause in N.D.C.C. § 1-02-17 extinguishes prison sentences if the statute making an act a crime is repealed. It now applies to crimes committed prior to the repeal but for which a conviction is entered after the repeal. It therefore is not a pardon because no conviction was entered at the time of repeal of the statute making the act an offense. The trial court’s interpretation of Chambers is too broad.

[¶ 40] An abatement of punishment for an act that occurred when a law was in effect but for which no conviction was entered until after the law was repealed, cannot be deemed an unconstitutional pardon. If it were, there would be no need for savings statutes, because, any abatement by the legislature, or by the judiciary at common law, would be an invalid pardon.

[¶ 41] Previously, we held Chambers did not invalidate the retrospective application of legislation ameliorating criminal punishment. State v. Cummings, 386 N.W.2d 468, 472, n. 2 (N.D.1986). In Cummings, an amelioration of a prison sentence was not an invalid exercise of the power to pardon. Id.

[¶ 42] Recently in State v. Burr, 1999 ND 143, ¶ 11, 598 N.W.2d 147, we confirmed the legislature is free to apply statutes retroactively unless doing so would result in ex post facto application. Statutes generally are not retroactive unless expressly declared so by the legislature. State v. Kaufman, 310 N.W.2d 709, 715 (N.D.1981). However, in Cummings, 386 N.W.2d at 472, we departed from that principle because the statute in question involved an ameliorating amendment to a criminal statute. We created a narrow exception to the general rule for ameliorating penal legislation. Midwest Property Recovery, Inc. v. Job Service of North Dakota, 475 N.W.2d 918, 921 (N.D.1991). In Cummings, 386 N.W.2d at 472, we concluded “unless otherwise indicated by the Legislature, an ameliorating amendment to a criminal statute is reflective of the Legislature’s determination that the lesser punishment is the appropriate penalty for the offense.” Because we found a “compelling inference” that the legislature intended to apply retroactively a penal statute that reduced punishment, we created the exception for ameliorating penal legislation. Id.

[¶ 43] Cummings committed the offense of driving under suspension on June 15, 1985, after the passage of the 1985 amendment to N.D.C.C. § 39-06-42, but prior to its effective date of July 1, 1985. Cummings, 386 N.W.2d at 470. The 1985 statute reduced the mandatory minimum penalty from fifteen days to four days. Id. The trial court sentenced Cummings to fifteen days, according to the statute in effect when Cummings committed the offense. Id. On appeal, we reduced the sentence to four days, in accordance with the 1985 statute mitigating the punishment. Id. We concluded we could rationally infer legislative intent from the amendment itself that the legislature intended the 1985 reduced sentence to apply.

There is a compelling inference that the 1985 Legislature, by reducing the mandatory minimum penalty for violation of’NDOC § 39-06-42 from fifteen days’ imprisonment to four consecutive days’ incarceration, determined that the former penalty was too harsh and that the latter and lighter punishment was the appropriate penalty for violations of that statute.
That the Legislature had such an intent seems obvious; nothing is gained by imposing a more severe punishment after the Legislature has determined that a lighter penalty is appropriate. The excess in punishment can serve no other purpose than to satisfy a desire for vengeance, a legislative motivation we will not presume.
We conclude that, unless otherwise indicated by the Legislature, an ameliorating, amendment to a criminal statute is reflective of the Legislature’s determination that the lesser punishment is the appropriate penalty for the offense. Consequently, while we reaffirm today, as we did recently in City of Mandan v. Mi-Jon News, Inc., 381 N.W.2d 540 (N.D.1986), the general rule that statutes are not retroactive unless expressly declared so by the Legislature, we also hold that an exception should be made to this general rule in the case of ameliorating penal legislation. It follows that the 1985 ameliorating statute should be applied to offenses committed prior to its effective date, provided that the defendant has not yet been finally convicted of the offense. Id. at 472.

[¶ 44] We clarified in a footnote that although “final conviction” is difficult to define exactly, it was clear Cummings had not been finally convicted “because his direct appeal from his judgment of conviction and sentence had not been ruled on by this Court.” Id. at 472 n. 2. Therefore, the prohibition against legislation lessening punishment as an infringement on the executive power to pardon in Chambers, did not apply to the situation in Cummings. Id.

[¶ 45] Although it does not interpret N.D.C.C. § 1-02-17, Cummings does stand for the proposition that the legislature can ameliorate punishment of imprisonment and the amelioration can be retroactively applied prior to final conviction ■without infringing on the executive branch’s exclusive power to pardon. Interpreting Chambers to declare invalid any exercise of legislative mitigation of punishment applied retroactively is taking too broad of a sweep, inconsistent with our prior case law and inconsistent with Chambers.

[¶ 46] Section 1-02-17, N.D.C.C., validly applies to the repeal of N.D.C.C. § 14-14-22.1. Therefore, the punishment of imprisonment for Shafer’s violation of N.D.C.C. § 14-14-22.1 is extinguished.

[¶ 47] Shafer alternatively asserts the savings statute N.D.C.C. § 1-02-17 does not apply to this case because N.D.C.C. § 14-14-22.1 was amended, not repealed. In Kittelson v. Havener, 239 N.W.2d 803, 806 (N.D.1976), we held North Dakota’s general saving statute, N.D.C.C. § 1-02-17, applies only to repealing legislation, and not to amendments. We also noted “serious reservations whether or not the provisions of this section apply to the instances where a statute was repealed and replaced by another Act even though the substituted Act differed somewhat from the repealed statute.” Id. Because N.D.C.C. ch. 14-14 was a 1969 codification of the Uniform Child Custody Jurisdiction Act which in 1999 was amended to conform to the Uniform Child Custody Jurisdiction and Enforcement Act, codified as N.D.C.C. ch.14-14.1, Shafer claims N.D.C.C. § 14-14-22.1 was not repealed, but only amended. Shafer maintains the savings clause of N.D.C.C. § 1-02-17 does not apply; therefore, the common law doctrine of abatement applies. We affirm the trial court’s finding N.D.C.C. § 14-14-22.1 was repealed and we agree the saving statute of N.D.C.C. § 1-02-17 applies.

[¶ 48] Shafer also argues she has a right to invoke her right to be sentenced under ch. 14-14.1 pursuant to N.D.C.C. § 12.1-01-01(3). Because we decide N.D.C.C. § 1-02-17 applies to extinguish the penalty of imprisonment, we need not further consider this argument.

[¶ 49] Shafer also claims dismissal of the criminal prosecution is appropriate because prosecution is contrary to the legislative intent and the federal laws to which North Dakota’s state laws conform. Our primary objective in construing a statute is to ascertain the intent of the legislature by looking at the language of the statute itself and giving it its plain, ordinary, and commonly understood meaning. State ex rel. Heitkamp v. Family Life Services, Inc., 2000 ND 166, ¶ 7, 616 N.W.2d 826. Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous, we look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute. N.D. Securities Commissioner v. Juran and Moody, Inc., 2000 ND 136, ¶ 6, 613 N.W.2d 603. When a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05; Lawrence v. North Dakota Workers Compensation Bureau, 2000 ND 60, ¶ 19, 608 N.W.2d 254. Section 14-14-22.1, N.D.C.C., is clear and unambiguous on its face and, giving the words of the statute their plain, ordinary, and commonly understood meaning, demonstrated the legislature’s intent to provide a penalty for removal of a child from the state with the intention to deny another person’s rights under an existing custody decree. Section 1-02-17, N.D.C.C., is equally clear and unambiguous in saving the penalties and fines but not the imprisonment portion of that repealed statute.

V

[¶ 50] We affirm the verdicts but remand for re-sentencing in accordance with this opinion.

[¶ 51] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN,, and DALE V. SANDSTROM, JJ., concur.

      . Senate Bill No.2046 of the Fifty-seventh Legislative Assembly of North Dakota in 2001 provides a penalty for removal of child from state in violation of custody decree, similar to the repealed N.D.C.C. § 14-14-22.1. The effective date of this penalty is March 19, 2001.

      . The substance of the 1939 amended version is the same as the current N.D.C.C. § 1-02-17.


source: Caselaw Access Project

author: AMUNDSON, Justice. GILBERTSON, Justice SABERS, Justice

license: Public Domain

text:
    2001 SD 102
    Kelli HAGEMANN, as Special Administratrix of the Estate of Chad Hagemann, deceased, and Jason Sims, Plaintiffs, v. NJS ENGINEERING, INC., Defendant, and Lawrence County, a political subdivision of the state of South Dakota, the Lawrence County Highway Department, and Charles Williams, Lawrence County Highway Superintendent, Defendants, Third Party Complainants and Appellants, v. Jason Sims, Third Party Defendant and Appellee.
    No. 21732.
    Supreme Court of South Dakota.
    Argued May 31, 2001.
    Decided Aug. 8, 2001.

      Daniel E. Ashmore, Jennifer K. Trucano of Gunderson, Palmer, Goodsell and Nelson, Rapid City, SD, Attorneys for appel-lee Jason Sims.
    Thomas E. Brady, Spearfish, SD, Attorney for appellants.
   AMUNDSON, Justice.

[¶ 1.] The County of Lawrence (County) appeals the trial court’s dismissal of County’s third-party complaint pursuant to SDCL 15-6-12(b). We affirm.

FACTS

[¶ 2.] On June 24,1999, Chad Hagemann and Jason Sims, co-employees of Alpha Omega Company, were travelling east on Lawrence County road number 664. Sims was driving "a company vehicle as Hagem-ann was a passenger. While crossing a wooden bridge, a plank somehow lodged under the rear axle of the vehicle causing it to roll. Although Sims survived the accident, Hagemann was ejected from the vehicle and suffered fatal injuries. Alpha Omega paid worker’s compensation benefits to Hagemann’s estate. Hagemann’s estate brought a wrongful death action against County for failure to maintain the bridge where the fatal accident occurred.

[¶ 3.] In response to the wrongful death action filed by Hagemann’s estate, County filed a third-party complaint against Sims claiming that Sims was negligent in the operation of the vehicle. County claims it would be entitled to contribution or indemnity if it was found liable for the death of Hagemann because Sims was at least partially responsible for the accident. Sims filed a motion to dismiss claiming that SDCL 62-3-2 prevents suit against him. The trial court agreed with Sims and granted his motion to dismiss pursuant to SDCL 15-6-12(b)(5). County appeals raising the following issue:

Whether SDCL 62-3-2 precludes County from seeking contribution or indemnity from Sims.

STANDARD OF REVIEW

[¶4.] This Court’s standard of review of a trial court’s grant or denial of a motion to dismiss is the same standard as that which is applied upon review of a motion of summary judgment-“is the pleader entitled to judgment as a matter of law?” Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 6, 592 N.W.2d 596, 597-98 (quoting Steiner v. County of Marshall, 1997 SD 109, ¶ 16, 568 N.W.2d 627, 631). Therefore, we review all facts most favorable to the nonmovant party. Id. We continue to review questions of law, particularly issues of statutory construction, de novo. In re Estate of Klauzer, 2000 SD 7, ¶ 22, 604 N.W.2d 474, 479.

DECISION

[¶ 5.] The disposition of this case depends on whether under SDCL 62-3-2, Sims is a joint tortfeasor pursuant to SDCL 15-8-11. “The intent of the statute must be determined from what the legislature said, rather than what this court thinks the legislature should have said, and this determination must be confined to the plain, ordinary meaning of the language used by the legislature.” M.B. v. Konenkamp, 523 N.W.2d 94, 97 (S.D.1994). The rules of statutory construction adopted by this Court state:

The purpose of rules regarding the construction of statutes is to discover the true intention of the law, and said intention is to be ascertained by the court primarily from the language expressed in the statute. In applying legislative enactments, we must accept them as written. The legislative intent is determined from what the legislature said, rather than from what we or others think it should have said.
While it is fundamental that we must strive to ascertain the real intention of the lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the already inexact and uncertain business of searching for legislative intent.
One of the primary rules of statutory ... construction is to give words and phrases their plain meaning and effect. This court assumes that statutes mean what they say and that legislators have said what they meant. WThen the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court’s only function is to declare the meaning of the statute as clearly expressed in the statute.

South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, ¶ 17, 589 NW2d 206, 209 (quoting In re Famous Brands, Inc., 347 N.W.2d 882, 884-85 (S.D.1984)). SDCL 62-3-2 provides:

The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort.

SDCL 62-3-2 makes it clear that employer and employee are in the same position when it comes to barring suit against them. To allow such an action for contribution to proceed would circumvent the plain language of SDCL 62-3-2, which prevents suit against “any employee.”

[¶ 6.] Being that SDCL 62-3-2 provides “any employee” immunity from suit, contribution against Sims under the Uniform Contribution Among Tortfeasors Act is also barred. As a matter of law, Sims is not a joint tortfeasor. Under the Act, codified in SDCL ch 15-8, a “joint tortfeasor” is defined as “two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” SDCL 15-8-11 (emphasis supplied). As this Court stated in Burmeister v. Youngstrom, 81 S.D. 578, 139 N.W.2d 226, 231 (1965), the Act only applies “where there is a common liability to an injured person in tort” and “there can be no contribution where the injured person has no right of action against the third-party defendant.” (emphasis supplied). This Court made it “abundantly clear” that contribution only arises when “there is joint or several liability rather than the presence of joint or concurring negligence.” /¿.(emphasis supplied). SDCL 62-3-2 immunizes Sims from suit, and, as such, he cannot be held liable as a joint tortfeasor no matter his degree or percentage of negligence. As stated in Larson’s: Workers Compensation Law, § 121.02:

The great majority of jurisdictions have held that the employer [or co-employee] whose negligence contributed to the employee’s injury cannot be sued or joined as a joint tortfeasor, whether under contribution statutes or at common law. The ground is a simple one: the employer [or co-employee] is not jointly liable to the employee in tort; therefore it cannot be a joint tortfeasor. The liability that rests upon the employer [or co-employee] is an absolute liability irrespective of negligence, and this is the only kind of liability that can devolve upon it whether it is negligent or not.

As Sims cannot be held liable under SDCL 62-3-2, by definition, he cannot be a joint tortfeasor under SDCL ch 15-8, the Uniform Contribution Among Tortfeasors Act.

[¶ 7.] Rather than arguing the interpretation of SDCL 62-3-2, County urges this Court to disregard South Dakota statutory and case law, and invites us to follow Illinois and Minnesota case law to reach its desired result. County contends that the cases of Kotecki v. Cyclops Welding Corp., 146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023 (1991) and Lambertson v. Cincinnati Weldingt Corp., 812 Minn. 114, 257 N.W.2d 679 (1977) as precedent to follow in this case. In essence, the Kotecki case and the Lambertson case hold that an employer could be held liable for contribution, but that the amount contributed would be limited to workers’ compensation benefits. 166 Ill.Dec. 1, 585 N.E.2d at 1027; 257 N.W.2d at 689. Therefore, by analogy, County contends that Sims, as an employee, should also be held liable for his proportionate share depending on his percentage of fault.

[¶8.] Not only are the cases cited by County not binding on this Court, their principle holding contravenes the plain language of SDCL 62-3-2 and our holding in Abraham. In Abraham, this Court stated:

Our interpretation of [SDCL 62-3-2], in accordance with previous decisions and read together with other statutes, is that SDCL 62-3-2 does operate as an exclusionary provision which prevents claims against fellow employees for injuries obtained in the scope of employment[.]

1999 SD 90, ¶ 22, 598 N.W.2d 512, 518. SDCL 62-3-2 unambiguously provides that an employee cannot maintain a negligence action against his employer or co-employee as workers’ compensation is the exclusive remedy for a work-related injury. To follow the Illinois and Minnesota case law in this area would involve rewriting South Dakota’s workers compensation law by this Court. We decline the invitation to legislate in this case. Since SDCL 62-3-2 bars County’s action against Sims, it was proper for the trial court to dismiss this case as provided by SDCL 15-6-12(b)(5).

[¶ 9.] We affirm.

[¶ 10.] KONENKAMP, Justice, concurs.

[¶ 11.] GILBERTSON, Justice, concurs in result.

[¶ 12.] MILLER, Chief Justice, and SABERS, Justice, dissent.

GILBERTSON, Justice

(concurring in result).

[¶ 13.] The subject we are faced with was first addressed by the South Dakota Legislature in chapter 376, section 5 of the 1917 Session laws. It provided:

The rights and remedies herein granted to an employee subject to this act on account of personal injury or death by accident arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, on account of such injury or death.

Thus, at that time, an employee who was injured or killed on the job was precluded from suing anybody and everybody. The ban was all-inclusive in exchange for workers’ compensation benefits.

[¶ 14.] Through chapter 422 of the 1977 Session Laws and chapter 370, section 2 of the 1978 Session Laws, the Legislature limited the scope of this ban. SDCL 62-3-2 now states:

The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort, (emphasis added).

Thus, the amendments limited the scope of the prohibition against suit by the employee to claims against “his employer or any employee, partner, officer of director of such employer-” Clearly this prohibition does not apply to suits initiated by party defendants such as Lawrence County, and I disagree with the majority opinion’s conclusion to the contrary.

[¶ 15.] Disposition of this issue instead rests upon an examination of the individual claims. County claims a right contribution under the Uniform Contribution Among Tortfeasors Act, arguing Simms is a “joint tortfeasor” under the Act. As the majority opinion points out, Simms cannot be a joint tortfeasor because he is not liable in tort for the injury to Hagemann. This conclusion is in line with the vast majority of jurisdictions, and is based on a plain reading of the clear language of SDCL 15-8-11. In addition, a claim for contribution is intimately tied to, and “on account of personal injury or death.” SDCL 62-3-2. For those reasons, County’s claim for contribution falls within the exclusivity provision of SDCL 62-3-2, and cannot stand.

[¶ 16.] A claim for indemnity, however, is not “on account of personal injury or death.” Id. Indemnity is a separate cause of action that arises “independent of the underlying liability.” Weiszhaar Farms, Inc. v. Tobin, 522 N.W.2d 484, 492 (S.D.1994). Indemnity is an equitable remedy by which the burden of loss is entirely shifted from one party onto another. Mark, Inc. v. Maguire Insurance Agency, Inc., 518 N.W.2d 227, 230 (S.D.1994). South Dakota law allows a claim for indemnity to proceed in the following circumstances: (1) derivative or vicarious liability; (2) action at direction of, and for, another; (3) breach of duty to indemnify; (4) failure to discover negligence of another; and (5) express contract. Id. Indemnity can arise through contractual agreement or based on a legal relationship, such as that between bailee and bailor or between a principal and her agent. Professor Larson notes in his treatise that as a general rule, “[t]he third party may recover-over against the employer [or employee] whenever it can be said that the employer [or employee] breached an independent duty toward the third party and thus acquired an obligation to indemnify the third party.” Larson’s Workers’ Compensation Law, § 121.04 at 121-47. Because a claim for indemnity is an independent cause of action, which does not arise “on account of personal injury or death,” it should not be dismissed out of hand based on the exclusivity provision of SDCL 62-3-2. See id. Rather, it should be allowed to proceed, but only if the employer or employee owes an independent duty to the third party.

[¶ 17.] The question for this Court then becomes whether Simms owed an independent duty to County. Simms owes no contractual duty to indemnify County. Nor does the relationship between Simms and County create such a legal duty. Therefore, because Simms owes no duty to indemnify County, the circuit court was correct in dismissing County’s third party complaint against Simms.

[¶ 18.] For the above reasons, I concur in result.

SABERS, Justice

(dissenting).

[¶ 19.] The majority opinion fails to read SDCL 62-3-2 in its proper light. The position taken by other courts in addressing this issue and allowing contribution and indemnity best demonstrates the error:

The phrase most frequently heard in arguments against recovery over by the third party against the employer is this: the allowance of such recovery ever accomplishes indirectly what cannot be done directly and, therefore, evades the spirit of the legislation. This is not entirely accurate, for it does not tell the whole story. True, the end result is that a common-law size recovery proceeds from the employer to the employee. In the process, however, two things are accomplished, one of which is relevant to the purposes of the compensation provision and the other of which is independent of it. The relevant accomplishment is that of preserving the employee’s common-law rights against negligent outsiders. This having been done, there still remains the job of adjusting rights fairly between the outsider and the negligent employer. The question here becomes very precise: did the compensation acts, in conferring immunity on the employer from common-law suits, mean to do so only at the expense of the injured employee, or also at the expense of outsiders? One answer is that whereas the injured employee got quid pro quo in receiving assured compensation payments as a substitute for tort recoveries, the third party has received absolutely nothing and, hence, should not be impliedly held to have given up rights which he had before.

[¶ 20.] Lambertson v. Cincinnati Welding Corp., 312 Minn. 114, 257 N.W.2d 679, 688-89 (1977) (quoting Larson, Workmen’s Compensation: Third Party’s Action Over Against Employer, 65 NWU.L.Rev. 351, 419). As Larson recognizes in his treatise on worker’s compensation, “[e]ach side to the controversy has an argument in its favor which, considered alone, sounds irresistible.” Larson, Worker’s Compensation: Third Party Actions, § 121.01 at-121-4. The employer asserts the exclusivity provision, whereas the third party may be “subject to a staggering liability it would not have had to bear but for the sheer chance that the other parties involved happened to be under a -compensation act.” Id. Yet, other courts have found a way to balance the interests and achieve a fair allocation, unfortunately the majority opinion has not.

[¶ 21.] The majority opinion uses SDCL 62-3-2 to define the rights of a third party in a context in which it was never meant to apply. As recognized by the court in Lam-bertson, “[a] situation like this ought to be dealt with legislatively. It is rather inconsiderate to force courts to speculate about legislative intention on the strength of statutory language, in the framing of which the draftsmen had not the remotest trace of the present question in their minds.” Lambertson, 257 N.W.2d at 689. Despite the majority opinion’s stated declaration that “[w]e decline the invitation to legislate in this case,” that is exactly what it is doing.

[¶ 22.] Interpreting South Dakota law on claims for indemnity, the United States District Court for South Dakota held that “an indemnity claim may properly be raised by a third party against an employer discharged from direct liability to his injured employee.” Harn v. Standard Engr. Co., 416 F.Supp. 1168, 1169 (D.S.D.1976). In so holding, the court recognized that:

The reasoning behind the foregoing cases is that an indemnity claim is not derivative of the employee’s claim. Rather, indemnity is based on a set of facts warranting a conclusion that the indem-nitor owes a distinct obligation or duty to the indemnitee. This obligation exists separate and apart from any liability which the employer as indemnitor might have had to his injured employee.

Id. at 1170. As SDCL 62-3-2 treats employers and employees equally, the foregoing reasoning is equally applicable- to a third party recovery against Simms as a co-employee, even if recovery is ultimately obtained or offset against Alpha Omega as the employer.

[¶ 23.] The majority opinion attempts to utilize the definition of “liability” to defeat any attempt at contribution or indemnity. In so doing, the majority opinion relies on Burmeister v. Youngstrom, a guest statute case which indicated that when there is no joint liability there is no contribution. 81 S.D. 578, 139 N.W.2d 226, 231. The Minnesota court in Lambertson rejected this reasoning and overruled their prior cases indicating there was no recovery because there was no “common liability.” Lambertson, 257 N.W.2d at 688. We should do the same. The definition of liability or joint liability has many connotations, of which one certainly has to be responsibility for wrongs. SDCL 20-9-1.

While there is no common liability to the employee in tort, both the employer and the third party are nonetheless liable to the employee for his injuries; the employer through the fixed no-fault workers’ compensation system and the third party through the variable recovery available in common law tort action. Contribution is a flexible, equitable remedy designed to accomplish a fair allocation of loss among parties. Such a remedy should be utilized to achieve fairness on particular facts, unfettered by outworn technical concepts like common liability.

Lambertson, 257 N.W.2d at 688.

[¶ 24.] In recognizing the need to create a “fair allocation of loss” the Lambertson court limited the right of contribution and indemnity by a third party against the employer/employee to the total worker’s compensation exposure. Id. at 689. Other courts have done the same, the effect of which is to preserve the compensation act, yet not to force third party’s to bear the brunt of a loss for which they are not responsible. “No doubt, if open-ended contribution over against employer was permitted the social and economic policies underlying the compensation scheme would be subverted.” Larson, Worfcer’s Compensation: Third Party Actions, § 121.03 at 121-27. In effect, the limitation of exposure, espoused by the Lambertson court and embraced in other jurisdictions, would require at most that the employer pay the maximum under worker’s compensation and the third party pay the amount over and above the worker’s compensation maximum for which it is liable, after taking into account any contributory negligence. Through this apportionment, the third party avoids overexposure and the employer is limited to its rightful exposure. Id. at 121-30, 31 (discussing the Minnesota rule and the reduction of compensation from third party recovery).

[¶ 25.] The majority opinion result is inequitable and totally unfair both now and for the indefinite future. For example, Simms was allowed to intervene in this action as a plaintiff against County. Certainly, his own negligence will be used to offset any recovery he may seek from County. Yet, remarkably, the majority opinion expects the taxpayers of the County to absorb his negligence as it relates to the death of Hagemann. This would be totally inconsistent and unfair. A commonsense interpretation would correctly place the worker’s compensation statutes in the worker’s compensation context and place the joint tortfeaser statutes in the joint tortfeaser context. I vote for a commonsense interpretation of these separate, independent chapters.

[¶ 26.] Therefore, I dissent.

[¶ 26.] Miller, C.J., joins this dissent.

      . SDCL 15-6-12(b) provides: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

      (5) Failure to state a claim upon which relief can be granted;

      . It is uncontroverted that (1) Sims and Ha-■gemann were co-employees, and (2) Sims and Hagemann were both acting in the scope of their employment at the time of the accident.

      . For example, in Phillips v. Union Pacific R.R. Co., 614 P.2d 153 (Utah 1980), a case involving a decedent's estate suing a co-employee for contribution arising out of a car accident, the Utah Supreme Court followed the majority rule against contribution. The court explained:
      There can be no contribution between the defendant railroad and Hammary [employer] and Parham [co-employee], because they cannot be joint tortfeasors. See 2A Larson on Workmen’s Comp. 295, Sec. 76.20 Contribution. Their respective liabilities aré grounded upon different social issues sought to be recognized by the Legislature when it adopted legislation dealing with Workmen’s Compensation. Our statute defines a joint tort-feasor as one of two or more persons jointly or severally liable in tort for the same injury. The liability of the employer is not tort liability at all, but only requires that the injured employee be in the course and scope of the employment. Further, to allow contribution would only permit indirectly that which cannot be done directly, i. e., effectively permitting recovery by one employee against a fellow employee. The exclusive remedy provisions of both the Utah and the North Carolina Workmen's Compensation Acts, along with the cases interpreting those provisions, make it clear that an employer’s only liability for injuries sustained by an employee is the extent of benefits under the Act. Additional exposure through the indirect method of a third-party action would be a blatant violation of expressed legislative policy.

        Phillips, 614 P.2d at 154 (emphasis added); see also Weller v. Brown, 266 Ga. 130, 464 S.E.2d 805 (1996).

      . It is important to note that the Uniform Contribution Among Tortfeasors Act was adopted after the codification of SDCL 62-3-2. Certainly, the Legislature was aware of SDCL 62-3-2 when it adopted the Act. This Court is mindful of the notion that this Court should be hesitant to interpret the effect of a legislative enactment as to void another enactment sub silentio. This Court has consistently stated that statutes are to be read in pari materia, ■ interpreting multiple statutes "consistently and harmoniously with each other.” Konenkamp, 523 N.W.2d at 97. If the Legislature desired to limit the application and effect of SDCL 62-3-2, it certainly knows how to do so.

      . County also cites to a few Washington state cases to also support its position that it should be able to go forward against an employer or employee despite having a statute similar to SDCL 62-3-2. The case of Clark v. Pacific Corp, 118 Wash.2d 167, 822 P.2d 162 (1991) allowed suit against an employer for contribution. The Clark case, however, was subsequently abrogated by state statute. Following the state legislature’s change of the statute, the court in Shelton v. Azar, Inc., 90 Wash.App. 923, 954 P.2d 352 (1998) recognized that a suit against an employer could not be maintained because the new statute expressly forbids such action. Therefore, the Clark case has little or no prudential value in the state of Washington, let alone South Dakota. It is also instructive to note that Illinois has only partially adopted the Uniform Contribution Among Tortfeasor Act. In Illinois, the Act includes an express provision for third party recovery against an employer. See Ill.St. ch 740, § 100/3.5. Minnesota has not adopted the Act. But see Minn.Ann.St. 604.01, subd. 1. As the Lambertson court states, "other jurisdictions must be read with caution on this issue because of different statutes and concepts of recovery.” 257 N.W.2d at 689. It is clear that South Dakota's statutory scheme for recovery is different from those cited by County. The dissent disregards our holding in Burmeister, and now attempts to interpret SDCL 15-8-11 to hold that negligence alone creates a joint tortfeasor. This interpretation not only contravenes the plain language of SDCL 15-8-11 requiring "common liability,” but also our holding in Burmeister.

      . In its brief, County concedes that Hagem-ann's estate could not sue Sims directly because the language of SDCL 62-3-2 bars such action. See Canal Insurance Co. v. Abraham, 1999 SD 90, 598 N.W.2d 512. The holding in Abraham contradicts the holdings espoused in the two cases supplied as persuasive authority by County.

      . The dissent cites no authority for the propositions that our "use” of "SDCL 62-3-2 to define the rights of a third party in a context in which it was never meant apply” and that its decision calls "for a commonsense interpretation of these separate, independent chapters.” The language employed by the Legislature in writing SDCL 62-3-2 is plain and unambiguous. Therefore, any interpretation is unnecessary, and we must simply "declare the meaning of the statute as clearly expressed.” VanGorp v. Sieff, 2001 SD 45, ¶ 12, 624 N.W.2d 712. As stated by Chief Justice Miller in his dissent in Baatz v. Arrow Bar, 426 N.W.2d 298, 309 (S.D.1988), this Court "should not speculate or second guess the legislature in its exercise of this constitutional prerogative.” This Court cannot supplant its own agenda for that of the Legislature. To reach the result desired by the dissent this Court would have to overrule Burmeister and rewrite SDCL 15-8-11 and 62-3-2. "It is not the task of this court to revise or amend statutes, or to 'liberally construe a statute to avoid a seemingly harsh result where such action would do violence to the plain meaning of the statute under construction.' " Moore v. Michelin Tire Co., 1999 SD 152, ¶ 21, 603 N.W.2d 513, 519. If the result appears to be harsh or unfair, the Legislature is the proper venue to amend the statutes, not the courts.

      . Even the Illinois court recognizes that 45 other jurisdictions follow the majority rule that an employer cannot be sued for contribution when there is a state statute which expressly forbids such action. See Kotecki, 166 Ill.Dec. 1, 585 N.E.2d at 1027.

      . County also urges this Court to contemplate public policy considerations, namely the equitable principle of not allowing Sims, a potential tortfeasor, protection against suit. Again, the legislature is best suited to make policy decisions.

      . Although this authority is not binding, we should not follow the majority opinion's attempt to limit the discourse without even considering how other courts have dealt with such a conceptually difficult issue.

      . The concurrence fails to appreciate the fact that this is not a typical indemnity claim. Because the maximum worker's compensation exposure has been paid, there will not be any recovery by County against either the employer or the negligent employee, but instead a jury would be allowed to factor in this outside negligence to calculate County’s negligence, if any. We are not using indemnity as a separate cause of action but an equitable means to accomplish a fair allocation. Therefore, the independent duty analysis is not only inapplicable but unfair as it permits a windfall.


author: ECKRICH, Circuit Judge.

text:
      2001 SD 108

    CITY OF SIOUX FALLS, a municipality chartered under the Constitution of the State of South Dakota, Plaintiff and Appellant, v. Douglas L. JOHNSON and Sherry D. Johnson, Defendants and Appellees.
    No. 21548.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2001.
    Decided Aug. 15, 2001.

      R. Shawn Tornow, Sioux Falls City Attorney’s Office, Sioux Falls, SD, Attorneys for plaintiff and appellant.
    Mark Y. Meierhenry of Danforth, Meier-henry & Meierhenry, Sioux Falls, SD, Attorneys for defendants and appellees.
   ECKRICH, Circuit Judge.

[¶ 1.] City of Sioux Falls (City) appealed an award of prejudgment interest, attorney’s fees and expert witness fees. We reverse and remand.

FACTS

[¶ 2.] This appeal arises from a protracted condemnation action. On September 27, 1995, City initiated an action to condemn property owned by Doug and Sherry Johnson (Johnsons). City needed Johnsons’ land for a public right-of-way and a storm water drainage project. The real property included a house, garage, barn, and 9.70 acres.

[¶ 3.] City, by resolution adopted August 7, 1995, decided to “expeditiously” proceed to acquire real estate by eminent domain proceedings. City commenced its suit pursuant to SDCL ch 21-35. City subsequently availed itself of the so-called “quick-take” procedures described in SDCL 31-19-23 et seq. On October 25, 1995, City deposited $423,000 with the clerk of courts pursuant to SDCL §§ 31-19-26 and 31-19-28. On November 3, 1995, Johnsons acquiesced to the quick-take proceeding by waiving a hearing to contest City’s necessity to take their property. See SDCL 31-19-10.1. On November 7, 1995, Johnsons received the funds deposited by City pursuant to SDCL 31-19-29 and by order of the trial court.

[¶ 4.] Johnsons remained in possession of the property. City obtained an order of possession on July 12,1996 that gave it the right to exclusive possession on and after August 12, 1996. City thereafter took exclusive possession of the property.

[¶ 5.] On September 20, 1996, City deposited an additional $124,955.98 with the clerk of courts to pay additional compensation due Johnsons, to be determined by jury verdict and judgment thereon or settlement of the matter. This deposit, unlike the prior deposit, made no reference to any statute. Johnsons received this deposit September 15, 1997 pursuant to SDCL 31-19-29. On January 31, 1997, City amended its condemnation petition, in accord with the provisions of SDCL 21-35-28, to add other defendants as record holders of interest.

[¶ 6.] The first trial, held August 15, 1997, resulted in a jury award of $1.2 million. This Court reversed and remanded for new trial, holding that the trial court abused its discretion in denying City’s motion for a new trial. Johnson I, 1999 SD 16 at ¶¶ 8-30, 588 N.W.2d at 908-11. On January 26, 2000, following retrial, the jury returned a verdict of $1.1 million. This sum was more than 20 percent above the City’s offer, thus entitling the John-sons to costs pursuant to SDCL 21-35-23. A partial judgment for $552,044.52 was entered February 2, 2000.

[¶ 7.] The trial court subsequently awarded:

a) Prejudgment interest at 10% from November 3, 1995 to January 28, 2000, totaling $256,493.02.
b) Expert witness fees of $4650.00 for appraiser Deane Davenport ($2,000.00 for trial; $2650.00 for initial report).
c) Attorney fees of $175,000.00 plus sales tax.

STANDARD OF REVIEW

[¶ 8.] The question regarding the proper rate of prejudgment interest involves reconciliation between statutes and as such, is reviewed under the de novo standard. Welsh v. Centerville Twp., 1999 SD 73, ¶ 7, 595 N.W.2d 622, 624. Awards of fees are reviewed under an abuse of discretion standard. Eccleston v. State Farm Mutual Auto. Ins. Co., 1998 SD 116, ¶ 20, 587 N.W.2d 580, 583; Boland v. City of Rapid City, 315 N.W.2d 496, 503 n. 4 (S.D.1982).

DECISION

[¶ 9.] The Fifth Amendment to the Federal Constitution and articles VI, § 13 and XVII, § 18 of the South Dakota Constitution prohibit the taking of private property for public use without paying just compensation. The question as to what is just compensation for private property taken for public use is a judicial, and not a legislative, question. Monongahela Navigation Co. v. United States, 148 U.S. 312, 327, 13 S.Ct. 622, 626, 37 L.Ed. 463, 468 (1893). Nevertheless, the legislature establishes the procedure to determine just compensation.

[¶ 10.] “Takings” cases are not exclusively condemnation cases. One should recognize that the term “condemnation” generically describes a variety of procedures by which a sovereign exercises its power of eminent domain or takes private property. Two such procedures established by the legislature are: 1) a municipality’s power to take by non-quick-take eminent domain proceedings in which the necessity to take and the value of the property taken are determined, SDCL ch 21-35; and 2) quick-take proceeding as applicable to municipalities described both in SDCL 21-35-9 and SDCL 31-19-23 et seq. These quick-take proceedings are not mutually exclusive. SDCL 31-19-40.

[¶ 11.] In non-quick-take condemnation cases, the municipality files a petition pursuant to the provisions of SDCL 21-35-2. No right to possession of the property is obtained by the condemning authority until it pays the full amount of condemnation judgment and costs. A City may dismiss the action after a just compensation verdict but before judgment is entered. City of Aberdeen v. Lutgen, 273 N.W.2d 183, 185 (S.D.1979).

[¶ 12.] “In quick-take cases, the condemning authority takes possession of the property prior to trial upon payment into court of its estimate of the value of the property taken. The condemnee may immediately withdraw the amount of the quick-take deposit and may also recover the amount of any deficiency where the value of the property is later determined at trial to be greater than the amount initially deposited by the condemnor.” King v. State Roads Comm’n of State Highway Admin., 298 Md. 80, 467 A.2d 1032, 1035 (1983). A municipality may utilize the quick-take provisions of SDCL 31-19-23 “any time before final judicial determination of the rights of the parties” even if the case is initially commenced as a non-quick-take action. This is in fact what City did and Johnsons agreed to.

[¶ 13.] Both parties acquiesced to a quick-take proceeding pursuant to SDCL 31-19-23. The question now becomes whether § SDCL 31-19-33 applies to the case. SDCL 31-19-33 requires a condem-nor to pay “interest at the Category A rate of interest as established in § 54-3-16 on the amount finally awarded as the value of the property as of the date of the court deposit.” Pursuant to this statute, interest accumulates from that date to the date of payment, but interest is not allowed on money deposited into the court. However appellees concede in their brief that the date of the taking was November 3, 1995.

[¶ 14.] SDCL 31-19-33 clearly applies to municipalities utilizing the quick-take procedure. SDCL 31-19-40 provides: “Nothing in 31-19-23 to 31-19-39, inclusive, may be construed as to impair any provisions of chapter 21-35 or §§ 31-19-1 to 31-19-22, inclusive, or §§ 9-12-1 and 9-27-1, but the proceedings herein provided for are additional and cumulative thereto.” Furthermore, SDCL 31-19-33 provides in pertinent part, “[a]fter the right to compensation has vested pursuant to 31-19-24, the condemnation action ... shall go to trial, and just compensation shall be ascertained ... and established by judgment. The judgment shall include interest .... ” (emphasis added).

[¶ 15.] City and Johnsons implicitly agreed to the application of SDCL 31-19-24. If SDCL 31-19-24 applies, then SDCL 31-19-33 applies as well. Interest should therefore be calculated at the 4.5 percent rate as set forth in SDCL 31-19-33, and 31-19-24. We reverse the award of prejudgment interest and remand to the trial court to calculate interest at the rate of 4.5 percent from November 3, 1995.

[¶ 16.] This decision does not overrule settled condemnation law in South Dakota regarding the award of prejudgment interest. As noted above, the legislature has prescribed various taking procedures. The quick-take procedure utilized herein is fundamentally different than a non-quick-take condemnation.

[¶ 17.] In City of Aberdeen, supra, City dismissed its suit after the verdict but before a judgment entered. The crucial fact was that City abandoned its action before any taking occurred, thus no just compensation or damages were due. In that instance it was obvious no pre-judgment interest can or should be awarded.

[¶ 18.] SDCL 21-35-22 contemplates the possibility that certain condemnation cases may be abandoned before judgment. Denial of prejudgment interest in such cases is not only fair, it makes sense. Technical title, especially when the proceeding may be dismissed, is not the tunc-tional equivalent of interference with use or possession. South Dakota has previously held in accord with this view. See Hurley, 81 S.D. 318, 134 N.W.2d 782 (inverse condemnation action brought by original proceeding to this Court under the provisions of what is now SDCL ch 21-32).

[¶ 19.] In Hurley, we held the date of taking or damaging, was the date of substantial interference with the easement right. In the present case, City clearly took exclusive possession, well beyond any technical vesting of title, prior to judgment. They commenced surveying and grading, destroying the home and outbuildings. City had no ability to abandon the proceeding as its actions were irrevocable and irretrievable. The statutory scheme requires interest at 4.5 percent. Interest should therefore be awarded from November 3, 1995 and calculated pursuant to SDCL 31-19-33.

ATTORNEY FEES

[¶ 20.] The Johnson I jury awarded $1.2 million. There, the trial court made a finding that the issues involved were not difficult or complex and awarded $130,000 in attorney fees. The Johnson II jury awarded $1.1 million. The trial court made a finding that the issues involved were not routine and took greater skill and expertise and awarded $175,000 of the $222,600 requested by Johnsons. There is no logical explanation; the issues and parties remain the same. Discovery was largely completed prior to Johnson I. Our opinion reversing that case provided parameters for all to follow.

[¶ 21.] In this ease, Johnsons base their attorney’s fee claim upon a contingent fee. “‘[W]hile such contingent fee arrangements may be perfectly valid and proper as between an attorney and his client, it does not necessarily follow that such fee is a reasonable fee to be taxed against the party taking private property for a public use, as permitted under [SDCL 21-35-23].’ ” City of Sioux Falls v. Kelley, 513 N.W.2d 97, 111 (S.D.1994) (quoting City of Bismarck v. Thom, 261 N.W.2d 640, 643 (N.D.1977)).

[¶ 22.] The standards to decide reasonable attorney fees are well settled. The interplay between contingent fee agreement and the other applicable standards is set forth in Kelley, supra. After reviewing the record, we find ourselves unable to conduct a meaningful appellate review. The case is therefore remanded to the trial court to determine reasonable attorney fees.

EXPERT FEES

[¶ 23.] Appraiser Davenport testified at the first trial but did not do so at the second trial. Johnsons’ affidavit supporting Davenport’s fees for Johnson II lists $2000 of his $4650 fee as attributable to “Trial.” The request in Johnson II is identical to the request made in Johnson I. It is difficult to justify the $2000 as attributable to “Trial” in Johnson II when Davenport did not testify. The attorney’s affidavit in support of the expert fees is sketchy and conclusory. Nevertheless, the trial court had an opportunity to hear firsthand Mr. Davenport’s qualifications and assess his work product. We cannot say, therefore, the $2650 awarded for Mr. Davenport’s initial report was an abuse of discretion.

[¶ 24.] Johnsons are entitled to expert fees. That Davenport did not testify for Johnsons is not dispositive. “It is settled law in this state that in condemnation actions an appraiser for the other party may be called upon to testify.” Rapid City v. Baron, 88 S.D. 693, 227 N.W.2d 617, 619 (1975). SDCL 21-35-23 does not require an expert witness to testify.

[¶ 25.] Davenport’s work product was utilized at both trials. Whether his services, attributed to “Trial,” were necessarily incurred for bringing this matter to the second trial has not been adequately considered. On its face, $2000 of Davenport’s fees are attributable to “Trial.” If those fees were incurred during the first trial, then they are not reasonable fees to be paid as a result of Johnson II unless they should be awarded in the interest of justice. SDCL 15-17-56. The issue is remanded to the trial court to determine whether the $2000 assigned to “Trial” was necessarily incurred in the second Johnson trial or should be awarded in the interest of justice.

[¶ 26.] Johnsons raise an issue for the first time on appeal regarding an alternate method for calculating prejudgment interest. They failed to file a notice of review and such failure waives our consideration of these issues. Zoss v. United Building Centers, Inc., 1997 SD 93, ¶ 20, 566 N.W.2d 840, 846.

APPELLATE ATTORNEY FEES

[¶27.] Johnsons filed a separate motion for $28,656 plus tax for appellate attorney fees. Appellate attorney fees may be granted “in actions where such fees may be allowable[.]” SDCL 15-26A-87.3. Johnson claims appellate attorney fees are allowable pursuant to SDCL 21-35-23. This statute clearly contemplates that attorney fees are awarded at the trial level for trial. The motion for appellate attorney fees is denied.

[¶ 28.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 29.] ECKRICH, Circuit Judge, for SABERS, Justice, disqualified.

      . For a more complete description of the facts see City of Sioux Falls v. Johnson, 1999 SD 16, 588 N.W.2d 904 (hereinafter referred to as Johnson I).

      . Defendant's expert appraiser, Deane Davenport was listed as a defense witness for trial. Davenport testified in Johnson I. He did not testify in the second Johnson trial on remand from this Court, but City introduced various aspects of his opinion by examination of another appraiser.

      . The Fifth Amendment to the United States Constitution provides, in pertinent part, "nor shall private property be taken for public- use without just compensation.” Article VI, § 13 of the South Dakota Constitution provides that: "[p]rivate property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the Legislature[.]" Article XVII, § 18 of the state constitution provides that:
      [mjunicipal and other corporations and individuals invested with the privilege of taking private properly for public use shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction. The Legislature is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporation or individuals made by viewers or otherwise; and the amount of such damages in all cases of appeal shall, on the demand of either parly, be determined by a jury as in other civil cases.

      . "It seems to be of no consequence as to the form of action brought, whether it be ejectment, injunction or damages, the courts treat them as being actions for compensation under the constitution.” Hurley v. State, 81 S.D. 318, 134 N.W.2d 782, 783 (1965).

      . As applied to the facts of this case, the term quick-take is a misnomer. There was no ''quick” in this "take.” In Johnson I, supra, at footnote 1 we stated that this proceeding was not a quick-take. Procedurally, this action was a quick-take as City obtained exclusive possession prior to judgment.

      . It is apparent that both sides wish to select only those portions of SDCL ch 21-35 and/or ch 31-19 that advance their respective view of the case. One has only to apply the specific language of SDCL 31-19-28 to the conditions under which the two deposits were made and received to determine that the parties have by ■their own acts implicitly agreed to the entire statutory quick-take scheme found in SDCL 31-19-23 et seq.

      . The statutes conflict regarding the date from which to calculate interest. SDCL 31-19-33 provides interest shall be calculated from the date of deposit. SDCL 31-19-24 provides the right to just compensation vests as of the date that the (necessity) hearing is waived. Both parties have argued that interest, if due at all, accrues no earlier than November 3, 1995. The legislature has determined that interest accrues from the date of the court deposit, which is merely the technical taking contemplated by the deposit and occurs before an actual taking which is substantial interference with the property. The legislature likely did not envision a quick take procedure that takes nearly six years. Nevertheless, City could have chosen a non-quick-take condemnation; it did not. Just compensation is fair compensation which, depending on the circumstances of the particular action chosen, may or may not include interest. Just compensation is not formulaic, nor does the Fifth Amendment include any standard of fairness by which the measure of just compensation is to be determined. United States v. Cors, 337 U.S. 325, 332, 69 S.Ct. 1086, 1090, 93 L.Ed. 1392, 1398-99 (1949).

      . City of Aberdeen, 273 N.W.2d 183, reaffirmed the principle enunciated in Fairmont and V. Ry. Co. v. Bethke, 37 S.D. 446, 159 N.W. 56 (1916) that "an eminent domain proceeding may be discontinued at anytime before the rights of the parties have become reciprocally vested. The condemnation proceedings merely fix a price or value, and a verdict does not vest title in the condemnor. Therefore, a condemnation proceeding may be dismissed by the condemnor after the verdict is rendered but prior to entry of judgment upon a verdict.” City of Aberdeen, 273 N.W.2d at 184-85.

      . Hurley v. State (Hurley II), 82 S.D. 156, 143 N.W.2d 722 (1966) subsequently affirmed an award of prejudgment interest at the then-existing general interest rate (6 percent) from the date the referee determined the plaintiff's property had been substantially interfered with, i.e., taken. Id. at 727.