author: KAPSNER, Justice. SANDSTROM, Justice,

text:
    2008 ND 88
    James TEIGEN, Deb Lundgren, Greg Svenningsen, Farmer’s Educational and Co-operative Union of America, North Dakota Division, d/b/a North Dakota Farmers Union, and Dakota Resource Council, Plaintiffs and Appellants and Casey Wells, Plaintiff v. STATE of North Dakota, Defendant and Appellee.
    No. 20070134.
    Supreme Court of North Dakota.
    May 15, 2008.

      Sarah Vogel (argued) and Beth Baums-tark (on brief), Sarah Vogel Law Firm, P.C., Bismarck, N.D., for plaintiffs and appellants.
    Charles M. Carvell (argued), Assistant Attorney General and Dean J. Haas (on brief), Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] James Teigen, Deb Lundgren, Greg Svenningsen, the North Dakota Farmers Union, and the Dakota Resource Council (collectively “plaintiff's”) appeal from a summary judgment dismissing their declaratory judgment action. Plaintiffs challenge the constitutionality of language in N.D.C.C. §§ 4-28-07(4) and 4-28-07.1(4) requiring the North Dakota State Wheat Commission to expend at least two mills of a wheat tax for “contract[s] for activities related to domestic wheat policy issues, wheat production, promotion, and sales” and providing “[t]he contracts may be with no more than two trade associations that are incorporated in [North Dakota] and which have as their primary purpose the representation of wheat producers.” The plaintiffs claim the statutes effectively require the WTieat Commission to contract with two specific entities, the North Dakota Grain Growers Association and the Durum Growers Association of the United States, and violate state constitutional provisions prohibiting special laws, gifts, and special privileges and immunities. We hold the statutes do not violate the state constitutional provisions, and we affirm.

I

[¶ 2] The plaintiffs sued the State to declare the underscored “trade association clause” language of N.D.C.C. §§ 4-28-07(4) (effective from July 1, 2005, through June 30, 2009) and 4-28-07.1(4) (effective after June 30, 2009) unconstitutional as a special law, as a law granting special privileges and immunities, and as a law making a gift:

The [wheat] commission shall expend an amount at least equal to that raised by two mills of the levy provided for in this section to contract for activities related to domestic wheat policy issues, wheat production, promotion, and sales. The contracts may he with no more than two trade associations that are incorporated in this state and which have as their primary purpose the representation of wheat producers. The contracts must require that any trade association receiving money under this section pay from that money all dues required as a condition of the trade association’s membership in any national trade association. The contracts also must prohibit any trade association receiving money under this section from eliminating any dues required as a condition of membership in that trade association or from reducing such dues below the amount required for membership as of January 1, 2005.

The plaintiffs alleged the trade association clause effectively required the Wheat Commission to contract with only two entities, the North Dakota Grain Growers Association and the Durum Growers Association of the United States, and prohibited the Wheat Commission from contracting with any other potential service providers.

[¶ 3] The district court decided the individual plaintiffs, as taxpayers, had standing to challenge the trade association clause, but the Dakota Resource Council and the North Dakota Farmers Union lacked standing to challenge the clause because they did not pay the wheat tax, they had never attempted to contract with the Wheat Commission, there was no indication they would qualify for, or receive, a contract with the Wheat Commission, and they had not suffered a threatened or actual injury. The court subsequently granted the State’s motion for summary judgment dismissing the individual plaintiffs’ claims, concluding the trade association clause was not unconstitutional as a special law, as a law granting special privileges and immunities, and as a law making a gift.

II

[¶4] The plaintiffs argue the North Dakota Farmers Union and the Dakota Resource Council have organizational standing to challenge the constitutionality of the trade association clause, because those entities have an interest in the action in a representative capacity. The plaintiffs also argue the Farmers Union and the Dakota Resource Council have direct standing to challenge the constitutionality of the trade association clause.

[¶ 5] We need not decide if the Farmers Union and the Dakota Resource Council have standing to challenge the constitutionality of the trade association clause, however, because it is sufficient to confer standing if at least one of the plaintiffs have standing to challenge the constitutionality of the clause, and here, the State does not dispute that the individual plaintiffs have standing. See International Printing Pressmen & Assistants Union v. Meier, 115 N.W.2d 18, 20 (N.D.1962). See also Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Any opinion by this Court regarding standing is not necessary for the disposition of the individual plaintiffs’ constitutional challenges, and we therefore do not address the standing issue. E.g. State v. Hansen, 2006 ND 139, ¶ 7, 717 N.W.2d 541 (stating Supreme Court does not render advisory opinions).

m

[¶ 6] The plaintiffs argue the trade as-. sociation clause violates state constitutional provisions prohibiting special laws, special privileges and immunities, and gifts.

[¶ 7] Whether a statute is unconstitutional is a question of law, which is fully reviewable on appeal. Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91, 96 (N.D.1990). “ ‘All regularly enacted statutes carry a strong presumption of constitutionality, which is conclusive unless the party challenging the statute clearly demonstrates that it contravenes the state or federal constitution.’ ” In re P.F., 2008 ND 37, ¶ 7, 744 N.W.2d 724 (quoting Olson v. Bismarck Parks and Recreation Dist., 2002 ND 61, ¶ 11, 642 N.W.2d 864). “ ‘The justice, wisdom, necessity, utility and expediency of legislation are questions for legislative, and not for judicial determination.’ ” Manikowske v. North Dakota Workmen’s Comp. Bureau, 338 N.W.2d 823, 825 (N.D.1983) (quoting Asbury Hosp. v. Cass County, 72 N.D. 359, 7 N.W.2d 438, 442 Syllabus ¶ 11 (1943)). This Court exercises the power to declare legislation unconstitutional with great restraint. MCI Telecomms. Corp. v. Heitkamp, 523 N.W.2d 548, 552 (N.D.1994). Under N.D. Const. art. VI, § 4, this Court “shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide.”

A

[¶ 8] The special law provision of N.D. Const, art. IV, § 13, prohibits the legislature from enacting local or special laws and provides, in relevant part:

The legislative assembly shall enact all laws necessary to carry into effect the provisions of this constitution. Except as otherwise provided in this constitution, no local or special laws may be enacted, nor may the legislative assembly indirectly enact special or local laws by the partial repeal of a general law but laws repealing local or special laws may be enacted.

[¶ 9] The plaintiffs claim the effect of the trade association clause is to create a special law. They argue the district court failed to apply a searching analysis of the effect of the trade association clause under this Court’s special law jurisprudence and incorrectly decided the trade association clause was not a special law because it applied to all trade associations incorporated in North Dakota. They contend that although the trade association clause is written in neutral language, the language constitutes artful drafting masking what is, in fact, a special law. They assert the Wheat Commission’s administrative construction of the trade association clause establishes it is a special law, because that construction authorizes contracts with only the Grain Growers Association and the Durum Growers Association. They also argue the legislative history for the trade association clause establishes the wheat checkoff was intended to go to only those two entities. They further claim the trade association clause does not require competitive bidding for the contracts and is an implied repeal of North Dakota’s state purchasing practices’ law in N.D.C.C. ch. 54-44.4, which also establishes the clause is a special law.

[¶ 10] The State responds the trade association clause is not ambiguous and does not create a special class; rather, the statute directs the WTieat Commission to contract with two trade organizations that have as their primary purpose the representation of wheat producers. The State argues the comments of individual legislators and others during legislative deliberations do not establish legislative intent and the best evidence of the legislature’s intent is the statutory language itself, which does not explicitly apply to the Grain Growers Association and the Durum Growers Association. The State also argues the statute does not repeal the state purchasing practices’ law and does not violate the special laws provision because the legislature may make reasonable classifications.

[¶ 11] One court has cogently explained “the proscription against special laws was ‘adopted for a very simple and understandable purpose — to put an end to the flood of privileged legislation for particular localities and for private purposes which was common in’ ” the latter part of the nineteenth century. Harrisburg Sch. Dist. v. Hickok, 563 Pa. 391, 761 A.2d 1132, 1135-36 (2000) (quoting Haverford Twp. v. Siegle, 346 Pa. 1, 28 A.2d 786, 788 (1942)). See 2 Norman J. Singer, Sutherland Statutory Construction § 40:1 (6th ed. 2001).

[¶ 12] In MCI, 523 N.W.2d at 552, we discussed the difference between general and special laws:

“ ‘A statute relating to persons or things as a class is a general law; one relating to particular persons or things of a class is special.’ ” Vermont Loan & Trust Co. v. Whithed, 2 N.D. 82, 92-3, 49 N.W. 318, 320 (1891) (quoting Sutherland’s Statutory Construction ¶ 121). Special laws are made for individual cases of less than a class, due to peculiar conditions and circumstances. Id. We have recently said that the special laws language of our state constitution constrains laws relating “ ‘only to particular persons or things of a class, as distinguished from a “general law,” which applies to all things or persons of a class.’ ” Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91, 99 (N.D.1990) quoting State v. First State Bank, 52 N.D. 231, 202 N.W. 391, 399 (1924). A statute is not special, but general, if “ ‘[i]t operates equally upon all persons and things within the scope of the statute. It operates alike on all persons and property similarly situated.... In other words, it operates alike in all cases where the facts are substantially the same.’ ” Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733, 739 (N.D.1988), quoting State v. First State Bank, 52 N.D. 231, 202 N.W. 391, 399 (1924).

In MCI, 523 N.W.2d at 552-53, we said a statute about local telephone exchange services, on its face, appeared to be a general law applicable to all companies “providing local exchange service,” which were similarly situated to each other but not similarly situated with long distance companies that did not provide local exchange service. See also Bouchard v. Johnson, 555 N.W.2d 81, 88 (N.D.1996) (skiing responsibility act operates alike to all similarly situated persons operating a skiing facility within the state, which is permissible class; if statute applied only to named ski resort, statute would treat member of class differently and would be unconstitutional special law). We further concluded the classification regarding local telephone exchange services was reasonable and did not violate the special laws provision of our state constitution. MCI, at 553-54.

[¶ 13] In Best Products, 461 N.W.2d at 99, a case involving a special law challenge to a Sunday closing law, we said the standard of review of a classification under our special laws provision is reasonableness, and a statutory classification is reasonable, if it “ ‘is natural, not arbitrary, and standing upon some reason having regard to the character of the legislation of which it is a feature.’ ” Id. (quoting Miller v. Norton, 22 N.D. 196, 132 N.W. 1080, 1091 (1911)). We further explained a classification is “reasonable if ‘[i]t bears alike upon all persons and things upon which it operates and it contains no provision that will exclude or impede this uniform operation upon all citizens, subjects and places within the state provided they are brought within the relations and circumstances specified in the statute.’ ” Best Products, at 99 (quoting Northwestern Bell Tel. Co. v. Wentz, 103 NW.2d 245, 256 (N.D.1960)). We concluded the Sunday closing law implemented a legislative purpose of rest and recreation and regulated activity in a manner to achieve a universally accepted legitimate governmental purpose that did not violate the special laws provision of our state constitution. Best Products, at 99.

[¶ 14] In assessing whether a challenged law violated the special laws provision of our state constitution, this Court’s early decisions recognized the effect of the challenged law was an appropriate consideration. McDonald v. Hanson, 37 N.D. 324, 338-40, 164 N.W. 8, 12-13 (1917); Angell v. Cass County, 11 N.D. 265, 270, 91 N.W. 72, 73 (1902); Edmonds v. Herbrandson, 2 N.D. 270, 279, 50 N.W. 970, 973 (1891). See 2 Sutherland Statutory Construction, at § 40:5 (stating characterization of statute depends on its substance and not its form; statute may be special in fact though general in form).

[IT 15] In Edmonds, 2 N.D. 270, 50 N.W. at 970 Syllabus ¶ 1, this Court held a statute regulating procedures for relocating county seats violated the prohibition on special laws, because it arbitrarily classified counties by putting into one class all counties having a courthouse and jail worth more than $35,000 when the statute was enacted and forever putting other counties into another class. In Edmonds, the class was closed on the date the statute was enacted because the statute forever classified counties based on value of the courthouse and jail on that date, and this Court said if “the legislature [had] not closed the door against accessions to the class of counties having a court-house and jail exceeding $35,000 in value, the classification would have been proper[, b]ut an arbitrary time [was] fixed, after which no county coming within the same conditions which characterize the class can gain admittance to such class.” 2 N.D. at 275, 50 N.W. at 972. See Best Products, 461 N.W.2d at 99 (citing Edmonds as case involving classification based on time and stating the “reason for the classification, time, bore no relationship to the statutory purpose, preventing waste”). In Ed-monds, this Court explained the class became closed when the statute was enacted and the closed class was arbitrary under the special law provision of the constitution:

But, when the act in express terms prevents any further accession to the class, it is apparent that the classification stands, not upon a reasonable ground based on difference in population, but is purely arbitrary. The act might as well have expressly named the particular objects included, to the exclusion of all others. So far as this particular provision of the constitution against special legislation is concerned, it is immaterial that the act is general in form. The question is always as to its effect. Any other doctrine would render nugatory the prohibition of the fundamental law against special legislation. Under the guise of statutes general in terms, special legislation, in effect, could be adopted with no inconvenience, and the evil to be extirpated would flourish unchecked. Statutes general in terms have been adjudged void as special legislation, because they could operate only upon a part of a class.

2 N.D. at 278-79, 50 N.W. at 973.

[¶ 16] In Angell, 11 N.D. at 269-72, 91 N.W. at 73-74, this Court applied established rules of construction to a 1901 statute relating to the collection of unpaid real estate taxes, which authorized counties within a class to institute judicial proceedings to collect unpaid taxes upon certain real estate and precluded other counties from instituting judicial proceedings to collect unpaid taxes for the same years. This Court said the express terms of the statute had the appearance and characteristic of a general law. Id. at 269, 91 N.W. at 72-73. This Court stated, however, the statute “masquerade[d] as a general law,” and concluded the classification was arbitrary and violated the proscription against special laws because it was “in fact and in its practical operation a special law for the collection of taxes” on certain real estate in certain counties only. 11 N.D. at 269-72, 91 N.W. at 73-74. This Court explained the challenged statute effectively created a closed class because the right of any county to use the tax collection remedies provided by the challenged statute depended on whether the county had failed to collect unpaid taxes under a prior 1897 law. Id. at 270-72, 91 N.W. at 73-74. If a county was in the closed class of commonly known counties that had not used the 1897 law to collect unpaid taxes, the 1901 law gave those counties “especial privileges” in the form of judicial remedies to also collect taxes for additional years when taxes could not have been collected under the 1897 law. Id. Counties that had used the 1897 law, however, could not use the judicial remedies of the 1901 law to collect taxes for those same additional years. Id. Although the challenged 1901 statute was written in general terms, it effectively gave counties that had failed to proceed under the 1897 law greater remedies to collect unpaid taxes than the counties that had used the 1897 law to collect unpaid taxes. Id. The class was closed because it was based on a past occurrence — whether or not the county had failed to use the 1897 statute to collect unpaid taxes.

[¶ 17] In McDonald, 37 N.D. at 338-40, 164 N.W. at 12-13, this Court construed a statute providing two methods of organizing new school districts from existing school districts and held the statute was a general law, operating uniformly throughout the State upon all school districts under the same circumstances and conditions. The classifications in the challenged statute were based upon minimum qualifications for admission into the class and did not preclude future admission to the class. Id. at 336-40, 164 N.W. at 11-13. This Court upheld the challenged statute, but recognized a law “ ‘general in its form, but special in its operation, violates a constitutional inhibition of special legislation as much as if special in form.’ ” Id. at 338-39, 164 N.W. at 12. This Court said, however, the challenged statute, as construed in that case, was general in its form and also general in its operation throughout the state to every school district similarly situated, and this Court held the statutory classification was reasonable and not arbitrary. Id. at 338-40, 164 N.W. at 12-13.

[¶ 18] The common inquiry in our special law cases is whether statutory classifications are written in general terms, rather than applying to particular persons or things, and if written in general terms, whether the classification “closets] the door against accessions to the class.” Edmonds, 2 N.D. at 275, 50 N.W. at 972. See 2 Sutherland Statutory Construction, at § 40:6 (stating most authorities agree it is not necessary that every entity be included in the coverage of an act, but none can be excluded so as to preclude qualification for legislative classification; classification must be prospective and permit future entry into class when qualifications met). Under our special law jurisprudence, the standard of review of a classification is reasonableness and a classification will be upheld if it “ ‘is natural, not arbitrary, and standing upon some reason having regard to the character of the legislation of which it is a feature.’ ” Best Products, 461 N.W.2d at 99 (quoting Miller, 22 N.D. at 222, 132 N.W. at 1091). Our cases recognize the analysis of a special law challenge necessarily involves the interpretation of the challenged statute. See Bouchard, 555 N.W.2d at 83-88; McDonald, 37 N.D. at 338-40, 164 N.W. at 12-13; Angell, 11 N.D. at 269-72, 91 N.W. at 73-74.

[¶ 19] Statutory interpretation is a question of law, fully reviewable on appeal. In re P.F., 2008 ND 37, ¶ 11, 744 N.W.2d 724. The primary purpose of statutory interpretation is to determine legislative intent. Estate of Elken, 2007 ND 107, ¶ 7, 735 N.W.2d 842. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous “the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. If the language of a statute is ambiguous, however, a court may resort to extrinsic aids, including legislative history, to interpret the statute. Stutsman County v. State Historical Soc’y, 371 N.W.2d 321, 325 (N.D.1985). It is well established that we construe statutes to avoid constitutional infirmities. City of Belfield v. Kilkenny, 2007 ND 44, ¶ 8, 729 N.W.2d 120; In re G.R.H., 2006 ND 56, ¶ 15, 711 N.W.2d 587; Kjolsrud v. MKB Mgmt. Corp., 2003 ND 144, ¶ 7, 669 N.W.2d 82.

[¶ 20] The plain language of the trade association clause does not specially refer to the Grain Growers Association or to the Durum Growers Association; rather, the statute is phrased in general terms that the “contracts may be with no more than two trade associations that are incorporated in this state and which have as their primary purpose the representation of wheat producers.” The plain language of the trade association clause does not contemplate a closed class and does not preclude other organizations from further accession into the class if they meet those qualifications. See Souris River Tel. Mut. Aid Corp. v. State, 162 N.W.2d 685, 691 (N.D.1968) (statutory classification not invalid because it involves one person or corporation if classification is broad enough to apply to others if they exist). The plain language of the trade association clause is similar to the situation in Bouchard, 555 N.W.2d at 88, in which we construed a statute for operating a skiing facility and said that statute operated alike for all similarly situated persons and did not apply only to one named ski resort, and to MCI, 523 N.W.2d at 552-53, in which we said a statute, on its face, appeared to be a general statute applying to all companies providing local exchange service. The trade association clause operates alike for all similarly situated entities that satisfy the statutory requirements for a contract. The plaintiffs’ reliance on International Printing Pressmen, 115 N.W.2d at 20, is misplaced, because the statute at issue in that case limited the award of public contracts to an entity with employees from a specifically named union. The trade association clause does not explicitly refer to a specific entity, and the statutory qualifications do not preclude further accession into the class if those qualification are met.

[¶ 21] Some statements in the legislative history for the trade association clause and some statements in minutes from meetings of the Wheat Commission may suggest the clause requires the contracts to be awarded to the Grain Growers Association and to the Durum Growers Association. However, those broad statements are contrary to the plain language of the statute. Although an administrative construction of a statute is ordinarily entitled to some deference if that interpretation does not contradict clear and unambiguous statutory language, the interpretation of a statute is a question of law that is fully reviewable by a court. Victor v. Workforce. Safety & Ins., 2006 ND 68, ¶ 12, 711 N.W.2d 188. We conclude the language of the trade association clause is clear and unambiguous, and we need not resort to legislative history or to administrative interpretation to construe the plain language of that statute.

[¶ 22] Contrary to the plaintiffs’ claim about an implied repeal of the law for state purchasing practices, N.D.C.C. ch. 54-44.4, there is no language in the trade association clause or N.D.C.C. ch. 54-44.4 that exempts the competitive bidding requirements from the procurement of contractual services by the Wheat Commission. We construe statutes to harmonize them. N.D.C.C. § 1-02-07; Lawrence v. North Dakota Workers Comp. Bureau, 2000 ND 60, ¶ 19, 608 N.W.2d 254. Implied repeals of statutes are not favored, and to overcome a presumption against an implied repeal, a conflict between two statutes must be irreconcilable. Walsvik v. Brandel, 298 N.W.2d 375, 377 (N.D.1980). The plaintiffs have cited no provisions establishing an irreconcilable conflict between the trade association clause and N.D.C.C. ch. 54-44.4, or excluding these contracts from the state purchasing practices’ law, and we have found none. See N.D.C.C. §§ 54-44.4-02.1; 54-44.4-05; 54-44.4-12. Although the applicability of the competitive bidding process is not necessary to sustain the constitutionality of the trade association clause under the special law provision as long as the class is not closed, the competitive bidding process is the mechanism for awarding contracts under the clause. During oral argument to this Court, the State acknowledged the applicability of the state purchasing practices’ process if more than two qualified trade associations sought a contract from the Wheat Commission for activities related to domestic wheat policy issues, wheat production, promotion, and sales. This record does not show that more than two trade associations have sought such a contract, and issues about potential violations of the competitive bidding process are not before us.

[¶ 23] On this record, we conclude the trade association clause is a general law that operates alike on all entities similarly situated. We further conclude the general classification for trade associations incorporated in North Dakota and which have as their primary purpose the representation of wheat producers is reasonable in view of the contractual services sought by the Wheat Commission. In our view, the required qualifications for procurement of a contract do not impose arbitrary conditions on entities seeking contracts related to domestic wheat policy issues, wheat production, promotion, and sales. We therefore hold the trade association clause does not violate N.D. Const. art. IV, § 13.

B

[¶ 24] The plaintiffs argue the trade association clause is unconstitutional as a law granting special privileges and immunities under N.D. Const, art. I, § 21, which provides:

No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens.

[¶ 25] Article 1, § 21, N.D. Const., the privileges and immunities clause, is this State’s equal protection clause. Bouchard, 555 N.W.2d at 87. Under equal protection analysis, the standard of review depends on the type of classification. Id. When a classification involves a fundamental interest or is inherently suspect, we analyze the classification under strict scrutiny. Id. When there is an important substantive right involved in the classification, we apply an intermediate standard of review. Id. If there is no fundamental or important substantive interest involved, we analyze the classification under a rational basis standard and sustain the legislation unless it is arbitrary and bears no rational relationship to a legitimate governmental interest. Id. The rational basis standard of review is generally applied when statutory classifications involve economic and social matters and do not deprive a class of plaintiffs from access to the courts. Id.

[¶ 26] The plaintiffs do not dispute the trade association clause involves social and economic legislation regarding the wheat industry, and we conclude the rational basis standard is the appropriate level of scrutiny for the plaintiffs’ challenge. Under the rational basis standard, a legislative classification will be sustained unless it is arbitrary and bears no rational relationship to a legitimate governmental interest. Bouchard, 555 N.W.2d at 87; Best Products, 461 N.W.2d at 96.

[¶ 27] We conclude it is not unreasonable for the legislature to classify trade associations incorporated in this state and having as their primary purpose the representation of wheat producers from other groups for purposes of contracting for activities related to domestic wheat policy issues, wheat production, promotion and sales. We conclude the legislature’s classification of trade associations bears a rational relationship to a legitimate government interest of promoting activities related to domestic wheat policy issues, wheat production, promotion and sales. We therefore hold the trade association clause satisfies the rational basis standard of scrutiny, and the clause does not violate N.D. Const. art. I, § 21.

C

[¶ 28] The plaintiffs argue the trade association clause is unconstitutional because it constitutes a gift in violation of N.D. Const. art. X, § 18, which provides:

The state, any county or city may make internal improvements and may engage in any industry, enterprise or business, not prohibited by article XX of the constitution, but neither the state nor any political subdivision thereof shall otherwise loan or give its credit or make donations to or in aid of any individual, association or corporation except for reasonable support of the poor, nor subscribe to or become the owner of capital stock in any association or corporation.

[¶ 29] The plaintiffs argue the trade association clause constitutes a gift to the Grain Growers Association and the Durum Growers Association, because that statute eliminates competitive bidding and the money paid to the two entities- is unrelated to the services provided. Relying on Herr v. Rudolf, 75 N.D. 91, 25 N.W.2d 916 (1947) and Solberg v. State Treasurer, 78 N.D. 806, 53 N.W.2d 49 (1952), the plaintiffs claim there is no correlation between the value received by the State and the funds paid by the State for the services, in part, because the amount of the final payment from collection of the wheat tax is not known when the contract is executed.

[¶ 30] Under our interpretation of the trade association clause, however, the competitive bidding process is applicable to contracts awarded under the statute. This record does not reflect that more than two trade associations have sought a contract and issues about potential violations of the competitive bidding process are not before us. We agree with the State that this statute does not contemplate a gift; rather it contemplates a contract for services and does not preclude competitive bidding with entities that meet the qualifications imposed by the statute. Herr and Solberg involved statutory provisions for specifically identified classes of individuals to buy back foreclosed land from the State, Herr, 75 N.D. at 95-96, 25 N.W.2d at 918-19, or to buy back mineral interests from the State, Solberg, 78 N.D. at 809-10, 53 N.W.2d at 50-51 In both Herr, 75 N.D. at 102-03, 25 N.W.2d at 922, and Solberg, 78 N.D. at 813-17, 53 N.W.2d at 53-55, this Court concluded the respective statutes violated the gift provision of the constitution. However, neither of those cases involved contracts for services, and we conclude they do not control the resolution of this issue. In the context of a contract, consideration means any benefit conferred or detriment suffered. Harrington v. Harrington, 365 N.W.2d 552, 555 (N.D.1985); Gulden v. Sloan, 311 N.W.2d 568, 572 (N.D.1981). If consideration exists, courts generally will not inquire into the adequacy or value of the consideration. Harrington, at 555; Gulden, at 572.

[¶ 31] The record before us indicates the Wheat Commission regularly enters into written contracts with entities qualified under the statute. Those written contracts specifically identify the services to be performed by the entity, restrict the use of funds received from the Wheat Commission to the performance of those services, and impose record-keeping and reporting I'equirements on the use of the funds. We also note the competitive bidding process helps ensure the State receives a substantial benefit for its contracts and the successful bidders incur a detriment. See Adams County Record v. Greater North Dakota Ass’n, 1997 ND 116, ¶ 10, 564 N.W.2d 304 (stating a quid pro quo exists in contract when State receives benefits it seeks and organization is entitled to promised monetary consideration). Although the amount of the payments under the contracts is uncertain because the statute is based on a per bushel mill assessment, there is a rational relationship between larger payments attributable to an increased number of bushels of wheat and the activities and services provided because of that increased quantity of wheat. On this record, we conclude the trade association clause does not violate N.D. Const. art. X, § 18. However, if that amount of money becomes too disproportionate to the services required under the contract, we are not precluded from revisiting this issue. See Bismarck Pub. Sch. Dist. v. State, 511 N.W.2d 247, 276 (N.D.1994) (VandeWalle, C.J., dissenting in part).

IV

[¶ 32] We affirm the judgment.

[¶ 33] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.

SANDSTROM, Justice,

concurring specially.

[¶ 34] To the extent that dicta in Part III C of the majority opinion could be read as suggesting that any consideration, no matter how minimal, would be sufficient to defeat the North Dakota Constitution, art. X, § 18, prohibition on gifts, I disagree.

[¶ 35] I respectfully reject the idea that private-contract consideration is the appropriate standard for determining whether or not there has been a gift of public funds. The standard contractual consideration between private parties for a valid contract reflects that it is only persons who are sought to be bound. The North Dakota constitutional limitation on gifts is the action of the people in general to restrain the government actors from gifting public funds or property.

[¶ 36] Under an any-consideration-no-matter-how-minimal standard, a public entity could agree to pay $40,000 for a standard wooden pencil and it would not be a gift. Such cannot be the law. See Adams County Record v. Greater North Dakota Association, 529 N.W.2d 830, 839 (N.D.1995) (VandeWalle, C.J., concurring in the result).

[¶ 37] Dale V. Sandstrom


source: Caselaw Access Project

author: CROTHERS, Justice.

license: Public Domain

text:
    2008 ND 100
    In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF D.M.O. E.O., Petitioner and Appellant v. M.O. and J.O., Guardians, Respondents and Appellees and State Bank and Trust, Conservator, and E.O., as personal representative of the Estate of D.M.O., deceased.
    No. 20060280.
    Supreme Court of North Dakota.
    May 23, 2008.

      Monty Grant Mertz, Fargo, N.D., for petitioner and appellant.
    C. Nicholas Vogel (argued), Vogel Law Firm, Fargo, N.D. and Mark R. Hellerud (on brief), Ada, MN, for respondents and appellees.
   CROTHERS, Justice.

[¶ 1] E.O. appeals from district court orders, which denied her petition to remove M.O. and J.O. as guardians for their mother, D.M.O., and to appoint herself as guardian, denied E.O.’s motion to require D.M.O.’s trustee to reconvey D.M.O.’s house to D.M.O.’s estate, and failed to award E.O. additional attorney’s fees. We dismiss as moot all issues relating to D.M.O.’s guardianship and conservatorship and affirm the order denying E.O. additional attorney’s fees.

I

[¶ 2] This appeal arises from proceedings on remand in In the Matter of Guardianship and Conservatorship of D.M.O., 2005 ND 158, 704 N.W.2d 554, which sets forth the relevant facts in this case.

[¶ 3] In July 2006, the district court held an evidentiary hearing on remand and thereafter ordered that M.O. and J.O. remain as co-guardians for their mother, D.M.O., but that State Bank and Trust of Fargo (“State Bank”) replace M.O. and J.O. as their mother’s conservators. The court also ordered the sale of D.M.O.’s house. The court further concluded E.O. should be reimbursed only for attorney’s fees and costs incurred in her prior successful appeal to this Court, effectively denying her attorney’s fees for proceedings subsequent to the appeal.

[¶4] In October 2006, E.O. appealed from the district court orders; however, D.M.O. died in December 2006 while her appeal was pending. In separate subsequent proceedings, E.O. was appointed personal representative of D.M.O.’s estate.

II

[¶ 5] On appeal, E.O. argues that, despite D.M.O.’s death, the issues in this appeal are not moot, that the district court’s findings of fact and conclusions of law are erroneous, and that D.M.O.’s house should be conveyed to E.O.

[¶ 6] Generally, this Court will dismiss an appeal when issues become moot or academic and there is no actual controversy left for our determination. See Donlin v. Donlin, 2007 ND 5, ¶ 19, 725 N.W.2d 905; Ramsey Fin. Corp. v. Haugland, 2006 ND 167, ¶ 8, 719 N.W.2d 346; DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 10, 636 N.W.2d 432. “An actual controversy no longer exists when the issue has been rendered moot by a lapse of time, or the occurrence of related events which make it impossible for a court to grant effective relief.” Haugland, at ¶ 8. Thus, an appeal is rendered moot when, because of “the occurrence of an event prior to the appellate court’s determination, the appellate court is unable to render effective relief.” Ashley Educ. Ass’n v. Ashley Pub. Sch. Dist. No. 9, 556 N.W.2d 666, 668 (N.D.1996); see also Percho v. Remmick, 2003 ND 85, ¶ 9, 662 N.W.2d 259.

[¶ 7] This Court, however, will decide an otherwise moot issue “if the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review.” Sposato v. Sposato, 1997 ND 207, ¶ 9, 570 N.W.2d 212. See also Ashley Educ. Ass’n, 556 N.W.2d at 668; Fercho, 2003 ND 85, ¶ 9, 662 N.W.2d 259.

[¶ 8] Here, E.O. concedes the main issues in this case involve D.M.O.’s guardianship and conservatorship, but she maintains these issues remain of public interest capable of repetition, yet evading review. E.O. asserts these issues include the status of the ward’s homestead in light of federal and state medicaid laws and E.O.’s treatment as an adult caregiver throughout these proceedings. E.O. also asserts various misconduct and malfeasance by M.O. and J.O. during their time as D.M.O.’s conservator, in addition to assertions against State Bank acting as trustee for D.M.O.’s trust. Nonetheless, when the ward in a guardianship/conservator-ship proceeding dies, the guardianship terminates and the ward’s estate may be referred to probate. See N.D.C.C. § 30.1— 28-06. M.O. and J.O. argue it makes no sense to continue with an appeal to decide whether E.O. might have been a better guardian for her mother, whether an accountant selected by E.O. might have been a better conservator than State Bank, or whether D.M.O. received the best possible care, because this Court cannot render effective relief with respect to who should be guardian or conservator.

[¶ 9] Based upon D.M.O.’s death in December 2006 while this appeal was pending, we conclude this Court cannot render effective relief with respect to the issues surrounding the guardianship and conser-vatorship. Further, we cannot say that any issues raised are capable of repetition, yet evading review.

[¶ 10] We note, however, E.O. has raised an issue about a paragraph in the district court’s order, which E.O. argues could potentially exonerate State Bank from responsibility for its conduct in this case. E.O. asks this Court to vacate that paragraph, claiming the district court “stated in no uncertain terms that [E.O.] could sue State Bank and Trust for its malfeasance.” On appeal, E.O. expressed concern that failure to challenge that paragraph could bind her in subsequent proceedings, presumably based upon res judicata or collateral estoppel principles. Because this issue was not fully litigated below and because we dismiss the issues relating to the guardianship and conserva-torship as moot, E.O. is not barred from challenging that paragraph in a separate proceeding if it arises. Likewise, we express no opinion with regard to the enforceability of that paragraph.

[¶ 11] We dismiss as moot E.O.’s appeal relating to issues about the guardianship and conservatorship, with the exception of the district court’s determination about E.O.’s attorney’s fees.

Ill

[¶ 12] E.O. argues the district court erred in failing to award her additional attorney’s fees for the balance of this litigation. E.O. claims the district court “has implicitly and expressly approved the payment of all the attorneys fees for all of the other participants in this case from its inception.”

[¶ 13] In its August 2006 decision, the district court ordered State Bank, as D.M.O.’s conservator, to pay E.O.’s reasonable attorney’s fees and costs only for her prior appeal to this Court. The court also ordered State Bank as conservator to pay the reasonable attorney’s fees and expenses of J.O. and M.O.’s attorney. Both of these awards were subject to the district court’s approval of the attorneys’ submissions. E.O. only appeals the district court’s failure to award additional fees.

[¶ 14] Generally, this Court applies “the ‘American Rule,’ [which] requires parties to bear their own attorney’s fees.” Matter of Estate of Murphy, 554 N.W.2d 432, 440-41 (N.D.1996) (quoting State Farm Mut. Auto. Ins. Co. v. Estate of Gabel, 539 N.W.2d 290, 294 (N.D.1996)). “A successful litigant is not entitled to attorney’s fees unless [those fees] are expressly authorized by statute or by agreement of the parties.” Gratech Co. v. Wold Eng’g, P.C., 2007 ND 46, ¶ 17, 729 N.W.2d 326. “This Court reviews a district court’s decision regarding attorney’s fees under the abuse of discretion standard.” Id. at ¶ 18. “A district court abuses its discretion if it acts in an arbitrary, unconscionable, or unreasonable manner, or if it misinterprets or misapplies the law.” Id.

[¶ 15] Here, in support of her assertion that the district court erred in failing to award her additional attorney’s fees, E.O. relies on this Court’s prior decision in Matter of Estate of Hass, 2002 ND 82, 643 N.W.2d 713. In Estate of Hass, this Court concluded in the context of a will contest case that, while “there [was] no statutory basis for an award of attorney[’s] fees for legal services performed primarily for [a beneficiary’s personal interest,]” the district court properly awarded attorney’s fees as a matter of equity for legal services benefitting the estate as a whole, even where the litigation did not increase the estate’s overall value. Id. at ¶¶ 21-23 (discussing Matter of Estate of Rohrich, 496 N.W.2d 566, 570 (N.D.1993)). “While the will contest litigation [in Estate of Hass] did not increase the overall value of the estate, it resulted in the determination of the proper course of administering the decedent’s estate and in determining the proper distribution of the estate’s assets among the heirs of the deceased.” Estate of Hass, at ¶ 23.

[¶ 16] Although this Court has permitted the district court to award attorney’s fees in equity to third parties in the context of wills and decedent’s estates, we have not extended this principle to include third parties challenging the appointment and activities of guardians and conservators. Although E.O. argues her litigation costs should be recoverable based upon financial benefit to the estate and sound administration of the guardianship, we decline to extend Estate of Hass to include cases involving third party challenges to guardianships and conservatorship s. Because E.O. has not demonstrated additional attorney’s fees are authorized by statute or by the parties’ agreement, we conclude the district court did not abuse its discretion in failing to award E.O. additional attorney’s fees in this case.

[¶ 17] E.O. also asks this Court to remand the case and to direct State Bank to recover the attorney’s fees paid for defending the prior successful appeal and paid in conjunction with the mismanagement of the estate. We note that there is statutory support for paying the attorney’s fees of guardians and conservators. See N.D.C.C. §§ 30.1-28-03(9), 30.1-29-24(3)(w), (x). Based upon our review of the record, however, we do not believe E.O. has demonstrated the district court abused its discretion in awarding those fees, and we therefore reject her request.

IV

[¶ 18] We dismiss as moot E.O.’s appeal from the district court orders relating to the guardianship and the conservator-ship, and we affirm the order denying E.O. additional attorney’s fees.

[¶ 19] GERALD W. VANDE WALLE, C.J., DONOVAN FOUGHTY, D.J., SONNA M. ANDERSON, D.J., and MARY MUEHLEN MARING, JJ., concur.

[¶ 20] The Honorable SONNA M. ANDERSON, D.J., and DONOVAN ■ FOUGHTY, D.J., sitting in place of SANDSTROM, J., and KAPSNER, J., disqualified.


author: BJORKMAN, Circuit Judge.

text:
    2008 SD 34
    SIOUX FALLS SHOPPING NEWS, INC., Appellant v. DEPARTMENT OF REVENUE AND REGULATION, Appellee.
    No. 24616.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2008.
    Decided April 23, 2008.

      Mark V. Meierhenry and Patrick J. Glover, of Danforth and Meierhenry, LLP, Sioux Falls, SD, for appellant.
    Harvey M. Crow, Jr., Department of Revenue and Regulation, Pierre, SD, for appellee.
   BJORKMAN, Circuit Judge.

[¶ 1.] Sioux Falls Shopping News, Inc., (Shopping News) appeals from the circuit court’s judgment affirming the decision of the South Dakota Department of Revenue and Regulation (Department) that the money Shopping News paid for its delivery and distribution services was subject to the use tax. We affirm.

FACTS

[¶ 2.] Shopping News publishes a weekly advertiser distributed free to the general public in the Sioux Falls area. Shopping News contracts with drivers who take the papers from Shopping News’ Sioux Falls headquarters and deliver them to drop-off points within a forty mile radius of Sioux Falls. Local carriers — boys and girls between the -ages of nine and twelve — pick up the publication at the drop-off points and deliver it door-to-door to homes in the area.

[¶ 3.] Department conducted an audit of the Shopping News from June 2001 through May 2004. The audit resulted in an assessment of use tax on the fees Shopping News paid the contract drivers and local carriers, in the amount of $18,675.63, with an additional $4,704.25 assessed for interest.

[¶ 4.] Shopping News appealed Department’s determination. The Administrative Law Judge (ALJ) concluded that Shopping News failed to prove entitlement to a statutory exemption from the tax, and entered a proposed decision, which Department’s Secretary adopted as Department’s final decision. Shopping News then appealed the ALJ’s decision to the circuit court.

[IT 5.] After the circuit court affirmed the ALJ’s decision, Shopping News appealed to this Court. Shopping News raises four issues:

Whether the circuit court applied the correct standard of review in affirming Department’s decision.
Whether the taxpayer is exempt from the use tax because the publication being delivered is a shoppers’ guide. Whether distribution and delivery services are exempt from the use tax. ■Whether local carriers are Shopping News’ employees, exempting their services from the use tax.

STANDARD OF REVIEW

[¶ 6.] We examine agency findings in the same manner as the circuit court, to decide whether, in light of all the evidence, the findings are clearly erroneous. TAX Communications v. South Dakota Unemployment Ins. Div., 2007 SD 68, ¶ 8, 736 N.W.2d 840, 842. “ ‘If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse.’ ” Id. (citing Streeter v. Canton School Dist., 2004 SD 30, ¶ 14, 677 N.W.2d 221, 225). Questions of law are fully reviewable. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228.

[¶ 7.] The standard of review regarding imposition of and exemption from tax is well settled in South Dakota:

The question of whether a statute imposes a tax under a given factual situation is a question of law. Statutes which impose taxes are to be construed liberally in favor of the taxpayer and strictly against the taxing body. Statutes exempting property from taxation should be strictly construed in favor of the taxing power. The words in such statutes should be given a reasonable, natural, and practical meaning to effectuate the purpose of the statute.

Butler Machinery Co. v. South Dakota Dept. of Revenue, 2002 SD 134, ¶ 6, 653 N.W.2d 757, 759 (citations omitted) (quoting Robinson & Muenster Associates, Inc. v. South Dakota Dept. of Rev., 1999 SD 132, ¶ 7, 601 N.W.2d 610, 612).

ANALYSIS AND DECISION

ISSUE ONE

[¶ 8.] Whether the circuit court applied the correct standard of review in affirming Department’s decision.

[¶ 9.] Shopping News contends that the circuit court, in affirming Department’s decision, applied an incorrect standard of review, asserting that the applicable standard is set out in Matter of Sales and Use Tax Refund Request of Media One, 1997 SD 17, ¶ 9, 559 N.W.2d 875, 877. Under that standard, a reviewing court was required to affirm an agency’s findings if there was some “substantial evidence” in the record to support them. Id. This Court no longer employs the substantial evidence test, however. This change, first announced in Sopko, 1998 SD 8, ¶ 7, 575 N.W.2d at 228-29, reflects the legislature’s amendment of SDCL 1-26-36, which changed the standard of review for sufficiency of the evidence from “unsupported by substantial evidence on the whole record” to “[c]learly erroneous in light of the entire evidence in the record[.]” Therefore, this Court declines to adopt Shopping News’ proposed standard of review and holds that the circuit court applied the correct standard.

ISSUE TWO

[¶ 10.] Whether the taxpayer is exempt from the use tax because the publication being delivered is a shoppers’ guide.

[¶ 11.] Shopping News contends that the fees it paid to contract drivers and local carriers for their distribution and delivery services are exempt from the use tax by virtue of SDCL 10-46-9.1. We disagree.

[¶ 12.] Sales tax is imposed “upon the gross receipts of any person from the engaging or continuing in the practice of any business in which a service is rendered.” SDCL 10-45-4. Any “service” as defined by SDCL 10-45-4.1 is taxable, unless the service is specifically exempt from the provisions of SDCL ch. 10-45. SDCL 10-45-4. “Service” means “all activities engaged in for other persons for a fee, retainer, commission, or other monetary charge, which activities involve predominantly the performance of a service as distinguished from selling property.” SDCL 10-45-4.1.

[¶ 13.] SDCL 10-46-2.1 imposes a use tax on a person using services, measured by the value of the services at the time they are rendered. This statute imposes a tax upon the use of a service unless it is specifically exempted by SDCL 10-46-17.3. The use tax is intended to complement and supplement the sales tax. Media One, 1997 SD 17, ¶ 20, 559 N.W.2d at 882. Prior to its repeal, SDCL 10-46-57 specifically imposed a use tax on the “privilege of the use of any transportation of tangible personal property” if that transportation began and ended within South Dakota. SDCL 10-46-57 (1996 rev.).

[¶ 14.] SDCL 10-45-12.1, incorporated in the use tax law by SDCL 10-46-17.3, exempts specific services from the tax. SDCL 10-45-12.1 identifies “advertising services” as exempt from the sales tax. SDCL 10-46-9.1 defines shoppers’ guides as free “advertising publications.”

[¶ 15.] Shopping News contends that, because the legislature defined shoppers’ guides as advertising publications in SDCL 10-46-9.1, it intended to exempt not only the income from the sale of advertising, but also the related cost of delivering those services, including the fees Shopping News paid to its contract drivers and delivery carriers.

[¶ 16.] We decline to adopt Shopping News’ argument. The language of SDCL 10-46-9.1 specifically exempts from the use tax the costs of “[i]nk and newsprint when used in the production of shoppers’ guides[.]” It provides no relief from the tax Shopping News now contests.

ISSUE THREE

[¶ 17.] Whether distribution and delivery services are exempt from the use tax.

[¶ 18.] Shopping News next argues that, even if SDCL 10-46-9.1 does not exempt all costs related to advertising services, the money Shopping News pays for contract drivers and delivery carriers is still exempt from the use tax because those payments fall within the scope of advertising services exempted by SDCL 10-45-12.1. Shopping News bears the burden of proving that the fees it pays to the contract drivers and local carriers to distribute the publication fall within a statutory exemption. Graceland College Center for Professional Development and Lifelong Learning, Inc. v. South Dakota Department of Revenue, 2002 SD 145, ¶ 11, 654 N.W.2d 779, 783-84.

[¶ 19.] Some background is necessary to aid in the analysis of Shopping News’ assertion. SDCL 10^45-5.2 specifically subjects to taxation the services enumerated in the Standard Industrial Classification Manual (SIC Manual) 1987. Major group 73, business services, is among those services. We have previously addressed this major group. “Major Group 73 of the SIC Manual ‘includes establishments primarily engaged in rendering services, not elsewhere classified, to business establishments on a contract or fee basis ... ’ Under SDCL 10-45-5.2 Major Group 73 in its entirety, is specifically subject to tax.” Graceland College, 2002 SD 145, ¶ 18, 654 N.W.2d at 786. SIC Industry No. 7319 subjects to taxation businesses that distribute advertising materials and provide delivery services on a contract or fee basis to businesses engaged in advertising services. This category includes those drivers and local carriers with whom Shopping News contracted.

[¶ 20.] SDCL 10^45-12.1 exempts certain services from tax. The greater part of the statute employs the SIC Manual to define specified exempt services. The statute also exempts services not listed in the SIC Manual, including “advertising services.”

[¶ 21.] Shopping News draws from our decision in Welcome Wagon Intern., Inc. v. South Dakota Dept. of Revenue, 318 N.W.2d 5 (S.D.1982), to support its claimed exemption. In Welcome Wagon, the circuit court upheld Department’s determination that Welcome Wagon’s revenue was subject to the state sales and service tax. On appeal, Welcome Wagon claimed that it was misclassified in a non-advertising category by the federal government in the 1972 version of the SIC Manual, but that the misclassification should not prevent it from receiving an exemption under SDCL 10^45-12.1 since it was an advertising service specifically exempt under SDCL 10-45-12.1. In reversing the circuit court, we stated:

Appellant argues that since 12.1’s exemption for advertising services is found in that part of the statute which does not specifically refer to the SIC Manual, any service, however or whether classified in the SIC Manual, which can prove it is an advertising service should be allowed the exemption for advertising services. We agree.

Welcome Wagon, 318 N.W.2d at 7.

[¶ 22.] Shopping News then points to SIC Industry No. 7319, “Advertising, Not Elsewhere Classified,” which lists, among other types of advertising, “shopping news advertising and distributing service.” Shopping News argues that this language from the SIC Manual supplies the applicable definition of “advertising services” contained in SDCL 10-45-12.1, thus entitling it to an exemption from the use tax.

[¶ 23.] Shopping News’ reliance on our language in Welcome Wagon is misplaced. The import of our decision in that case is that the business service in question must be analyzed to determine whether it fits within the sales tax exemption for advertising services. The business service involved in Welcome Wagon was the distribution of promotional literature to local residents—advertising services which SDCL 10-45-12.1 exempts from the sales tax. The issue now before the Court is different. Here the question is not whether Shopping News is an advertising service subject to sales tax, but rather, whether the monies it paid to contract drivers and local carriers is subject to the use tax. We have frequently held that, when examining whether a tax applies, the focus belongs on the transaction, not the character of the participants. Media One, 1997 SD 17, ¶ 17, 559 N.W.2d at 880; Cooperative Agronomy Services v. South Dakota Department of Revenue, 2003 SD 104, ¶ 8, 668 N.W.2d 718, 721.

[¶ 24.] ARSD 64:06:02:03 defines “advertising services” as “the business of preparing advertisements for publication” in the media stated in the rule. The administrative rule includes neither distribution nor delivery services within the definition. Administrative rules have “ ‘the force of law and are presumed valid.’ ” Media One, 1997 SD 17, ¶ 11, 559 N.W.2d at 878 (citations omitted). Indeed, ARSD 64:06:02:03 provides an exemption from tax for “[s]erviees purchased by the agency to assist it in completing a project for a current customer ... if the service is an integral and inseparable component of the ultimate service to its customer....” To claim the exemption, the entity seeking it must supply “the service provider with an exemption certificate.” Id. (emphasis added). The record does not demonstrate that Shopping News provided either the contract drivers or local carriers with an exemption certificate, and Shopping News does not contend that the questioned services fit within ARSD 64:06:02:03’s exception.

[¶25.] Shopping News’ claim that the services are exempt is further weakened by the language of SDCL 10-46-9.1 itself, which provides those publishing shoppers’ guides with specific exemptions from the use tax for the cost of ink and newsprint. The legislature’s reference to these exemptions undercuts Shopping News’ claim that the legislature intended to exempt costs for services by contract drivers and local carriers, which are not provided for in that statute.

[¶ 26.] Shopping News’ argument would require us to adopt a definition of advertising services the legislature did not enact. “This Court may not add language to a statute by ‘judicial legislation.’ ” Hannon v. Weber, 2001 SD 146, ¶ 5, 638 N.W.2d 48, 49 (citing Rabenberg v. Rigney, 1999 SD 71, ¶ 9, 597 N.W.2d 424, 426; In re Estate of Gossman, 1996 SD 124, ¶ 11, 555 N.W.2d 102, 106 (“A court is not at liberty to read into the statute provisions which the legislature did not incorporate, or enlarge the scope of the statute by an unwarranted interpretation of its language.”)). If we were to adopt SIC Industry No. 7319’s language as the definition for advertising services contained in SDCL 10-45-12.1, we would be broadening the exemption beyond the language the legislature employed.

[¶ 27.] Shopping News has not met its burden to show that it is entitled to an exemption from the use tax for monies it paid to contract drivers and local carriers.

ISSUE FOUR

[¶ 28.] Whether local carriers are Shopping News’ employees exempting their services from the use tax.

[¶ 29.] SDCL 10-46-2.1 exempts from the use tax “services rendered by an employee for the use of his employer. Shopping News contends that the local carriers — delivery boys and girls — are employees rather than independent contractors, and thus, that the services rendered by them are exempt from the use tax. The ALJ found that the boys and girls who delivered the Shopping News were contract carriers, not Shopping News’ employees. In its appeal to the circuit court, Shopping News did not challenge this finding. It first raised the issue on appeal to this Court. “Generally, this Court will not address issues raised for the first time on appeal and not presented to the trial court.” State v. Olson-Lame, 2001 SD 51, ¶ 6, 624 N.W.2d 833, 834. This rule exists to permit a trial court an opportunity to correct claimed error, prior to appeal. State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763. Since this issue was not raised below, this Court will not address it now.

[¶ 30.] The decision of the circuit court is affirmed.

[¶ 31.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, concur.

[¶ 32.] BJORKMAN, Circuit Judge, for MEIERHENRY, Justice, disqualified.

      . Department assessed, other items as well, but Shopping News contests only the tax related to contract driver and carrier labor.

      . The amendment was effective July 1, 1978. Sopko, 1998 SD 8, ¶ 7, 575 N.W.2d at 228. Our decision in Sopko, which addressed this statutory change, was handed down ten months after Media One. In this case, the applicable standard is of little significance, since neither party challenged the facts found by the ALJ. Both parties argued the case on undisputed facts, and treated the issues before the trial court as questions of law.

      . SDCL 10-46-57 was enacted by the 1996 legislature. See 1996 S.D.Sess.L. ch. 83, § 2. It was repealed effective July 1, 2004. See 2004 S.D.Sess.L. ch. 94, § 12.

      . More fully stated, SDCL 10-46-9.1 defines shoppers’ guides to include "advertising publications whose advertisements are solicited from the general public and whose publications are for free distribution to the general public and are published regularly at least once a month, consisting of printed sheets containing advertising, bearing a date of issue, and devoted to advertising of general interest.’’

      . This manual is prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President. SDCL 10-45-5.2. The SIC Manual is divided into two-digit major groups and three-digit industry groups or four-digit industry codes. Graceland College, 2002 SD 145, ¶ 7 n. 2, 654 N.W.2d at 783.

      . The testimony to support this finding came from Shopping News’ president, K.A. Lesner, who acknowledged during cross examination that the local carriers were not Shopping News' employees.

      . Indeed, in argument before the circuit court, Shopping News’ counsel informed the court there were no facts in dispute in the administrative appeal, and that, "the kids are paid weekly, they are not employees at all.” Moreover, Shopping News did not provide Department’s auditor with W-2 forms indicating that the carriers were its employees.