David L. WEGLEITNER, Plaintiff and Appellant, v. Brian Lee SATTLER, Defendant, and Town of Lake City, a public corporation, incorporated under the laws of South Dakota, d/b/a Lake City Municipal Bar, Defendant and Appellee, 582 N.W.2d 688

GILBERTSON, Justice (on reassignment). [¶ 1.] David Wegleitner was injured after being struck by an intoxicated motorist. Wegleitner brought suit against the bar which furnished the intoxicating .liquors to the motorist. Wegleitner appeals from

summary judgment granted in favor of ban We affirm. FACTS AND PROCEDURE [¶ 2.] On the evening of March 9, and into the early morning hours of March 10, 1996, Brian Sattler was a customer at the Lake City Municipal Bar (Bar). He testified by deposition that he arrived some time after 6:00 p.m. and left at closing time at 2:00 a.m. He testified that he drank in excess of twelve beers at the Bar, became intoxicated, and did not remember the last hour he was there.

He later learned that his sister offered to drive him home, but he did not independently recall that conversation. [¶ 3.] Sattler left the Bar, driving south on South Dakota Highway 25. Meanwhile, Marshall County Deputy Sheriff David Wegleit-ner was patrolling that highway and had caused a suspected drunk driver to pull onto the shoulder. They were seated in the patrol car, amber lights flashing, when Sattler’s vehicle violently struck the patrol car from behind, causing severe injuries and damages. Wegleitner sued Sattler and Bar for his injuries.

Wegleitner alleges that Bar continued to serve alcohol to Sattler despite his obviously intoxicated condition. The trial court granted Bar’s motion for

summary judgment and Wegleitner appeals raising the following issues: 1. Whether SDCL 35-11-1 is an unconstitutional violation of the doctrine of separation of powers by the South Dakota Legislature for establishing the consumption of alcohol as the sole proximate cause for negligence in alcohol related cases. ' 2. Whether SDCL' 35-11-1 and SDCL 35-4-78 violate the open courts provision of SD Const, art. VI, § 20. 3. Whether SDCL 35-11-1 is an unconstitutional violation of the doctrine of substantive due process under SD Const, art. VI, § 2.

STANDARD OF REVIEW [¶ 4.] Our review of a challenge to the constitutionality of a statute is de novo. Green v. Siegel Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398 (citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D.1995)). To succeed in a constitutional challenge to a legislative act, the challenger must prove beyond a reasonable doubt that the legislature acted outside of its constitutional authority. City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 131 (S.D.1994). “If a statute can be construed so as not to violate the constitution, that construction must be adopted.” Cary v.

City of Rapid City, 1997 SD 18, ¶10, 559 N.W.2d 891, 893, (citing Simpson v. Tobin, 367 N.W.2d 757, 766 (S.D.1985)). [¶ 5.] COMMON LAW AND STATUTORY HISTORICAL BACKGROUND Tavern Owners Not Liable at Common Law At common law it is not a tort to either sell or give intoxicating liquor to ordinary able-bodied men, and it has been frequently .held that in the absence of statute, there can be no cause of action against one furnishing liquor in favor of those injured by the intoxication of the person so furnished.

The reason usually given for this rule is that the drinking of the liquor, not the furnishing of it, is the proximate cause of the injury. The rule is based on the obvious fact .that one cannot become intoxicated by reason of liquor furnished him if he does not drink it. 45 Am.Jur.2d Intoxicating Liquors § 553 (1969) (collecting cases) (emphasis added). There can be no doubt that this was the rule in this jurisdiction as in Paulson v.

Langness, 16 S.D. 471, 474, 93 N.W. 655, 656 (1903), we held, “[a]t common law the wife could not recover [from a saloon owner] for the loss of support occasioned by the death of her husband.” See also Kennedy v. Garrigan, 23 S.D. 265, 121 N.W. 783 (1909). We continued to recognize this common law rule of nonliability for the supplier of alcoholic beverages in Griffin v.

Sebek: At common law, and apart from statute, no redress exists against persons selling, giving, or furnishing intoxicating liquor, or their sureties, for resulting injuries or damage due to the acts of intoxicated persons, whether on the theory that the dispensing of the liquor constitutes a direct wrong or constitutes actionable negligence. In the same vein, it has been stated that there is no cause of action at common law for selling or giving away intoxicating 'liquor to one who is strong and able-bodied.

The rule is based on the theory that the proximate cause of the injury is the act of the purchaser in drinking the liquor and not the act of the vendor in selling it. 90 S.D. 692, 695, 245 N.W.2d 481, 483 (1976) (quoting 48A C.J.S. Intoxicating Liquors § 428 (1981) (emphasis added)), overruled on other grounds by Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982). Walz was superseded by SDCL 35-11-1, infra, as stated in Wildeboer v. South Dakota Junior Chamber of Commerce, Inc., 1997 SD 33, 561 N.W.2d 666.

Legislative Involvement in the Allocation of Fault in Alcohol Related Accidents. [¶ 6.] The South Dakota legislature has enacted a statutory scheme regulating the selling of alcohol. SDCL 35-4-78 provides: No licensee may sell any alcoholic beverage:

(1) To any person under the age of twenty-one years; or

(2) To any person who is obviously intoxicated at the time. A violation of this

section is a Class 1 misdemeanor. However, no licensee is civilly liable to any injured person or his estate for any injury suffered, including any action for wrongful death, or property damage suffered because of thé intoxication of any person due to the sale of any alcoholic beverage in violation of the provisions of this section. The South Dakota legislature has codified the common law in the area of liability for injuries inflicted by intoxicated persons.

SDCL 35-11-1 provides: The Legislature finds that the consumption of alcoholic beverages, rather than the serving of alcoholic beverages, is the proximate cause of any injury inflicted upon another by an intoxicated person. Therefore, the rule in Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982) is hereby abrogated. [¶ 7.] This Court has recognized this legislative policy determination that no civil liability “will attach to a bar for the furnishing of alcoholic beverages to a person who subsequently causes an injury to a third party.” Wildeboer, 1997 SD 33 at ¶ 29, 561 N.W.2d at 671.

Therein we cited SDCL 1-1-24 which provides: “[i]n this state the rules of the common law ... are in force, except where they conflict with the will of the sovereign, power, expressed in the manner stated in § 1-1-23.” Id. In affirming

summary judgment in favor of the Jaycees, this Court noted that the legislature simply codified the common law of negligence by enacting SDCL 20-9-1 which provides: Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence. Id. 1997 SD 33 at ¶ 13, 561 N.W.2d at 669 (citing In re Certif. of Questions (Knowles v. United States) (Knowles), 1996 SD 10, ¶ 21, 544 N.W.2d 183, 188 (citing Baatz v.

Arrow Bar, 426 N.W.2d 298, 304 (S.D.1988) (other citations omitted))). SDCL 35-11-1 and the amended SDCL 35-4-78 merely, by codification, return to the common law rule of nonlia-bility for furnishers of alcoholic beverages. In Wildeboer, we concluded that: If the Legislature can validly enact, repeal and amend statutes, we know of no constitutional doctrine that precludes it from interpreting a statute by the enactment of another statute. Our cases are legion where we seek to interpret the intent of the Legislature.

Id. [¶ 8.] As previously noted, this Court in Griffin, swpra, answered “no” when asked to decide whether “in the absence of a Civil Damage Act, otherwise referred to as a “Dram Shop Act,” the common law ... authorizes or should be liberalized to afford a remedy” against those who furnish intoxicating liquors. The Griffin court found no common law or statutory right giving rise to such an action and declined to judicially legislate in this area.

Id. 245 N.W.2d at 483. “That the creation of rights and remedies in these civil damage acts is a proper exercise of legislative power has been so long settled that no citation of authorities is necessary.” Id. (citing Kennedy, supra).. One thing must be constantly borne in •mind when considering these civil damage acts — the right and the remedy created by these statutes are exclusive. No right of action exists save that expressly given by the statute, and the remedy prescribed cannot be enlarged except by further legislative enactment. Id. (citing Kennedy, 23 S.D. at 268,121 N.W. at 785).

The common law rule that the consumption of alcoholic beverages is the proximate cause of any damages, rather than its furnishing, was again recognized by this Court, and continued to be adhered to. Id. [¶ 9.] As noted, Griffin was subsequently overruled by Wafeon nonconstitutional statutory grounds. However, Walz was abrogated by SDCL 35-11-1. This legislative act merely codified a return to the common law as set forth in Griffin.

The passage of SDCL 35-11-1 and the analysis in Wildeboer have reaffirmed the common law doctrine of nonliability recognized in Griffin thus creating the basis for Wegleitner’s constitutional challenges. ISSUE I [¶ 10.] WHETHER SDCL 35-11-1 IS'AN UNCONSTITUTIONAL VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS BY THE SOUTH DAKOTA LEGISLATURE FOR ESTABLISHING THE CONSUMPTION OF ALCOHOL AS THE SOLE PROXIMATE CAUSE FOR NEGLIGENCE IN ALCOHOL RELATED CASES. [¶ 11.] There is a two-fold purpose for the doctrine of separation of powers.

Its first purpose is to prevent an unnecessary and therefore dangerous concentration of power in one branch of government. Chadha v. Immigration & Naturalization Service, 634 F.2d 408, 422-23 (9th Cir.1980). Second, it also serves as a practical measure to efficiently facilitate the administration of our state government by the assignment of numerous labors to designated governmental authorities. Id. We have held that: This court has power to determine what such legislation is, what the constitution contains, but not what it should contain.

It has the power to determine what statutory laws exist, and whether or not they conflict with the constitution; but it cannot say what laws shall or shall not be enacted. It has the power, and it is its duty, whenever the question arises in the usual course of litigation wherein the substantial rights of any actual litigant are involved, to decide whether any statute has been legally enacted[.] State v. Thorson, 9 S.D. 149, 154-55, 68 N.W. 202, 203-4 (1896). [¶ 12.] Our analysis in Knowles, supra, supports the constitutionality of SDCL 35-11-1 and SDCL 35-4-78.

First, this Court held that South Dakota does not recognize a parent’s claim of loss of a child’s consortium because the common law did not recognize such a claim and the legislature did not enact a contrary statute. Id. 1996 SD 10 at ¶ 42, 544 N.W.2d at 192. We relied upon long standing constitutional authority as to legislative power over the status of the common law: [W]e see that the “Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.” Duke Power Co. v.

Carolina Environmental Study, 438 U.S. 59 at 88 n. 32, 98 S.Ct. 2620 at 2638 n. 32, 57 L.Ed.2d 595 at 620 n. 32 (quoting Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 74 L.Ed. 221 (1929)). Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77, 87 (1876) echoes this point: A person has no property, no vested interest, in any rule of the common law.... Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations.

Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. Id. 1996 SD 10 at ¶ 84, 544 N.W.2d at 203. This is consistent with tavern owner nonlia-bility, as the common law as well as the statutes now before us do not recognize a claim against tavern owners because the act of furnishing alcohol was not the proximate cause of any injuries. [¶ 13.] In Simpson v. Kilcher, 749 S.W.2d 386 (Mo.1988), the plaintiff was injured by a drunken driver. Plaintiff brought suit against the bar that had served the drunken driver.

Missouri statutes overruled previous eases to the contrary and declared that the furnishing of alcoholic beverages, “[is] not the proximate cause of injuries inflicted upon another by an intoxicated person.” The plaintiff challenged the constitutionality of this statute as a violation of separation of powers. In rejecting this argument the Simpson court reasoned: In this case

section 537.053.2 does not “impair judicial analysis” because no analysis is necessary. Under the facts of this case the statute simply bars Simpson’s cause of action. The reference to proximate cause was designated to restate the reasoning used by the common law courts in rejecting dram shop liability. By explicitly rejecting the reasoning of Carver, Sampson and Nesbitt, the legislature made it clear that dram shop liability would no longer exist in Missouri.

The reference to the eases may not have been the best means available for the legislature to express its intent, but in this case there can be no doubt the intent was to prohibit dram shop liability. 749 S.W.2d at 390. [¶ 14.] The separation of powers issue was also analyzed, in Reuter v. Korb, 248 Ill.App.3d 142, 186 Ill.Dec. 731, 616 N.E.2d 1363 (1993). In a personal injury action, the plaintiff argued against the allowance of the defendant’s statutorily authorized affirmative defense of comparative fault.

The plaintiff maintained that since comparative fault was initially adopted by a court decision, it was a violation of the doctrine of separation of powers for the Illinois legislature to subsequently modify that doctrine by legislation.

In rejecting that challenge the court held that while a legislature may not pass a statute that attempts to change the result of a court decision that is permanent and final between two parties, the legislature “may enact legislation which changes the effect of a prior decision of a reviewing court with respect to cases which have not yet been decided.” Id., 186 Ill.Dec. 731, 616 N.E.2d at 1378. [¶ 15.] While not specifically addressing this issue in a separation of powers context, numerous other jurisdictions have upheld their respective state legislatures’ policy determinations that tavern owner liability shall be extinguished altogether or severely limited. [¶ 16.] The California legislature has abolished tort liability against the furnisher of alcoholic beverages “except in only one situation, namely, providing alcohol to an obviously intoxicated minor.

No other exceptions to this immunity exist.” Cardinal v. Santee Pita, Inc., 234 Cal.App.3d 1676, 286 Cal.Rptr. 275, 277 (1991). While it is a misdemeanor to supply alcohol to “any habitual or common drunkard or to any obviously intoxicated person” such a violation will not give rise to civil liability. CA Bus. & Prof. § 25602. The court in Cantwell v.

Peppermill, Inc., 25 Cal.App.4th 1797, 31 Cal.Rptr.2d 246, 249 (1994), held that § 25602 ’generally immunizes an establishment from liability for injuries to third parties resulting from the furnishing of alcohol to its patrons, permitting its patrons to consume alcoholic beverages on the premises, or for failing to. prevent or prohibit its patrons from drinking alcoholic beverages and encouraging the use of its premises for drinking. (citing Leong v.

San Francisco Parking, Inc., 235 Cal.App.3d 827, 1 Cal.Rptr.2d 41 (1991)). [¶ 17.] The California Supreme Court has rejected the claim that the immunizing statute constitutes an unconstitutional denial of equal protection. Cory, 174 Cal.Rptr. 500, 629 P.2d at 12. The Cory court noted that the legislature has expansive authority to “establish and to abolish tort causes of action” in holding that the challenged statutes were rationally related to a legitimate state purpose. Id., 174 Cal.Rptr. 500, 629 P.2d at 12-13.

Except as the Constitution otherwise provides, the Legislature has complete power to determine the rights of individuals. [Citation.] It may create new rights or provide that rights which have previously existed shall no longer arise[.] Id., 174 Cal.Rptr. 500, 629 P.2d at 13 (citation omitted). [¶ 18.] A directed verdict in favor of “dram shop” defendants was affirmed in LaRue v. 1817 Lake Inc., 966 S.W.2d 423, 424 (Tenn.Ct.App.1997), appeal denied, (Tenn.1998), after recognizing that the legislature, not the courts, determines public policy.

Tennessee has enacted the common law rule that “consumption of any alcoholic beverage or beer rather than the furnishing ... is the proximate cause of injuries inflicted upon another.” TCA 57-10-101.

Unlike South Dakota, the Tennessee legislature, however, has enacted public policy exceptions to the common law rule allowing civil liability where a plaintiff establishes beyond a reasonable doubt that the “sale” was the proximate cause of the injury and that the alcohol was sold to a minor or an “obviously intoxicated person.” TCA 57-10-102. [¶ 19.]The LaRue court rejected plaintiffs claim that: , because of public policy against furnishing alcohol to minors, a showing beyond a reasonable doubt that a defendant “furnished” [or gave away rather than specifically “sold”] alcohol to a [minor] should be enough to allow a jury to decide whether the furnishing was the proximate cause of an accident.

Id. The LaRue court explicitly stated that since the legislature “unambiguously declared the public policy” in establishing the proximate cause burden, the court was “not at liberty to hold otherwise.” Id. This Court can know nothing of public policy except from the constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, or as politic or impolitic. Considerations of that sort must, in general, be addressed to the legislature.

Questions of policy determined there are concluded here. Id. (emphasis added) (quoting Watson v. Cleveland Chair Co., 789 S.W.2d 538, 540 (Tenn.1989)). [¶ 20.]’ The Georgia legislature has codified the common law proximate cause rule of nonliability with one narrow exception when a person “willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle ... when the sale ... is the proximate cause of such injury or damage.” OCGA 51 — 1—40(b) (Supp.1993).

The legislature may create, abolish, and amend rules governing civil liability of licensees. Jaques v. Lever, 831 F.Supp. 881 (S.D.Ga. 1993) (holding “OCGA 51-1-40 provides for a civil cause of action and that this latter Code

section preempts other causes of action”). [¶ 21.] In Kappa Sigma International Fraternity v. Tootle, 221 Ga.App. 890, 473 S.E.2d 213 (1996), a plaintiffs common law negligence claim against the provider of alcohol was rejected. The court relied upon the common law proximate cause rule as found in OCGA 51-1-40 (“A provider of alcoholic beverages is insulated from liability to third parties except as provided” by statute.).

Id., 473 S.E.2d at 216 (citation omitted). [¶ 22.] Nevada also adheres to the common law rule that the “act of selling [an] intoxicating beverage [is] too remote to serve as the proximate cause of an injury resulting from the negligent conduct of the purchaser of the drink.” Snyder v. Viani, 110 Nev. 1339, 885 P.2d 610, 612 (1994). The Snyder court made it abundantly clear the legislature, “after appropriate surveys, hearings and investigations,” is the proper forum to regulate civil liability of tavern owners. Id. (citing Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969)).

Our continued adherence to the bright-line common law rule necessitates our conclusion that, as with injuries to third parties, consumption is the proximate cause of alcohol-related injuries to the drinker.

Furthermore, we have recognized that permitting third-party negligence claims against commercial alcohol vendors would require us “to answer ... a sundry of ... multifarious questions for the flood of injured litigants that [would] inevitably crowd the Nevada courts.” First-party claims, like third-party claims, would flood our courts with' a multitude of questions that are better addressed by the legislature. “Where, as here, the. issue involves many competing societal, economic, and policy considerations, the legislative procedures and safeguards are well equipped to the task of fashioning an appropriate change, if any, to the settled rule.” We find it noteworthy that following our decision in Hinegardner v.

Marcor Resorts, 108 Nev. 1091, 844 P.2d 800 (1992), the 1993 Nevada legislature chose not to enact legislation that would impose civil liability on tavern keepers for the sale of alcoholic beverages to underage drinkers. This choice not to extend liability supports our decision in Hinegardner and our decision here. Id., 885 P.2d at 612-13 (emphasis added) (citations omitted). [¶ 23.] The Colorado legislature responded similarly to a judicial departure of the common law refusal to impose on tavern owners by enacting a statutory scheme similar to South Dakota’s.

Colorado has abolished dram shop liability except in limited circumstances whereupon recovery is limited to $150,000. Colo.Rev.Stat. § 12-47-801 (1997). The Colorado legislature’s amendments of the dram shop statutes were premised on a recognition that it is not the sale or service of alcohol, but the consumption of alcohol that proximately causes injuries that result from intoxication. Sigman v. Seafood Ltd. Part nership I, 817 P.2d 527, 531 (Colo.1991); Charlton v.

Kimata, 815 P.2d 946, 951 (Colo.1991). [¶ 24.] The Colorado Court of Appeals has upheld this legislative exercise by making it explicitly clear that the civil liability of alcohol vendors is “strictly a creature of statute in Colorado.” Dickman v. Jackalope, Inc., 870 P.2d 1261, 1264 (Colo.Ct.App.1994).

The Dickman court found that the legislature clearly expressed its intent that its statutory scheme “be interpreted so that any common law cause of action against a vendor of alcoholic beverages is abolished” except in limited circumstances for the willful and knowing sale of alcohol to a minor or a person who is visibly intoxicated. [¶ 25.] The case law in the area of a tavern owner’s civil liability for the furnishing of intoxicating liquor is remarkably consistent given its somewhat divergent statutory basis. Some states, like South Dakota, have codified the common law rule of absolute immunity.

Other states have adopted the common law rule of immunity but have provided limited exceptions. The unifying characteristic of the above survey is that the courts have determined that their respective legislatures, and not the courts, are the proper place to determine the state’s public policy.

Despite how socially desirous the opposite result may be, research indicates no case holding that such statutes violate separation of powers limitations. [¶ 26.] Wegleitner argues that the Legislature unconstitutionally invaded the exclusive function of the judiciary by precluding the courts from even considering cases and controversies involving alleged negligence of liquor licensees.

Rather than violate the constitutional doctrine of separation of powers, SDCL 35-11-1 by statute returns to the common law rule of nonliability for furnish-ers of alcoholic beverages which had existed in this state for most of its history. Further, when addressing claims of negligence, the legislature has seen fit to limit or preclude recovery for claims of negligence in numerous instances which are constitutionally sanctioned: sovereign immunity, workmen’s . compensation, statutes of limitation and volunteer immunity.

Wegleitner is unable to muster a single ease from a single jurisdiction which in this factual setting has adopted his rationale. Based on the above-cited authority it is clear that the South Dakota legislature had the constitutional authority to enact 35-11-1 establishing the proximate cause of the alcohol related loss. ISSUE II [¶ 27.] WHETHER SDCL 35-11-1 AND SDCL 35-4-78 VIOLATE THE OPEN COURTS PROVISION OF SD CONST. ART. VI, § 20. [¶28.] Although we have had recent occasion to consider the scope of this constitutional provision, we have not done so against a factual background such as this.

Green, 1996 SD 146, 557 N.W.2d 396 (1996); Knowles, 1996 SD 10, 544 N.W.2d 183; Kyllo, supra. In fact, his question was specifically reserved in Wildeboer, 1997 SD at ¶ 25, 561 N.W.2d at 671. [¶ 29.]

Article VI, § 20 of the South Dakota Constitution states: All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay. As this constitutional provision has remained unchanged since its adoption in 1889, our research and analysis is historically based.

Kyllo, Knowles and Green, supra. [¶ 30.] In Knowles, this Court explicitly recognized the constitutional boundaries between the legislature and the judiciary and laid out the required analysis before striking down a statute as violative of the South Dakota Constitution: In matters of economics and social welfare, courts must defer to our democratically elected representatives unless their enactments patently conflict with some constitutional provision. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963).

If SDCL 21-3-11 is to be found unconstitutional, it can only be struck down based on its legislative history and our prior case law interpreting our constitution. Id. 1996 SD 10 at ¶ 59, 544 N.W.2d at 195. Neither our prior case law nor legislative history provide an adequate basis to strike down SDCL 35-11-1 and SDCL 35-4-78. To the contrary, our prior case law invited the legislature to do exactly what it did by enacting the statutes at issue. See Walz, 327 N.W.2d at 122, Wildeboer, 1997 SD 33 at ¶ 30, 561 N.W.2d at 671.

Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. Radice v. New York, 264 U.S. 292, 294, 44 S.Ct. 325, 326, 68 L.Ed. 690, 694 (1924).

Knowles, 1996 SD 10 at ¶ 67, 544 N.W.2d at 197. [¶ 31.] Although the wording varies from state to state, thirty seven states have constitutional provisions similar to South Dakota’s. Note, Kyllo v. Panzer: The South Dakota Supreme Court Declares Statutes Unconstitutional Which Limited State Employee Liability, 42 S.D.L.Rev. 327 (1997). See also Green, 1996 SD 146, ¶ 10, 557 N.W.2d at 401. The same year our Constitution was enacted, the Supreme Court of Minnesota observed in Allen v.

Pioneer Press Co., 40 Minn. 117, 41 N.W. 936, 938 (Minn.1889), that, “it must be remembered that what constitutes ‘an adequate remedy’ or ‘a certain remedy’ is not determined by any inflexible rule found in the constitution, but is subject to variation and modification, as the state of society changes.” In Flanders v. Town of Merrimack, 48 Wis. 567, 4 N.W. 741, 747 (1880), the Wisconsin Supreme Court noted that this provision could not provide relief to all claimants simply by virtue of the nature of the legal system which through the frailties of human nature may not always .result in the vindication of a claim.

See also New York Life Ins. Co. v. State, 192 Wis. 404, 211 N.W. 288, 291 (1926). Relying on this earlier case law, the court in Neuhaus v.

Clark County, 14 Wis.2d 222, 111 N.W.2d 180, 184 (1961), declared, “[t]his merely guarantees every suitor his day in a court of competent jurisdiction; it does not guarantee a remedy accompanied by certainty of recovery.” We determined in Green that the prevailing view at the time of the adoption of -Art VI, § 20 was that the provision simply prohibited the selling of justice or requiring fees or fines for a judicial officer to act. 1996 SD 146, ¶ 17, 557 N.W.2d at 401 (citing In re Lee, 64 Okla. 310, 168 P. 53 (1917) and Malin v. La Moure County, 27 N.D. 140, 145 N.W. 582, 586 (1914)).

Montana interpreted its provision to provide: the Constitution was written and adopted in the fight of the conditions and well-known laws ... as they then existed in Montana, and must be construed accordingly. The salutary declarations of

section 6 simply recognize fundamentals of government dear to the American heart; they assert nothing new in the way of constitutional declaration, and clearly were not intended to affect statutory laws then existing. • (Citations omitted). See also Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16, 21 (1959). [¶ 32.] In Sigman, the heirs of an intoxicated decedent challenged the constitutionality of a statute very similar to SDCL 35^1-78 and 35-11-1. As in South Dakota, Colorado had removed dram shop liability by statutory enactment.

The plaintiffs argument was based on a claim of violation of the Colorado open courts provision of its constitution. The Sigman Court rejected the open courts challenge observing, this constitutional provision “does not prevent the legislature from changing the law which creates a right. Rather, this

section simply provides that if a right does accrue under the law, the courts will be available to effectuate such right.” 817 P.2d at 533 (citations omitted). [¶33.] Given the above nature of the understanding of the drafters of the constitutional provisions and its contemporary judicial

interpretations, it is clear that these provisions in South Dakota and surrounding states were meant to allow unhindered access to the courthouse by a person who had a valid cause of action based on existing statute or the common law, timely and properly brought, who then would be allowed to present their case to a human fact finder. In other words under those conditions, a litigant was guaranteed its day in court. Our early cases beginning with McClain v. Williams, 10 S.D. 332, 73 N.W. 72 (1897), rev’d on other grounds, McClain v. Williams, 11 S.D. 60, 75 N.W. 391 (1898), are consistent with this type of

interpretation. In Green, we analyzed our case law from McClain in 1897 up to Knowles in 1996 and found no basis for a claim that Art. VI, § 20 could by itself become a sword to create a cause of action or become a shield to prohibit statutorily recognized barriers to recovery such as a statute of limitations.

We are confident that this condition to the legal cognizability of the claim does not violate the constitutional guarantee for that every “injury done” there shall be a “remedy.” The “remedy” constitutionally guaranteed “for an injury done” is qualified by the words “by due course of law.” This means that the remedy constitutionally guaranteed must be one that is legally cognizable. The legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not. Green, 1996 SD 146 at ¶26, 557 N.W.2d at 403 (citing Lamb v.

Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868, 882 (1983)). [¶34.] As we noted in Green, to construe this provision otherwise could lead to unacceptable results. 1996 SD 146 at ¶25, 557 N.W.2d at 403 (citing Knowles, 1996 SD 10 at ¶ 83, 544 N.W.2d at 203). One would freeze the common law rights as they existed in 1889. Id. “The state of tort law would remain frozen in the nineteenth century, immutable and eventually, obsolete.” Id. The only way to change cómmon-law remedies would be by the difficult amending of our constitution.

A second path, equally unacceptable, is to cut the constitutional provision from its origins and embark on a doctrine of doing away with barriers to recovery with no rational basis to draw any line halting the application of such a theory, arriving at a legal doctrine akin to “anything goes.” 1996 SD 146 ¶ 28, 667 N.W.2d at 404. A third unacceptable option would allow an arbitrary line to be drawn by a bare majority of the justices based on their subjective inclinations rather than reliance upon the established meaning of the constitutional provision.

All three theories are inappropriate to sound constitutional jurisprudence. [¶ 35.] As has been previously established, during our Territorial period preceding the enactment of the Constitution, the common law was well developed on the issue of tavern owner liability. The drafters of the Constitution were very familiar with the subject of alcoholic beverages. Although there have been some statutory modifications in the rules concerning liability through the years. SDCL 36-4-78 and 35-11-1 clearly express the current legislative intent on the subject.

It is a bar to the claim by Wegleitner against' Lake City concerning the operation of its bar. While the wisdom of the current statutes may be justly debatable, there is nothing contained in Art. VI § 20 to topple them. CONCLUSION [¶ 36.] We do not decide this dispute in an evidentiary vacuum. The facts of this ease that a' law enforcement officer is injured in the line of duty by an obvious inebriate without sufficient financial recourse borders on uneonscionability.

This court has consistently recognized the problem that exists on our highways. “The carnage caused by this problem is appalling.” Wildeboer, 1997 SD 33 at ¶ 22, 561 N.W.2d at 670 (citing Walz, 327 N.W.2d at 123, n*). Yet were we to judicially legislate what we firmly believe to be a justifiable result, we, not the legislature, would be guilty of a violation of the separation of powers clause of our state constitution.

Within the limits of our judicial office we can only repeat what we stated in Wildeboer, “we respectfully suggest to the Legislature that it re-examine this issue.” 1997 SD 33 at ¶31, 561 N.W.2d at 672. [¶ 37.] MILLER, C.J., and KONENKAMP, J., concur. [¶ 38.] SABERS and AMUNDSON, JJ., dissent. . The action against Sattler is not part of this appeal. Sattler and his automobile insurance carrier have apparently settled with Wegleitner. Likewise the workers’ compensation rights Weg-leitner would possess provided by his employer, Marshall County, are not before us.

Wegleitner’s patrol car was owned by his employer, Marshall County and the property damage claim to it is not involved in this litigation. . In doing so we are mindful of the constitutional limitations placed on the judiciary in interpreting constitutional provisions as discussed in Cory v.

Shierloh, 29 Cal.3d 430, 174 Cal.Rptr. 500, 629 P.2d 8, 12 (1981), a case which dealt with the same subject matter as is now before us: Before testing the classifications herein presented we caution that our constitutional inquiry does not seek to determine whether the 1978 amendments were or are wise, sound, necessary, or in the public interest. There are ample reasons for concluding otherwise. We simply ask whether the legislation adopted, for what-ever purposes disclosed or undisclosed, is reasonably supportable.

Each day the devastating effects of the drinking driver rage unabated with all of their tragic social and economic consequences. We do not speculate on the influences that might have prompted the Legislature to answer this acute and growing problem by narrowly restricting rather than enlarging civil liability. In the final analysis the Legislature must answer to an informed, and perhaps ultimately aroused, public opinion for its action. We do not substitute our judgment for its own. (emphasis original). .

Legislative determination of what could otherwise be considered proximate cause issues for the jury is nothing new.

Section 2206 of the 1887 Territory of Dakota Compiled Laws allowed suit against a tavern owner who sold, served or allowed to be consumed on his premises, alcohol, to a person whom he had been notified was a habitual drunkard. Civil damages to the intoxicated persons’ 'family, no matter what loss was actually sustained, were set at $500.00 "for each offense.” Id. This act was in effect while the 1889 constitutional convention drafted

Article II of what would become the South Dakota Constitution. See South Dakota Constitutional Convention Debates Vol: 2. A review of the constitutional debates shows no criticism of this act. Upon statehood this act became a state statute. 1890 S.D.Sess.L. ch. 105. "Although many members of the Constitutional convention were to become Legislators in the new State of South Dakota, the early State Legislatures felt no constitutional compulsion to strike down or even modify" this statute. Green, 1996 SD 146 at ¶ 18, 557 N.W.2d at 402.

It seems inconceivable that if this territorial statute were in violation of the separation of powers clause, it would survive the drafting of the constitution and become a state statute. . As noted in Griffin, upon Statehood, the legislature, began making limited inroads in the common law rule of nonliability against furnishers of alcoholic beverages. In early cases, this court was called upon to construe the limits of this legislation. See Paulson, supra; Kennedy, supra; Sandidge v. Widmann, 12 S.D. 101, 80 N.W. 164 (1899).

A review of these early cases is totally void of any suggestion that there are constitutional separation of powers limits on the authority of the legislature to determine under what circumstances liability will arise for the furnishing of alcoholic beverages to another. . Mo.Rev.Stat. § 537.053 provides: 1. Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in

section 1.010, RSMo, to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate .cause of injuries inflicted by intoxicated persons., 2. The legislature hereby declares that this

section shall be interpreted so that the holdings in cases such as Carver v. Schafer, 647 S.W.2d 570 (Mo.Ct.App.1983); Nesbitt v. Westport Square, Ltd., 624 S.W.2d 519 (Mo.Ct.App.1981); and Sampson v. W.F. Enterprises, Inc., 611 S.W.2d 333 (Mo.Ct.App.1980) be abrogated in favor of prior judicial

interpretation finding the consumption of alcoholic beverages, rather than the furnishing of alcoholic beverages, to be the proximate cause of injuries inflicted upon another by an intoxicated person. 3. Notwithstanding subsections 1 and 2 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises who, pursuant to

section 311.310, RSMo, has been convicted, or has received a suspended imposition of the sentence arising from the conviction, of the sale of intoxicating liquor to a person under 'the age of twenly-one years or an obviously intoxicated person if the sale of such intoxicating liquor is the proximate cause of the personal injury or death sustained by such person. (Emphasis added). . California Bus. & Prof.Code § 25602 is substantially similar to SDCL 35-11-1 and provides in part: (

c) The Legislature hereby declares that this

section shall be interpreted so that the holdings in cases such as Vesely v. Sager (5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151]), Bernhard v. Harrah's Club (16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719]) and Coulter v. Superior Court ([21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669]) be abrogated in favor of prior judicial

interpretation finding the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person . ' In addition to the above statute, the California Legislature specifically included the common law rule on proximate cause for voluntary intoxication scenarios in their general negligence statute. Civil Code § 1714 provides: (

a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.. (

b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (5 Cal.3d 153 [95 Cal.Rptr. 623, 486 P.2d 151]), Bernhard v. Harrah's Club (16 Cal.3d 313 [128 Cal.Rptr. 215, 546 P.2d 719]), and Coulter v. Superior Court ([21 Cal3d 144, 145 Cal.Rptr. 534, 577 P.2d 669]) and to reinstate the prior judicial

interpretation of this

section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person. . Other jurisdictions have provided additional authority for the South Dakota legislature to address dram shop liability. In Noonan v.

Galick, 19 Conn.Sup. 308, 112 A.2d 892 (1955), the court noted that since the legislature did not .provide a statutory remedy against a seller of intoxicating beverages to an intoxicated person for his own injuries under a civil damage act, the legislature could hardly have intended that such a cause of action- should be created by "indirection through the violation of the penal statute prohibiting sale of liquor to an intoxicated person.” See also McCall v.

Villa Pizza, Inc., 636 A.2d 912 (Del.1994) (holding that under Delaware law there is no statutory or common law cause of action against tavern by one injured by intoxicated person off the premises); Bennett v. Godfather's Pizza, Inc., 570 So.2d 1351 (Fla.Ct.App.1990); Fisher v. O'Connor’s Inc., 53 Md.App. 338, 452 A.2d 1313 (1982); Malone v.

Lambrecht, 305 Mich. 58, 8 N.W.2d 910, (1943) (holding that the penal statute did not create a cause of action in favor of consumer against furnisher of intoxicating liquor and that ""whether such a provision should be embodied in the statute was within the province of the legislature, not the courts”). In Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976), the court refused to recognize a cause of action against a tavern owner as it had not been authorized by the Nebraska Legislature. .

Under Wegleitner’s rationale, SDCL 35-11-2, which insulates social hosts from liability for furnishing alcohol to guests, • would also be unconstitutional. SDCL 35-11-2 provides: No social host who furnishes any alcoholic beverage is civilly liable to any injured person or his estate for any injury suffered, including any action for wrongful death, or property damage suffered because of the intoxication of any person due to the consumption of such alcoholic beverage. .

In Walz the Court declared: "[i]f the Legislature does not concur with our application of SDCL 35-4-78(2), as now announced, it is the prerogative of the Legislature to so assert.” 327 N.W.2d at 122. . The constitutional declaration that every person is entitled to a certain remedy in the law, and ought to obtain justice freely, without being obliged to purchase it, completely without denial, promptly without delay, conformably to the laws (Const, art. 1 § 9,) is invoked to overthrow the amended act of 1878.

The remedy to which a party is entitled is frequently uncertain until made certain by the judgment of the court; litigation has always been attended with expense; delays have always occurred in the progress of law suits; and parties have often failed, through defect of proof or other causes, to get their just rights at the end of litigations.

Notwithstanding the declaration in the constitution, doubtless' these things will continue to happen, for there has not yet been developed sufficient wisdom on earth to establish a system of jurisprudence free from these hindrances to absolute justice, and the framers of the constitution never supposed that they could do so in a paragraph, and did not attempt it. 4 N.W. at 746-47. . This dubious result was notéd by the Court in New York Life Ins. when it observed: The guarantee of

section 9, art. 1, of the state Constitution "that every person is entitled to a certain remedy in the laws” does not mean a remedy that must be accompanied by a certainty of recovery. If it did, the losing party of every lawsuit would be denied rights guaranteed to him by this

section of the Constitution. This provision does no more than to guarantee to every suitor his day in a court of competent jurisdiction to which he may present his claim for judicial relief and in which he may either win a victory or suffer a defeat, according to the strength or weakness of the case which he presents. 211 N.W. at 291. . Wegleitner argues that the drafters could not foresee the dangers created by high-speed operation of an automobile. While that is true, they were well versed and highly concerned with the effects of alcohol.

One of the major debates at the 1885 Constitutional Convention concerned prohibition. One of the chief participants in the debate would become this Court's first Presiding Judge, Deighton Corson. It was such a controversial topic that it was voted on by the public in 1885 and 1889 separately from the proposed constitution. As Delegate Corson noted, "if that proposition [prohibition] was embodied in the Constitution there was great danger it [the Constitution] would be beaten; but if submitted separately it would be much better." Corson’s concerns were well taken as to the controversy over alcohol.

The prohibition question was narrowly passed in 1885 by a vote of 15,570 to 15,337 and again in 1889 by 40,234 to 34,510. South Dakota Constitutional Debates of 1885, Vol 1, p. 48 and 370. .Perhaps recognizing this, the Legislature has sought to lessen the financial burden imposed on accident victims such as Wegleitner by the enactment of a complex safety net of limited remedies to address this unfortunate type of situation. Those who are driving for an employer for business purposes have the benefits of workers' compensation or applicable insurance carried by the employer. See generally SDCL Title 62.

In addition, the Legislature requires all drivers to purchase liability insurance or prove financial responsibility. SDCL ch 32-35. To protect against those who violate this law by driving without insurance, the Legislature requires that all insurance policies carry both uninsured motorist protection, SDCL 58-11-9, and underin-sured motorist protection, SDCL 58-11-9.4.

Thus, the only way for a driver of a vehicle injured by an uninsured drunk driver to be without an insurance remedy, is by the sober driver also violating the law by failing to purchase his own insurance which would carry the mandatory uninsured and underinsured protection. For passengers of automobiles and pedestrians who suffer injury because of the actions of a drunken driver, and not covered by other insurance, there is the further protection of the Criminal Victim’s Compensation Program. See SDCL 23A-28B-1(3) and 23A-28B-19.

The court having jurisdiction over the drunken driver’s criminal case may also order restitution to the victim as part of the criminal sentence without requiring the victim to proceed in a civil action against the drunken driver. SDCL 22-6-2 and 23A-28. This restitution order may be enforced by wage assignments, SDCL 23A-27-25.1, or revocation of a suspended portion of a sentence, SDCL 23A-27-25.5. In addition, the order of restitution becomes a docketed lien which can be enforced as any other statutory lien. SDCL 23A-27-25.6.

While these are remedies, they contain limits and conditions which may riot guarantee full recovery to all victims in all cases. However, a constitutional rejection of SDCL 35-11-1 and 35-4-78 does not guarantee a full recovery as it is dependent on the financial condition of the bar and the extent (if any) of the insurance coverage it may possess. . See also Baatz, 426 N.W.2d at 307 (Miller, J. dissenting); Walz, 327 N.W.2d at 122, 123-24 (Wollman, J. concurring specially);and Griffin, 245 N.W.2d at 486-87 (Dunn, C.J., dissenting). .

We do not address the due process issue as it was not raised before the trial court. City of Watertown v. Dakota, Minn. & E. R.R. Co., 1996 SD 82 ¶ 26, 551 N.W.2d 571, 577.