Brenna v. Hjelle

• Decision Date: 19 September 1968
• Docket Number: No. 8474,8474
• Citation: 161 N.W.2d 356
• Parties: Ed BRENNA, Henry Shane, and William Block, as the Commissioners of the Grand Forks County Drainage Board, Plaintiffs and Respondents, v. Walter R. HJELLE, as the Commissioner of the North Dakota State Highway Department, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 356

161 N.W.2d 356

Ed BRENNA, Henry Shane, and William Block, as the Commissioners of the Grand Forks County Drainage Board, Plaintiffs and Respondents, v. Walter R. HJELLE, as the Commissioner of the North Dakota State Highway Department, Defendant and Appellant.

Civ. No. 8474.

Supreme Court of North Dakota.

Sept. 19, 1968.

Rehearing Denied Oct. 15, 1968.

Syllabus by the Court

1. In attempting to determine the meaning of two sections of our statutes which originally were a part of the same legislative enactment, a construction should be adopted, if possible, which will give meaning to each word, clause, and sentence in the statutes. For reasons stated in the opinion, the provisions of Section 61--21--32, North Dakota Century Code, are held not to apply to the obligation of the State Highway Department of making the necessary openings and of building suitable culverts and bridges necessary to run a drain across a State highway, as required by Section 61--21--31.

2. Article 56, Amendments to the North Dakota Constitution, which provides that revenue from gasoline and other motor fuel excise and license taxation and motor vehicle registration and license taxes, after deduction of cost of administration and collection and statutory refunds, shall be appropriated and used solely for the construction, reconstruction, repair, and maintenance of public highways, does not prohibit the use of such moneys for the construction and maintenance of openings through a highway necessary to run a drain across the highway, as provided by Section 61--21--31, North Dakota Century Code, or for the building and keeping in repair of culverts and bridges required for such purposes.

3. Bridges and culverts constructed and maintained under the provisions of Section 61--21--31 are a part of the public highways, and moneys spent for such purposes are not spent in violation of the provisions of Article 56, Amendments to the North Dakota Constitution.

Stokes, Vaaler, Gillig & Warcup, Grand Forks, for plaintiffs and respondents.

Helgi Johanneson, Atty. Gen., and Vernon R. Pederson, Special Asst. Atty. Gen., Bismarck, for defendant and appellant.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, amicus curiae.

STRUTZ, Justice, on reassignment.

The Board of Drainage Commissioners of Grand Forks County established Grand Forks County Drain No. 13a in Levant Township, Grand Forks County. The drainage ditch, as laid out, crossed U.S. Highway No. 81. The State Highway Department was notified that it was necessary to install a bridge or culvert where the drain crosses the highway, but the Highway Department refused to provide such bridge or culvert on the ground that Section 61--21--31, North Dakota Century Code, does not require the department to pay such costs; that if this section is interpreted as requiring payment by the Highway Department, however, such statute is invalid in that it violates the provisions of Article 56 of the Amendments to the North Dakota Constitution.

Section 61--21--31, so far as it is pertinent to this action, provides:

'Drains may be laid along, within the limits of, or across any public road or highway, but not to the injury of such road. In instances where it shall be necessary to run a drain across such highway, the state highway department, board of county commissioners, or the board of township supervisors, as the case may be, when notified by the board to do so, shall make necessary openings through such road or highway, and shall build and keep in repair all suitable culverts or bridges at its own expense, as provided under the applicable provisions of section 61--21--32. * * *'

Article 56 of the Amendments to the Constitution of the State of North Dakota, which the appellant contends is being violated by the above statute, reads as follows:

'1. Revenue from gasoline and other motor fuel excise and license taxation, motor vehicle registration and license taxes, except revenue from aviation gasoline and unclaimed aviation motor fuel refunds and other aviation motor fuel excise and license taxation used by aircraft, after deduction of cost of administration and collection authorized by legislative appropriation only, and statutory refunds, shall be appropriated and used solely for construction, reconstruction, repair and maintenance of public highways, and the payment of obligations incurred in the construction, reconstruction, repair and maintenance of public highways.'

As indicated, the appellant makes two contentions. First, he argues that Section 61--21--31 of the North Dakota Century Code does not require the Highway Department to pay for the costs in issue here because that section says that the respective agencies shall make the necessary openings, etc., at their own expense, 'as provided under the applicable provisions of section 61--21-- 32,' and that that section does not make any provision for the Highway Department to pay any part of those costs. The appellant further contends that, even if the cost of such culverts or bridges is to be paid by the Highway Department, highway moneys cannot be used for such purposes because the building of such culverts and bridges would not be beneficial to the highway, and the spending of highway funds for such purposes would be a violation of Article 56 of the Amendments to the North Dakota Constitution.

The trial court entered judgment for the plaintiffs, and the defendant has appealed to this court, demanding trial de novo.

We find the first contention of the appellant to be without merit. Section 61--22--31 provides that where it shall be necessary to run a drain across a State highway, the State Highway Department, when notified by the board to do so, shall make necessary openings through such highway and shall build and keep in repair all suitable culverts and bridges at its own expense. A reading of Section 61--21--32 discloses that its provisions apply only to those cases where a drain crosses private land or a township or a county road. It does not even mention State highways or the State Highway Department. This section covers two situations, the first part providing that the board of drainage commissioners shall pay all expenses where it constructs a bridge or a culvert to furnish passage of a drain from one part to another of a private farm or tract of land, and the second part dealing with the participation in the payments to be made when such drainage system intersects any part of a township or county highway. Nowhere does it provide for payment of the expense where the drain crosses a State highway. Section 61--21--31, however, does provide that, in such event, suitable culverts and bridges shall be provided at the expense of the State Highway Department. We therefore construe Section 61--21--32, upon which the appellant relies, as not applying to a situation where a drain crosses a State highway.

In arriving at this result, we have applied the rule which was announced in Grabow v. Bergeth, 59 N.D. 214, 229 N.W. 282 (1930), where we held that in determining the meaning of a statute a construction should be adopted, if possible, that will give meaning to every word, clause, and sentence in the enactment. Both Section 61--21--31 and Section 61--21--32 originally were portions of the same legislative enactment. Thus both of them must be read together and, if possible, given meaning. In doing this, we construe the provisions of Section 61--21--32 as not applying to the provisions of Section 61--21--31, requiring the State Highway Department to...