Bryant v. Butte County, 16802

• Decision Date: 25 April 1990
• Docket Number: No. 16802,16802
• Parties: Greg BRYANT, Floyd Wennberg, and Belle Fourche Irrigation District, Plaintiffs and Appellants, v. BUTTE COUNTY, A Political Subdivision of South Dakota, and Butte County Commissioners: Maude Kendrick, Kenneth Kudlock, Francis Walton, Glen Wahlfeldt, in their Representative Capacities, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 467

457 N.W.2d 467

Greg BRYANT, Floyd Wennberg, and Belle Fourche Irrigation District, Plaintiffs and Appellants, v. BUTTE COUNTY, A Political Subdivision of South Dakota, and Butte County Commissioners: Maude Kendrick, Kenneth Kudlock, Francis Walton, Glen Wahlfeldt, in their Representative Capacities, Defendants and Appellees.

No. 16802.

Supreme Court of South Dakota.

Considered on Briefs April 25, 1990.

Decided June 6, 1990.

Kenneth E. Barker of Quinn, Day & Barker, Belle Fourche, for plaintiffs and appellants.

Allen G. Nelson and Mark F. Marshall of Bangs, Mc Cullen, Butler, Foye & Simmons, Rapid City, for defendants and appellees.

MORGAN, Justice.

Belle Fourche Irrigation District (District) appeals a judgment denying issuance of a writ of mandamus against Butte County, a political subdivision of South Dakota, and Butte County Commissioners: Maude Kendrick, Kenneth Kudlock, Francis Walton and Glen Wahlfeldt, in their representative capacity (collectively referred to as County). We affirm in part and reverse and remand in part.

This litigation centers on who should maintain and repair eight bridges situated on section-line highways designated in the County's secondary highway system. County maintained the bridges in the ordinary course of maintaining the highways until about 1983, when it was decided that it could no longer afford to care for these bridges due to dwindling resources and sought to turn their maintenance over to the District. District declined on the grounds that the bridges belonged to County and, together with two landowners, commenced this action.

Between 1878 and 1892, section-line highways were surveyed and platted in the county. A little over twelve years later in 1905, the United States Bureau of Reclamation (Bureau) began construction of the Belle Fourche Irrigation Project (Project). In constructing these works, Bureau found it necessary to construct many bridges to span the project waterways so as not to cut off public rights-of-ways.

The trial court found that the eight bridges were constructed by the Bureau in the course of the construction of the Project; that Bureau turned over operation and maintenance of the Project to District in 1949; and, that the Bureau still owned the bridges, the care and maintenance for which District was responsible. The trial court then denied mandamus upon the grounds that a decision not to repair the bridges was a discretionary act, not susceptible to mandamus and that District had an adequate remedy at law.

District raises the following issues:

(1) Whether the trial court was clearly erroneous in finding that the eight bridges were owned by Bureau and through contract, District was responsible for care and maintenance of these structures; and

(2) Whether the trial court erred as a matter of law in determining that Butte County's decision not to repair the bridges was a discretionary act not susceptible to mandamus and, further, that mandamus was inappropriate because District had an adequate remedy at law.

For reasons which will hereafter become apparent, we will first discuss District's second issue, the propriety of mandamus. We note our standards of review in this case. As to the factual findings made by the trial court, we review them under the clearly erroneous standard. Jankord v. Jankord, 368 N.W.2d 571, 572 (S.D.1985); SDCL 15-6-52(a). More important, "... the credibility of witnesses and weight to be accorded their testimony and the weight of evidence is for the trial court." Insurance Agents, Inc. v. Zimmerman, 381 N.W.2d 218, 219 (S.D.1986). As to any conclusions of law, they are reviewed under the error as a matter of law standard. Wefel v. Harold J. Westin and Associates, Inc., 329 N.W.2d 624 (S.D.1983). And, since the decision as to who should actually pay for and repair the bridges involves interpretation of statutes, we may review that portion of the trial court's decision de novo. Brown v. Egan Consol. School D. 50-2, 449 N.W.2d 259, 260 (S.D.1989). With these standards in mind, we proceed to District's mandamus issue.

Very correctly, the trial court did not deny relief by mandamus upon the grounds of ownership of the bridges, but rather, the trial court denied mandamus on the grounds that County's duty to repair county secondary highways was a discretionary function not subject to mandamus and that plaintiffs had an adequate remedy at law. Therein lies the error.

Two statutes spell out the duty of county commissioners with regard to secondary roads in the county.

SDCL 31-12-19 first provides:

It shall be the duty of the board of county commissioners to maintain properly and adequately the county highway system within the county by contract or day labor on all or different portions of the same as the board of county commissioners may deem most expedient, and to maintain any secondary highways according to any agreement made by it in consideration of federal aid received for construction and improvement of such highways. (Emphasis added.)

While County argues that the phrase "as the board of county commissioners may deem most expedient" gives the commissioners the discretion to choose which roads they repair, we believe this selective reading from the statute misses the point. The phrase merely modifies the county's choice to use contract or day labor on its roads. The "shall" and "duty" language mandates the county's duty to "properly and adequately" maintain the county roads, thus making it clear that the county's duty to repair the road is ministerial. The statutory mandate could not be met if the commissioners are allowed to pick and choose which roads to repair.

This reading is consistent with our cases on statutory interpretation. " 'It is a well-recognized rule of statutory construction that, where an affirmative direction is followed by a negative or limiting provision, the negative or limiting clause renders the statute mandatory.' " Rueb v. Lehmann, 73 S.D. 545, 546, 45 N.W.2d 463 (1950) (citation omitted). Moreover, the word "shall" is generally regarded as a mandatory provision. Dunker v. Brown County Board of Ed., 80 S.D. 193, 198, 121 N.W.2d 10, 14 (1963). A statute is considered mandatory especially when giving it a permissive connotation would render the law ineffective. Application of Megan, 69 S.D. 1, 5 N.W.2d 729 (1942).

The legislature left no room for doubt and not only mandated the county's obligation via the word "shall," but also defined the level of maintenance with the words "properly and adequately." If this statute is applied in the permissive connotation, it has virtually no effect. "In construing a statute, this court looks at the intention of the lawmakers as expressed in the plain meaning and effect of the words and phrases used in the statute." Union Insurance Co. v. Farmland Ins. Co., 389 N.W.2d 820, 821 (S.D.1986). The intent of a statute must be derived from the statute as a whole, from its language, and by giving it its plain, ordinary and popular meaning. American Rim & Brake, Inc. v. Zoellner, 382 N.W.2d 421 (S.D.1986).

The mandatory nature of this obligation is reiterated in SDCL 31-12-26, wherein the legislature stated a county's obligation as to secondary roads thusly:

It shall be the duty of the board of county commissioners and county superintendent of highways in organized counties, to construct, repair, and maintain all secondary roads within the counties not included in any city, incorporated town, or organized civil township. (Emphasis added.)

It is undisputed that the roads in question are not part of any city, incorporated town, or organized civil township.

In addition to reliance on statutory interpretation, we can look to our test for whether a government official's actions were ministerial or discretionary as recently reiterated in Gasper v. Freidel, 450 N.W.2d 226, 230 (S.D.1990).

(1) The nature and importance of the function that the officer is performing....

(2) The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of a coordinate branch of government....

(3) The extent to which the imposition of liability would impair the free exercise of his discretion by the officer....

(4) The extent to which the ultimate financial responsibility will fall on the officer ...

(5) The likelihood that harm will result to members of the public if the action is taken....

(6) The nature and seriousness of the type of harm that may be produced....

(7) The availability to the injured party of other remedies and other forms of relief.

Using those criteria, we think that the maintenance of the secondary roads clearly falls within the ministerial category.

While all duties of county commissioners are important, this particular function of maintaining secondary roads has been twice ascribed to them by the legislature. We are not passing judgment on another branch of government, but merely requiring that Butte County Commissioners carry out their duty so prescribed by the legislature. The discretionary function, to use contractors or day labor, remains unimpaired. For reasons which we shall hereafter explain, no financial responsibility will fall on either the commissioners or Butte County. Rather than harm befalling on the public if the action is mandated, the public will be protected by having safe bridges; whereas, if the bridges are not repaired, there is the potential for serious harm to the public crossing any of these structures.

County argues that SDCL 46-8-10 spells out the citizens' adequate relief wherein it provides:

The owner of any works for application of water to beneficial use which may prevent reasonable access to lands crossed or...