Moulton v. State, Nos. 14506

CourtSupreme Court of South Dakota
Writing for the CourtFOSHEIM; WOLLMAN, J., and WUEST; MORGAN; HENDERSON; MORGAN; HENDERSON
Citation363 N.W.2d 405
PartiesCalvin L. MOULTON, Herma Marsden, Franklyn Craft, R.C. Stensen, Harold Ramse, Kenneth Harrod, Mary Kuppinger Jordan, Adelaide M. Ward, and the South Dakota Cabin Owners Association, Inc.: on behalf of themselves and all other cabin owners with Custer State Park, Custer County, South Dakota, similarly situated, Plaintiffs and Appellees, v. The STATE of South Dakota; the South Dakota Department of Game Fish and Parks; the South Dakota Game, Fish and Parks Commission; and John Cimple, Robert Ingle, Walter Black, Owen Wipf, Harvey Thayer, and Robert Reder, individually, and in their capacity as members of the South Dakota, Game, Fish and Parks Commission, Defendants and Appellants.
Decision Date20 February 1985
Docket NumberNos. 14506,14519

Page 405

363 N.W.2d 405
Calvin L. MOULTON, Herma Marsden, Franklyn Craft, R.C.
Stensen, Harold Ramse, Kenneth Harrod, Mary Kuppinger
Jordan, Adelaide M. Ward, and the South Dakota Cabin Owners
Association, Inc.: on behalf of themselves and all other
cabin owners with Custer State Park, Custer County, South
Dakota, similarly situated, Plaintiffs and Appellees,
v.
The STATE of South Dakota; the South Dakota Department of
Game Fish and Parks; the South Dakota Game, Fish and Parks
Commission; and John Cimple, Robert Ingle, Walter Black,
Owen Wipf, Harvey Thayer, and Robert Reder, individually,
and in their capacity as members of the South Dakota, Game,
Fish and Parks Commission, Defendants and Appellants.
Nos. 14506, 14519.
Supreme Court of South Dakota.
Argued Oct. 23, 1984.
Decided Feb. 20, 1985.

Page 406

Patrick M. Ginsbach and Jane M. Farrell of Farrell, Farrell & Ginsbach, Hot Springs, for plaintiffs and appellees.

Mark A. Moreno and Craig M. Eichstadt, Asst. Attys. Gen., Pierre, for defendants and appellants; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

FOSHEIM, Chief Justice.

The State appeals from a summary judgment which in effect determined that the Game, Fish and Parks Commission (Commission) had no authority to terminate private cabin site permits in Custer State Park. We affirm in part and reverse in part.

The Commission granted Moulton et al., (cabin owners), a hearing regarding their permit renewal, and decided to allow the permits to terminate December 31, 1982. Cabin owners took, but abandoned, a direct appeal from that decision. This Declaratory Judgment action was brought in Custer County pursuant to SDCL 1-26-14. 1 The State first argues that the Custer County trial court lacked jurisdiction because the Commission's action was not a rule within the meaning of SDCL 1-26-1(7). See, Mills Wholesale Liquor Co. v. Zellmer, 298 N.W.2d 523, 525 (S.D.1980). In deciding this issue, we proceed with the following sequence: (1) Was the Commission's decision a rule? (2) If it was a rule, the Custer County court had jurisdiction under SDCL 1-26-1(7) and 1-26-14. (3) If not a rule, then the case should have been venued in Hughes County. Mills, supra. (4) If improperly venued, we must decide whether venue is jurisdictional. (5) If venue is jurisdictional, and the Commission's decision was not a rule, the case was improperly tried in Custer County. If venue is not jurisdictional, and the Commission's decision was not a rule, then the case was properly venued in Custer County because the State failed to request a change in the place of trial.

"A rule ... is the product of rule making and rule making is the part of the administrative process that resembles the legislature's enactment of a statute. Rule making is the issuance of regulations or

Page 407

the making of determinations which are addressed to indicated but unnamed and unspecified persons or situations." Id. at 526, quoting Fox v. Kneip, 260 N.W.2d 371, 75 (S.D.1977) cert. den. 436 U.S. 918, 98 S.Ct. 2264, 56 L.Ed.2d 759, appeal after remand, 294 N.W.2d 657 (S.D.1980); See also, SDCL 1-26-1(7). The Commission, exercising the discretionary power conferred on it by statute, decided not to renew the private cabin permits in Custer State Park. That is not the product of rule making or quasi-legislative action contemplated by the statute and our interpretative decisions. Fox, supra; State ex rel. Green v. Knight, 47 S.D. 224, 197 N.W. 159 (1924). The Custer County court did not, therefore, have jurisdiction as a matter of law.

Having decided there was no rule, we look to the Mills case. See, Mills, supra at 526. Absent a rule, SDCL 1-26-14 cannot provide the basis for venue in Custer County. Id. The declaratory judgment action must therefore come under SDCL ch. 21-24 and SDCL 15-6-57. Id. Accordingly, proper venue was in Hughes County pursuant to SDCL 15-5-2. 2 Id.

SDCL 15-5-2 is a general venue statute. We have consistently held that general venue statutes set the place of trial only, and do not confer jurisdiction. American Advertising Co. v. Dept. of Transportation, 280 N.W.2d 93 (S.D.1979); Putnam Ranches, infra; Meihak v. Schreckenghaust, 67 S.D. 603, 297 N.W. 122 (1941); Ott v. Cheney, 63 S.D. 524, 261 N.W. 204 (1935); Alderman v. NY Underwriters Ins. Co., 61 S.D. 284, 248 N.W. 261 (1933). The State did not demand a change of place of trial, as was done in Mills, supra. SDCL 15-5-10 provides that unless a defendant demands such a change, the action may be tried in the county chosen by the plaintiff. Putnam Ranches, Inc. v. Production Credit Assn., 271 N.W.2d 856 (S.D.1978). Thus, the State's jurisdiction argument fails.

The Commission next disputes the determination that it lacked authority to terminate cabin owners' permits. In 1919, the legislature created the Custer State Park Board and in 1921 authorized it to enter into cabin site permits or leases "to encourage the erection of summer cottages" in the Park. Subsequent legislation similarly encouraged the erection of summer cabins. In 1961, the legislature extended the authority of the Game, Fish and Parks Commission, (created in 1945), to grant permits and leases on land owned or controlled by it, (including the Custer State Park) and created a new power to grant easements. 1961 S.D.Sess.Laws ch. 114. The legislative policy of encouraging private cabins in Custer State Park, then codified as S.D.C. Sec. 55.4509 (1939) was left intact by the 1961 amendments.

In 1966, however, two statutes were enacted which signalled a policy modification. Section 1 of Chapter 68 "Amending Law Relating Powers and Duties of Game, Fish and Parks Commission and Director" provided:

1966 ch. 68 Section 1. That subsections (1), (3) and (6) of SDC 1960 Supplement 25.0106-1, as amended by Chapter 114 of the 1961 Session Laws and Chapter 108 of the 1965 Session Laws, be, and the same is hereby, amended to read as follows:

"(6) To grant easements, leases or permits on property which it owns or controls for public utilities, for agricultural purposes, for electrical power or telephone lines, towers for radio, TV or radar, for cabin sites, and for concessions, for the developments, operation or management of facilities to service

Page 408

the needs of the public." (Emphasis added).

This provision now appears as SDCL 41-2-26. The second law enacted was 1966 S.D.Sess.Laws Chapter 73; section 1 expressly repealed Chapter 55.45 of the South Dakota Code of 1939 and all amendatory acts thereof. See, Argo Oil Corp. v. Lathrop, 76 S.D. 70, 72 N.W.2d 431 (1955) (express repeal of a law occurs when it is literally declared by subsequent law). As noted, Sec. 55.4509 of the 1939 code contained the legislative policy of encouraging private cabin sites in Custer State Park.

The manifest intent of a statute must be derived from the statute as a whole, Herrmann v. Bd. of Comm. of the City of Aberdeen, 285 N.W.2d 855 (S.D.1980), from its language, State Theater Co v. Smith, 276 N.W.2d 259 (S.D.1979), and affording the language its plain, ordinary and popular meaning. Independent Community Bankers Association et al. v. State et al., 346 N.W.2d 737 (S.D.1984); Messersmith v. Stanga, 71 S.D. 88, 21 N.W.2d 321 (1946).

The history and plain language of SDCL 41-2-26 indicates a legislative intent to abandon the "encouragement" policy, in favor of a discretionary power in the Commission to grant or terminate cabin permits in Custer Park, as may best serve the public interest. Cabin owners' statutory interpretation, if adopted, would require the Commission not only to renew their permits but also potentially grant new permits, even though it failed to serve the public interest. This would defeat the purpose of the statute. See, Durr v. Hardesty, 76 S.D. 232, 76 N.W.2d 393 (1956); Western Surety Co. v. Mydland, 85 S.D. 172, 179 N.W.2d 3 (1970). A statutory grant of power includes authority to employ the means necessary to exercise that power. Board of Regents v. Carter, 89 S.D. 40, 228 N.W.2d 621 (1975). The Commission was accordingly within its delegated authority when it utilized the nonrenewable leases to terminate private cabin site permits in Custer State Park. Mills, supra; Fox v. Kneip, supra; State ex. rel. Green, supra. It likewise may in the future exercise its discretion to grant new cabin site leases so long as it serves the public needs.

We next consider whether the trial court erred in deciding that Kenneth Harrod did not have a valid ninety nine (99) year lease on his cabin site. It appears that a Mrs. Briggs originally had a ninety nine (99) year lease to his cabin site, but we fail to see that as relevant. All 1958, 1962, 1968 and 1973 leases, including Mr. Harrod's, contained provisions reserving to the Commission the right to cancel permits upon their expiration dates, if the Commission determined that the cabin site had a higher priority for public use other than as a private summer home site. 3

The 1978 written contract between cabin owners and the Commission called for expiration of permits in 1982. The first paragraph of the 1978 cabin permits provided "THIS PERMIT WILL NOT BE RENEWED--THE ABOVE FIVE YEAR TERM WILL CONCLUDE THE STATE'S POLICY OF ALLOWING PRIVATE SUMMER HOME SITES IN THE PARK." Paragraph 20 provided "It is agreed and understood that THIS PERMIT EXACTLY TERMINATES ON DECEMBER 31, 1982 AND IS NOT RENEWABLE AFTER THE EXPIRATION OF THIS TERM." The cabin owners, including Mr. Harrod, all signed a permit with this provision.

These new contracts supersede prior lease arrangements, see, South Hanson Lumber Company v. DeMoss, 253 Iowa 204, 111 N.W.2d 681 (1961), and any oral representations must yield to subsequent written contracts. Id.; See also, SDCL 53-8-7.

Page 409

The evidence does not support misconduct or duress as claimed. As we stated, the Commission was fully within its statutory authority in refusing to renew the private permits. Granted the cabin owners were not in a...

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11 practice notes
  • South Dakota Dept. of Transp. v. Freeman, No. 14969
    • United States
    • Supreme Court of South Dakota
    • August 1, 1985
    ...and accordingly blanch. See Krebs v. City of Rapid City, 364 N.W.2d 128, 134 (S.D.1985) (Henderson, J., dissenting); Moulton v. State, 363 N.W.2d 405, 410 (S.D.1985) (Henderson, J., dissenting); Eischen v. Minnehaha County, 363 N.W.2d 199, 204 (S.D.1985) (Henderson, J., dissenting); Byre v.......
  • Moulton v. State, Nos. 15373
    • United States
    • Supreme Court of South Dakota
    • September 9, 1987
    ...of record, exhibits and testimony, plus over 300 pages of briefs and accompanying appendices. Following our remand in Moulton v. State, 363 N.W.2d 405 (S.D.1985) (Moulton I ), the circuit court decided various legal questions presented to it. The following issues are presently before this C......
  • Krebs v. City of Rapid City, No. 14348
    • United States
    • Supreme Court of South Dakota
    • March 13, 1985
    ...over rights of individuals are Eischen v. Minnehaha County, 363 N.W.2d 199, 204 (S.D.1985) (Henderson, J., dissenting); Moulton v. State, 363 N.W.2d 405, 410 (S.D.1985) (Henderson, J., dissenting; Morgan, J., concurring in part, dissenting in part); Byre v. City of Chamberlain, 362 N.W.2d 6......
  • Craft v. Wipf, No. 86-5385
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 26, 1987
    ...court previously has ruled against the cabin owners, but in so ruling it did not address any constitutional issues. See Moulton v. State, 363 N.W.2d 405 (S.D.1985). Plaintiffs/appellees filed this lawsuit under 42 U.S.C. § 1983, alleging violations of their rights to due process and equal p......
  • Request a trial to view additional results
11 cases
  • South Dakota Dept. of Transp. v. Freeman, No. 14969
    • United States
    • Supreme Court of South Dakota
    • August 1, 1985
    ...and accordingly blanch. See Krebs v. City of Rapid City, 364 N.W.2d 128, 134 (S.D.1985) (Henderson, J., dissenting); Moulton v. State, 363 N.W.2d 405, 410 (S.D.1985) (Henderson, J., dissenting); Eischen v. Minnehaha County, 363 N.W.2d 199, 204 (S.D.1985) (Henderson, J., dissenting); Byre v.......
  • Moulton v. State, Nos. 15373
    • United States
    • Supreme Court of South Dakota
    • September 9, 1987
    ...of record, exhibits and testimony, plus over 300 pages of briefs and accompanying appendices. Following our remand in Moulton v. State, 363 N.W.2d 405 (S.D.1985) (Moulton I ), the circuit court decided various legal questions presented to it. The following issues are presently before this C......
  • Krebs v. City of Rapid City, No. 14348
    • United States
    • Supreme Court of South Dakota
    • March 13, 1985
    ...over rights of individuals are Eischen v. Minnehaha County, 363 N.W.2d 199, 204 (S.D.1985) (Henderson, J., dissenting); Moulton v. State, 363 N.W.2d 405, 410 (S.D.1985) (Henderson, J., dissenting; Morgan, J., concurring in part, dissenting in part); Byre v. City of Chamberlain, 362 N.W.2d 6......
  • Craft v. Wipf, No. 86-5385
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 26, 1987
    ...court previously has ruled against the cabin owners, but in so ruling it did not address any constitutional issues. See Moulton v. State, 363 N.W.2d 405 (S.D.1985). Plaintiffs/appellees filed this lawsuit under 42 U.S.C. § 1983, alleging violations of their rights to due process and equal p......
  • Request a trial to view additional results

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