South Dakota Trucking Ass'n, Inc. v. South Dakota Dept. of Transp., Nos. 13334

• Court: Supreme Court of South Dakota
• Writing for the Court: DUNN; The secretary of the department of transportation or his designee or any county treasurer may issue a written or telegraphic permit for a fee or fees to be fixed
• Citation: 305 N.W.2d 682
• Parties: SOUTH DAKOTA TRUCKING ASSOCIATION, INC., a South Dakota Corporation; United Parcel Service, Inc., an Ohio Corporation; American Freight Systems, Inc., a Delaware Corporation; Dan Dugan Transport Company, a South Dakota Corporation; Barber Transportation Company, a South Dakota Corporation; Campbell Supply Company, a South Dakota Corporation; L. G. Everist, Inc., an Iowa Corporation; Universal Transport, Inc., a South Dakota Corporation, Plaintiffs and Appellees, v. SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION; Eugene L. Rowen, in his capacity as Secretary of the South Dakota Department of Transportation; South Dakota State Transportation Commission; Robert Appelwick, Patrick Beckman, Roger Bernard, James Doyle, Donald Jacobsen, Jerry Leidholt, James L. Rothstein, James H. Sharp, Jerry Shoener and Gene Grossenburg, in their capacity as members of the South Dakota State Transportation Commission, Defendants and Appellants.
• Docket Number: 13341,Nos. 13334
• Decision Date: 06 May 1981

Page 682

305 N.W.2d 682 SOUTH DAKOTA TRUCKING ASSOCIATION, INC., a South Dakota
Corporation; United Parcel Service, Inc., an Ohio
Corporation; American Freight Systems, Inc., a Delaware
Corporation; Dan Dugan Transport Company, a South Dakota
Corporation; Barber Transportation Company, a South Dakota
Corporation; Campbell Supply Company, a South Dakota
Corporation; L. G. Everist, Inc., an Iowa Corporation;
Universal Transport, Inc., a South Dakota Corporation,
Plaintiffs and Appellees,
v.
SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION; Eugene L. Rowen,
in his capacity as Secretary of the South Dakota Department
of Transportation; South Dakota State Transportation
Commission; Robert Appelwick, Patrick Beckman, Roger
Bernard, James Doyle, Donald Jacobsen, Jerry Leidholt, James
L. Rothstein, James H. Sharp, Jerry Shoener and Gene
Grossenburg, in their capacity as members of the South
Dakota State Transportation Commission, Defendants and
Appellants. Nos. 13334, 13341. Supreme Court of South Dakota. Argued March 18, 1981.
Decided May 6, 1981.

Page 683

Robert L. Thomas of May, Johnson, Doyle & Becker, Sioux Falls, for plaintiffs and appellees.

Carl W. Quist, Asst. Atty. Gen., Pierre, for defendants and appellants; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

DUNN, Justice.

This is an appeal from a declaratory judgment and writ of mandamus entered in favor of appellees. We affirm.

The facts of this case are quite simple. On October 29, 1975, the South Dakota State Transportation Board (Board) adopted rules that allowed for vehicles with a gross weight of up to 95,000 pounds to be operated upon the interstate highway system. ARSD 70:01:04:41-45. Prior to that date the maximum weight limit was 80,000 pounds. Permits were required to operate at these heavier weights. These permits were granted by issuing single-trip permits in books of ten. On March 10, 1978, the Board adopted another resolution approving a one-year test to allow motor carriers to operate three-unit combinations with a gross vehicle weight of 129,000 pounds. This also required special permits, which were issued in books of ten single-trip permits.

On June 19, 1980, the Federal Highway Administration (FHWA) notified the Board that continued issuance of single-trip permits for loads over 80,000 pounds on the interstate highways would result in its recommending to the United States Secretary of Transportation that future federal interstate funding apportionments to South Dakota be withheld in accordance with 23 U.S.C. § 127. This was based on FHWA's determination that South Dakota law as of July 1, 1956, did not allow the issuance of permits for weights over 80,000 pounds and therefore violated 23 U.S.C. § 127, which states that federal funds can be withheld. ¹

Page 684

The Board capitulated to the FHWA's demands and ceased issuing permits to appellees. Appellees thereafter sought a declaratory judgment and writ of mandamus to require the continuation of the issuance of these permits. The trial court held for appellees.

Two issues are raised on appeal: (1) Whether mandamus is a proper remedy; and (2) whether appellants were authorized under the laws in effect on July 1, 1956, to issue such single-trip permits.

Generally, for a party to be granted a writ of mandamus " '... he must have a clear legal right to have a service performed by the party to whom he seeks to have the writ directed.' " Bandy v. Mickelson, 73 S.D. 485, 488, 44 N.W.2d 341, 342 (1950), quoting from Bailey v. Lawrence, 2 S.D. 533, 537, 51 N.W. 331, 332 (1892). If the service or action which one seeks to compel is discretionary the proper exercise of such discretion will not be interfered with. This is not to say that there are no checks on such discretion.

"... The discretion must be exercised under the established rules of law, and it may be said to be abused within the foregoing rule where the action complained of has been arbitrary or capricious, or based on personal, selfish, or fraudulent motives, or on false information, or on a total lack of authority to act, or where it amounts to an evasion of a positive duty, or there has been a refusal to consider pertinent evidence, hear the parties when so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which if adopted would be effective."

State v. Richards, 61 S.D. 28, 38-39, 245 N.W. 901, 905 (1932) (citations omitted). Moreover, an erroneous view of the law is sufficient to constitute an abuse of discretion. Richards, supra.

We must therefore ascertain whether the issuance of these permits is a discretionary function. If it is merely ministerial, mandamus will lie. If it is discretionary, we must further ascertain whether the Board abused its discretion and if so, mandamus will lie; otherwise, mandamus is improper.

The issuance of permits usually is a discretionary function. 52 Am.Jur.2d Mandamus § 208 (1970). See generally McAthie v. Frieberg, 66 S.D. 192, 280 N.W. 871 (1938). Appellees concede this. Also, the legislature, in enacting SDCL 32-22-38, recognized this as being discretionary, as do the administrative rules promulgated thereunder. ²

We agree that the issuance of such permits is discretionary. Therefore, we must determine whether the Board abused its discretion in one of the manners set out in Richards, supra.

Page 685

Appellees' claim for the issuance of a writ of mandamus either rises or falls upon the theory that appellants abused their discretion in refusing to issue these permits. Appellees' argument must, in our view, rest upon whether the appellants' conduct was prompted by a misconstruction of the law involved to such a degree as to render it an arbitrary action and an abuse of discretion. Wood v. Waggoner, 67 S.D. 365, 293 N.W. 188 (1940). The answer to this question requires analysis of federal law and its relation to South Dakota law.

Under 23 U.S.C. § 127 we must examine the state laws in effect on July 1, 1956, to determine whether they allowed these maximum weights by special permit. In making this determination we are guided by State ex rel. Dick Irvin, Inc. v. Anderson, 164 Mont. 513, 525 P.2d 564 (1974). The Montana Court was faced with an identical factual setting and identical issues. Obviously...