State Highway Commission On Behalf Of State v. Wieczorek

• Decision Date: 22 December 1976
• Docket Number: 11569 and 11606,Nos. 11568,s. 11568
• Parties: The STATE HIGHWAY COMMISSION of the State of South Dakota, on Behalf of and in the name of the STATE of South Dakota, Plaintiff and Appellant, v. Oscar WIECZOREK and the Federal Land Bank of Omaha, Defendants and Respondents. The STATE HIGHWAY COMMISSION of the State of South Dakota, on Behalf of and in the name of the STATE of South Dakota, Plaintiff, Appellant, and Cross-Respondent, v. John B. GLAUS et al., Defendants, Respondents, and Cross-Appellants.
• Court: South Dakota Supreme Court

Page 369

248 N.W.2d 369

The STATE HIGHWAY COMMISSION of the State of South Dakota,

on Behalf of and in the name of the STATE of South

Dakota, Plaintiff and Appellant, v. Oscar WIECZOREK and the Federal Land Bank of Omaha,

Defendants and Respondents.

The STATE HIGHWAY COMMISSION of the State of South Dakota,

on Behalf of and in the name of the STATE of South

Dakota, Plaintiff, Appellant, and Cross-Respondent, v. John B. GLAUS et al., Defendants, Respondents, and Cross-Appellants.

Nos. 11568, 11569 and 11606.

Supreme Court of South Dakota.

Dec. 22, 1976.

Carl W. Quist and Gary F. Colwill, Asst. Attys. Gen., Pierre, for plaintiff, appellant, and cross-respondent.

J. L. Morgan, Morgan & Fuller, Mitchell, A. P. Fuller, Kellar, Kellar, Fuller, Amundson & Furze, Lead, for defendants and respondents, Oscar Wiecozorek and The Federal Land Bank of Omaha, and defendants, respondents, and cross- appellants, John B. Glaus, Florine W. Glaus, and The Northwestern National Bank of Sioux Falls.

TALBOTT, Circuit Judge.

These condemnation proceedings were initiated in Brule County, South Dakota, by the plaintiff on April 27, 1973, under the then operative provisions of SDCL 31--29--12 and 31--29--14 which authorized the state 'to acquire and improve strips of land necessary for the restoration, preservation and enhancement of scenic beauty within and adjacent to federal aid highways of this state * * *.' Two motions brought by the defendants to dismiss the proceedings were ruled on adversely to the defendants by the then trial judge, Thomas L. Anderst. The defendants sought permission to file intermediate appeals with the Supreme Court of South Dakota, which appeals were denied on May 1, 1974. Following the remand to the circuit court of Brule County for further proceedings, the South Dakota Legislature enacted Ch. 204, S.L.1974, which became effective on July 1, 1974. This legislation deleted from SDCL 31--29--12 and 31--29--14 any references to 'for the restoration, preservation and enhancement of scenic beauty within and adjacent to (federal aid) highways (of this state).'

Motions were again filed by the defendants seeking to dismiss the condemnation proceedings in these cases principally on the grounds that the legislative enactment had terminated the authority of the plaintiff to condemn land for the stated purpose. On July 29, 1974, the trial judge entered his orders dismissing the separate condemnations, and appeals were perfected by the plaintiff on October 7, 1974.

Defendants in the Glaus action perfected a cross appeal, primarily on the grounds that the trial court erred in not dismissing the condemnation proceedings on the basis of constitutional grounds, that the trial court lacked jurisdiction of the subject matter, and further that the original petition failed to state a claim upon which relief could be granted.

At oral argument, the principal issues discussed revolved around the questions as to whether or not:

1. The provisions of SDCL 31--8--7 would operate to effect the survival of the plaintiff's action, notwithstanding the 1974 law changes.

2. The provisions of SDCL 31--19--23, pertaining to the filing of a declaration of taking, operated to make the provisions of SDCL 31--19--1 to 31--19--20, inclusive, applicable to the taking authorized by the former provisions of SDCL 31--29--12 and 31--29--14.

3. The provisions of SDCL 2--14--18 (South Dakota's saving clause) operate to permit the survival of the condemnation action, notwithstanding the enactment of Ch. 204, S.L.1974.

That SDCL 31--8--7 would operate to permit the survival of this action cannot be seriously contended. It provides:

'For the purposes of this chapter, the highway authorities of the state, counties, cities or towns may acquire private or public property rights for controlled-access facilities and service roads, including rights of Access, air, view, and Light, by gift, devise, purchase, or condemnation in the same manner as such units are now or hereafter may be authorized by law to acquire such property or property rights in connection with highways and streets within their respective jurisdictions.' (emphasis supplied)

It would indeed be strained construction to consider that the words 'view' and 'light' were synonymous with the former provisions of SDCL 31--29--12 and 31--29--14, authorizing acquisition by the plaintiff of strips of land 'necessary for the restoration, preservation and Enhancement of scenic beauty within and adjacent to federal aid highways of this state.' (emphasis supplied) Also, it appears from the original petitions of the plaintiff, and particularly from Exhibits 'A' thereof, that the taking intended by the state was specifically brought under the provisions of SDCL 31--29--12 and 31--29--14 'for the restoration, preservation and enhancement of scenic beauty.'

Inasmuch as our laws since March 14, 1963, have authorized the vesting in the state of title interest following the filing of a declaration of taking in certain condemnation proceedings (see SDCL 31--19--23 et seq.), we must determine if this particular procedure was available to the state in these actions as the plaintiff vigorously contends.

At the time the legislature enacted Ch. 85, S.L.1966, now codified as SDCL 31--29--12, 31--29--13 and 31--29--14, authorizing acquisition of land 'for the restoration, preservation and enhancement of scenic beauty,' the laws pertaining to the filing of a declaration of taking were not codified but appeared as Ch. 195, S.L.1963. When it enacted Ch. 85, S.L.1966, the legislature specifically directed that: 'Such acquisition may be by gift, purchase, exchange, or by condemnation pursuant to the procedures provided by either SDC 1960 Supp. 28.13A for the condemnation of real property by the State Highway Commission, or SDC 1960 Supp. 37.40,' neither of which latter citations provided for the filing of a declaration of taking with consequent immediate vesting in the state of the title interest.

Counsel for the plaintiff would have us now engage in an exercise of statutory construction so as to make available to it the vesting provisions of the 1963 law. It is a well founded legal principle that when the language of a statute is clear, certain and unambiguous, there is no occasion for construction and the court's only function is to declare the meaning of the statute as clearly expressed in the statute. Kalmbach v. City of Mobridge, 1964, 81 S.D. 158, 132 N.W.2d 293.

It is to be presumed that the legislature had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of condemnation. 82 C.J.S. Statutes § 316, at p. 541.

By language which we believe to be clear and free from doubt, the legislature by its 1966 enactment directed that certain specified condemnation procedures should be followed and did not authorize the use of a declaration of taking with immediate vesting for the acquisitions to be made under the 1966 scenic beauty law.

It follows then that the plaintiff's use in these proceedings of the declaration of taking under the 1963 law was without authority of law and it must fail, and the state cannot be said to have a vested right in these proceedings brought to condemn land for the purposes set forth in SDCL 31--29--12.

In its appeals, the plaintiff further contends that its actions, having been commenced prior to the changes effected by Ch. 204, S.L.1974, in SDCL 31--29--12 and 31--29--14, are preserved by the operation of SDCL 2--14--18, South Dakota's saving clause. We do not agree.

It is general basic law that the effect of the repeal of a statute, where neither a saving clause within the repealing statute itself nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute which, except as to proceedings passed and closed, is considered as if it had never existed. See Hutton v. Autoridad Sobre Hogares De La Capital, 1948, D.C.P.R., 78 F.Supp. 988, 990.

In 82 C.J.S. Statutes § 434, at page 1008, it is stated:

'The general rule against the retrospective construction of statutes does not apply to repealing acts, which, in the absence of a saving clause or other clear expression of intention, are generally to be construed retrospectively. The repeal of a statute has the effect, except as to transactions passed and closed, of blotting it out as completely as if it had never existed, and of putting an end to all proceedings under it, as discussed infra § 439. Every right or remedy created wholly by statute subsequently repealed falls with the repeal of the act which created it.'

82 C.J.S. Statutes § 439, at page 1012, states:

'As a general rule the repeal of a statute without any reservation takes away all remedies given by the repealed statute and defeats all actions and proceedings pending under it at the time of its repeal. The rule is especially applicable to the repeal of statutes creating a cause of action, providing a remedy not known to the common law, or conferring jurisdiction where it did not exist before, and abates proceedings pending, even after judgment but before the entry thereof, or pending on appeal, as discussed in Appeal and Error § 1841. A suit the continuance of which is dependent on the statute repealed stops where the repeal finds it * * *.'

Thus, it can be said that the general rule is that the repeal of a statute cancels an action brought pursuant to that statute unless the action is permitted to survive by the operation of a saving clause or by the vesting of a right under the statute.

South Dakota's saving clause statute is contained in the provisions of SDCL 2--14--18 which provides:

'The repeal of any statute by the Legislature shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute unless...