Verry v. City of Belle Fourche
| Decision Date | 28 July 1999 |
| Docket Number | No. 20714.,20714. |
| Citation | 598 N.W.2d 544,1999 SD 102 |
| Parties | Darlene VERRY, Plaintiff and Appellee, v. CITY OF BELLE FOURCHE, a municipal corporation, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Leroy Hill, Belle Fourche, attorney for plaintiff and appellee.
Barton R. Banks of Banks, Johnson, Colbath & Kerr, Rapid City, attorneys for defendant and appellant.
Thomas H. Frieberg of Frieberg, Rudolph & Nelson, Beresford, attorneys for Amicus South Dakota Municipal League.
[¶ 1.] In this appeal we affirm the circuit court and hold that the statutory scheme does not permit a municipality to mandate involuntary annexation as a condition to providing city water and sewer services.
[¶ 2.] Although Verry lives outside the city limits of Belle Fourche, her home is within 200 feet of City's sewer and water mains. She claims that in December 1997 the South Dakota State Plumbing Commission cited her and gave her 21 days to correct certain violations. Verry asserted at oral arguments and in her brief that the City engineer was the individual who reported the alleged violations to the State. Because Verry was not connected to City's water or sewer services, she requested that City contract with her for such services. City agreed, but conditioned its agreement upon Verry's petitioning for annexation into City. Upon her refusal to file an annexation petition, City refused to connect her to its services.
[¶ 3.] In February 1998, Verry brought suit against City seeking, among other things, connection to City's services without the condition of annexation. Having agreed that no genuine issues of material fact were in dispute, the parties consented to having the case decided on cross motions for partial summary judgment. The trial court granted Verry's motion on the count of her complaint, which alleged that City had no right to require annexation as a condition for Verry's connection to City's services.
[¶ 4.] City moved for reconsideration and, in the alternative, clarification of the trial court's decision. Following a hearing on that motion, the court vacated its prior judgment and reentered a judgment in Verry's favor.
[¶ 5.] City appeals the trial court's granting of summary judgment and raises the following issues:
[¶ 6.] The issue before us is strictly a matter of law, which this Court reviews de novo. Hamerly v. City of Lennox Bd. of Adjustment, 1998 SD 43, ¶ 10, 578 N.W.2d 566, 568 (citing Peters v. Spearfish ETJ Planning Comm'n, 1997 SD 105, ¶ 5, 567 N.W.2d 880, 883 (citations omitted)).
[¶ 7.] 1. City may not require Verry to petition for annexation under SDCL 9-4-1 as a condition to providing city water and sewer services under SDCL 9-47-28 and SDCL 9-48-53.
[¶ 8.] SDCL 9-47-28 and SDCL 9-48-53 govern municipal water and sewer systems. SDCL 9-47-28 provides in part:
Every building in which plumbing fixtures are installed shall be connected to a public water supply system if available. A public water system is available to a premise used for human occupancy if the property line of such premise is within two hundred feet of such system. A municipality may purchase, lease with purchase option, lease or otherwise acquire from the owners thereof, any preexisting private wells located within the municipality.
SDCL 9-48-53, which refers to sewer systems, has nearly identical language.1
[¶ 9.] City claims that the statutes place the burden on Verry to ensure that her property is connected to a public water and sewer supply system. It further argues that SDCL 9-4-12 provides the means for her to obtain the benefit of such services, and that it may require her to petition for annexation under that statute prior to providing her with its services.3 We find these arguments to be without merit.
[¶ 10.] When interpreting SDCL 9-47-28 and SDCL 9-48-53, their words and phrases "must be given their plain meaning and effect." NSP v. South Dakota Dep't of Revenue, 1998 SD 57, ¶ 8, 578 N.W.2d 579, 581 (citing In re AT & T Information Systems, 405 N.W.2d 24, 27 (S.D.1987)). If the language of the statutes 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[s] as clearly expressed[.]'" Juttelstad v. Juttelstad, 1998 SD 121, ¶ 13, 587 N.W.2d 447, 450 (quoting Mid-Century Ins. Co. v. Lyon, 1997 SD 50, ¶ 9, 562 N.W.2d 888, 891 (citation omitted)).
[¶ 11.] In our view, the language of both statutes is clear, certain, and unambiguous. They clearly state the requirements for connection to City's services. They require buildings in which plumbing fixtures are installed to be connected to public water and sewer supplies, if the property line of the property on which such buildings are located is within 200 feet of the system. No other requirements need be met.
[¶ 12.] In addition, this Court has long recognized that "`when "shall" is the operative verb in a statute, it is given "obligatory or mandatory" meaning and effect.'" NSP, 1998 SD 57, ¶ 8, 578 N.W.2d at 581 (quoting Fritz v. Howard Twp., 1997 SD 122, ¶ 15, 570 N.W.2d 240, 242 (citations omitted)); see also SDCL 2-14-2.1 (). Here, the statutory language provides that the buildings "shall be connected." Thus, we conclude that such a statutory directive makes the procedure mandatory for both Verry and City; neither party retains the discretion to refuse connection to City's services.
[¶ 13.] Moreover, we find that the statutes do not require, nor even imply, that connection to City's services be conditioned on petitioning for annexation. Therefore, we are prevented from reading such a requirement into them. As this Court has previously stated, "`[t]he intent of the statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used.'" Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted)).
[¶ 14.] We find, therefore, that the clear language of the statutes requires both Verry and City to act. This action, however, cannot be conditioned upon Verry's filing of an annexation petition. Such a requirement is contrary to the statutory mandates. To read such a condition into the statutes would produce the absurd result that City cautions us to prevent. See Dahn, 1998 SD 36, ¶ 14,576 N.W.2d at 539. Accordingly, we find that summary judgment was properly granted.
[¶ 15.] 2. The trial court did not err when it required City to contract with Verry for city sewer and water services.
[¶ 16.] City claims that the trial court's order directing it to contract with Verry for sewer and water services grants her vested rights in the sewer system. It argues that our holding in Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915 (S.D.1988) prohibits such vested rights, and that it has the discretion to contract with Verry regarding these services. We disagree and find that City's reliance on Blue Fox Bar in support of its position is clearly misplaced.
[¶ 17.] In Blue Fox Bar, we held that a municipality was prohibited from granting vested rights in its sewer services.4 424 N.W.2d at 919. That holding continues to be true; however, it has no application to the present case.
[¶ 18.] Requiring Verry and City to contract for water and sewer services does not grant to her vested rights in such services. It only provides her with the means necessary to comply with the requirements of SDCL 9-47-28 and SDCL 9-48-53. As such, we find no error in the trial court's order.
[¶ 19.] Affirmed.
[¶ 20.] SABERS and AMUNDSON, Justices, concur.
[¶ 21.] KONENKAMP and GILBERTSON, Justices, concur in result.
[¶ 22.] Belle Fourche concedes that § 9-47-28 and § 9-48-53 compel Verry to hook up to the city's water and sewer systems. Thus, the city couches its appeal on whether it can require Verry to petition for annexation as a condition to connecting these systems. I agree that, assuming the statutes compel these connections, the city cannot force Verry to submit an annexation petition. Although Belle Fourche may be bound by its concession, whether cities are compelled to provide such services to nonresidents should remain open for future determination. In my view, the majority goes further than necessary in stating that these statutes require cities to hook up nonresidents to city services. To conserve water supplies, the Legislature simply required buildings with plumbing fixtures to be connected to existing city systems. It did not compel cities to provide water and sewer services to nonresidents. If we read § 9-47-28 and § 9-48-53 together with their companion statutes, we see that only city residents are entitled to such services.
[¶ 23.] First, the statutory scheme makes it obvious that only city residents must connect to city systems. For example, § 9-47-28 mandates that every building in which plumbing is installed shall be coupled to a public water supply if within 200 feet of such system. The same statute states that "[a] municipality may purchase... or otherwise acquire from the owners thereof, any preexisting private wells located within the municipality." SDCL 9-47-28 (...
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In Re: Ryan Eugene Meier Ssn/itin Xxx-xx-9709, Bankr. No. 10-40346
...See, e.g., Hagemann ex rel. Estate of Hagemann v. NJS Engineering, Inc., 632 N.W.2d 840, 843 (S.D. 2001); Verry v. City of Belle Fourche, 598 N.W.2d 544, 549 (S.D. 1999); Juttelstad v. Juttelstad, 587 N.W.2d 447, 450 (S.D. 1 998). That plain and ordinary meaning may be found in Black's Law ......