Tripp County v. Department of Transportation

MILLER, Justice.

The issue in this appeal is whether a county continues to have the duty to repair and maintain a highway after it has been legislatively removed from the county highway system and placed on the state trunk highway system. We hold that it does not.

FACTS

In 1986, the South Dakota Legislature amended SDCL 31-4-169 by adding a section of highway in Tripp County, South Dakota (County) to the state trunk highway system (see 1986 S.D.Sess.L. ch. 236, § 1). This section of highway was originally constructed in 1949 with federal aid secondary funds and prior to the 1986 amendment had been maintained by County, pursuant to SDCL ch. 31-6.

After passage of the 1986 amendment, County advised the South Dakota Department of Transportation (DOT) that the highway was in immediate need of repair and that County would no longer be responsible for its maintenance and care. DOT, by letter from its counsel, advised County that it disclaimed any responsibility for the maintenance and repair of the highway because:

The Department of Transportation only constructs and maintains that part of the state trunk highway system it has funds available to handle. The Transportation Commission has the legal discretion to determine this. (This is similar to all the county and township section line highways that county commissioners and township supervisors determine not to construct or maintain.)
That part of the state trunk system added in Tripp County in the 1986 Session has not been put on the Department of Transportation construction or maintenance program for expenditure of federal and state highway funds as of this date.

County then commenced this declaratory judgment action seeking an adjudication that the responsibility for the maintenance and repair of the highway transferred from County to DOT by virtue of the 1986 legislation. Both parties moved for summary judgment. The circuit court granted summary judgment for DOT. In its memorandum decision,1 the trial court generally stated that the legislative enactments in SDCL Title 31, when read as a whole, do not require DOT to maintain and repair the added segment of highway until DOT constructs or improves it pursuant to SDCL 31-5-1 or exercises its discretion to do so under the option afforded by SDCL 31-5-2. We disagree and therefore reverse.

DECISION

County argues that transfer of the highway to the state trunk highway system also transferred responsibility for its maintenance and repair to DOT, citing Robinson v. Minnehaha County, 65 S.D. 628, 277 N.W. 324 (1938), which held that 1923 S.D.Sess.L. ch. 285 (the original legislative enactment of current SDCL 31-5-1, -2) relieved the counties of the duty to maintain and repair highways in the state trunk *475highway system. See also Cain v. Meade County, 54 S.D. 540, 223 N.W. 734 (1929). Moreover, County argues that it is prohibited from expending county road and bridge funds on the highway once it was placed on the state trunk system, pursuant to SDCL 31-5-14 and 31-11-30.

DOT argues that the trial court’s interpretation of SDCL 31-5-1 and -2 is correct. Additionally, DOT argues that because this highway was built with federal aid secondary funds (under the legislative predecessor to SDCL ch. 31-6) and considering this court’s prior holding in Bogue v. Clay County, 75 S.D. 140, 60 N.W.2d 218 (1953), County remains responsible for maintenance and repair of the highway despite its transfer to the state trunk highway system. In Bogue, we held that a county road built with federal aid is no less a county road for being built with such federal funds. However, Bogue does not address the situation arising in this case where the county road, although built with federal aid, has been transferred to the state trunk highway system. Irrespective of that, DOT argues that SDCL ch. 31-6 provides County with the responsibility to maintain and . repair the highway, supporting that argument further with SDCL 31-12-19.

There is no statute which specifically states that DOT automatically assumes responsibility for maintenance and repair of a highway when it is added to the state trunk highway system. This court’s decision, therefore, primarily must be premised upon an interpretation of the collective legislative enactments contained in SDCL Title 31, “Highways and Bridges.”

SDCL 31-5-1 provides:

The department of transportation shall maintain, and keep in repair all highways or portions of highways, including the bridges and culverts thereon, which highways have been constructed or improved by the department and are on the state trunk highway system. (Emphasis added.)2

Under this provision, DOT’s duty to maintain and repair a highway on the state trunk highway system clearly does not arise unless the highway was constructed or improved by DOT. DOT, therefore, takes the position that it merely has an option to maintain and repair this highway under SDCL 31-5-2.

SDCL 31-5-2, in giving DOT an option to maintain and repair a highway on the state trunk highway system in two instances, states:

The department of transportation may at its option, maintain and keep in repair such other portions of the state trunk highway system [1] which have not been constructed or improved by the department of transportation, or [2] the construction or improvement of which has not been paid for in whole or in part by state or federal aid. (Emphasis added.)

This section, however, does not afford DOT an option here because (1) the highway was not constructed or improved by DOT and (2) its construction was paid by federal aid.

Because neither SDCL 31-5-1 nor 31-5-2 apply here, we are left with a statutory hiatus. Therefore, in determining legislative intent, it is necessary for us to consider and analyze the salient statutory provisions of SDCL Title 31. We recognize that all of the statutory provisions must be read together in such a manner as are harmonious and workable. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180 (S.D.1986); see also Karlen v. Janklow, 339 N.W.2d 322 (S.D.1983); Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D.1982); Kinzler v. Nacey, 296 N.W.2d 725 (S.D.1980); Hot Springs Ind. School Dist. v. Fall River Landowners Ass’n, 262 N.W.2d 33 (S.D.1978); In re Collins, 85 S.D. 375, 182 N.W.2d 335 (1970).

In addition to those previously cited, we point to the following statutes:

Under SDCL 31-1-5 it is stated:

For the purpose of clarifying the duties and powers of the various governmental state agencies charged with *476the administration of the highways in South Dakota, the following definitions of highway systems shall be applicable:
(1) ‘State trunk system,’ the highways designated by statute to be controlled and supervised by the department of transportation;
(2) ‘County highway system,’ the highways designated by the board of county commissioners.... (Emphasis added.)

SDCL 31-4-1 perpetuates the state trunk highway system and, more importantly, SDCL 31-4-2 states:

All rights-of-way of the state trunk highway system, together with all appurtenance thereto, the right or interest in or to which was or is in any county shall be and the same are hereby transferred to and vested in the state of South Dakota for highway purposes. (Emphasis added.)

Further, under SDCL 31-4-14:

All marking, surveying, construction, repairing, and maintenance of the state trunk highway system shall be under the control and supervision of the department of transportation, and the department shall be charged with the administration of the laws relative thereto. (Emphasis added.)

Additionally, under SDCL 31-12-5: “The construction, improvement, maintenance, and repair of the county highway system, except as provided for state trunk highways shall be under the supervision of the county superintendent of highways....” (Emphasis added.)

We do not overlook or discount the provisions of SDCL ch. 31-6 dealing specifically with secondary roads paid for by federal aid secondary funds. SDCL 31-6-2 authorizes DOT to cooperate with the county commissioners in the selection of secondary roads and generally provides a system under which DOT acts as an agent between the counties and the federal government. Under SDCL 31-6-5 the jurisdiction and control of the highways so constructed remains with the county subject to the authority of DOT to supervise, control, and oversee construction of the project.

SDCL 31-6-7 provides:

Nothing in this chapter contained shall be construed to bind the state of South Dakota, or the department of transportation to pay the cost of maintenance of said projects when completed; it being the intention of this statute to place the maintenance cost of said projects upon the political subdivision under whose jurisdiction the highway is at the time said maintenance work is required.

Further, under SDCL 31-12-19:

It shall be the duty of the board of county commissioners to maintain properly and adequately the county highway system within the county ... 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.

DOT argues that the combined provisions of SDCL 31-6-7 and 31-12-19 serve as support for the proposition that the legislature intended the county to continue to be responsible to maintain the highways. We disagree.

First, SDCL 31-6-7, by its specific language, is limited to provisions “in this chapter” (i.e., secondary roads) and does not refer to any other legislation. Secondly, although it is not clear what type of specific agreement County entered into for the receipt of federal aid, triggering SDCL 31-12-19, the language of that section is not binding here because the State can and has in this case, by specific legislative act, taken the highway into its system, thereby eliminating the requirement that County pay for the maintenance.

Like our predecessors in the Robinson, supra, case, we continue to be persuaded that the legislature, by placing the road on the state trunk highway system, intended to relieve County of all duty to maintain and repair such road. To hold otherwise would make the 1986 legislation an idle act and would ignore the clear language of SDCL 31-1-5, 31-4-2, 31-4-14 and 31-12-5. What else could the legislature have *477intended by placing this section of highway on the state trunk system if it did not intend to have the state, rather than the county, maintain it? To accept DOT’s argument that County continues to be responsible to maintain the highway until DOT places it on its own maintenance schedule would, in essence, give DOT power to veto or supersede legislative acts, rendering them a nullity.3 That would be absurd.

We point out that this decision does not require DOT to maintain this specific section of highway. Rather, it clarifies whose responsibility, in reality, it is.

REVERSED.

WUEST, C.J., and MORGAN and HENDERSON, JJ., concur. SABERS, J., dissents.

. Memorandum decisions are not binding and are not what we generally review. Valandra v. S.D. Dept. of Commerce & Regulation, 425 N.W.2d 400 (S.D.1988); Jones v. Jones, 334 N.W.2d 492 (S.D.1983); Frisbee v. Dale, 272 N.W.2d 806 (S.D.1978); Wall v. Wall, 260 N.W.2d 644 (S.D.1977); Christiansen v. Strand, 82 S.D. 416, 147 N.W.2d 415 (1966). However, in cases such as this, where we have no findings to review, an examination of the memorandum decision enables us to understand the rationale of the trial court.

. The underscored portion of the above statute has been in place since the legislative predecessor of SDCL 31-5-1 was enacted in 1923 S.D. Sess.L. ch. 285.

. If this decision does some type of violence to the DOT program of maintenance, it must address those concerns to the legislature rather than to this court.