(dissenting).
I dissent because I consider SDCL 31-22-1, as amended, unconstitutional. While the principle that a statute should be upheld if possible is well settled, this does not mandate that the court assume an utterly convoluted posture to do so.
I agree with appellant that SDCL 31-22 authorizes the taking for private purposes. To the extent that a taking for access to a *373truly isolated tract is involved in the statutory scheme, I would hold that such is not unconstitutional as a codification of the long-standing common law principle of right to “a way of necessity.” However, the 1970 amendment1 which extended the use of SDCL 31-22 to tracts which are abutting section line highways2 is, in my opinion, unconstitutional. Prior to 1970, respondent’s land would not constitute an isolated tract.
The majority states that this right-of-way is a public road and that the isolated tract owner cannot restrict travel. In my view, the placing of gates across the right-of-way, locked or unlocked, is inimical to the concept of public roads. While SDCL 31-22-7 does not authorize the isolated tract owner to lock the gates, it certainly does not proscribe it.3 I recognize that there is statutory authority for fencing across unimproved county roads that run through grazing land.4 Right-of-ways to isolated tracts do not always run through grazing land, and according to the majority opinion, the road in the present case hardly constitutes an unimproved road.
I thoroughly disagree with the statement that the 1970 amendment reinforces the intent that the road is a public way taken to replace the section line right-of-way. What then of the provisions of SDCL 7-18-9 which provides that: “The board of county commissioners is authorized to condemn private property for public purposes in the manner and to the extent hereinafter provided.” (Emphasis added.) The statute goes on to say that:
Whenever the board of county commis-. sioners shall deem it necessary to condemn private property for the purpose of opening, constructing, changing, relocating, * * * any highway * * * within its county, * * * such board shall by resolution and order declare such appropriation necessary to be made, stating the purpose thereof and the extent of such appropriation, and thereupon proceedings for such condemnation and appropriation shall be had as provided by law. (Emphasis added.)
I find in the record no appropriate action by the board of county commissioners to determine that the section-line highways abutting the so-called isolated tract are vacated. The statute provides at best a slapdash, harum-scarum method for county commissioners to get roadways to remote tracts without assuming the responsibilities for opening or vacating and relocating the section-line roads. There need be only a minimal showing that the tract is not touched *374by a passable road which is in use. With the increasing proliferation of small tract developments what protection does the landowner have if we say that this procedure is constitutional?
Finally, I find incomprehensible the majority position that SDCL 31-22-8 which provides in part that “the owner of such isolated tract of land shall keep and maintain such right of way at his or her own expense” is compatible to the provisions of SDCL 31-12-6, which provide that “the county highway system * * * shall be maintained and repaired at the expense of the whole county.” That is one shall too many for me. The word shall is generally regarded as mandatory. It can be given directory or permissive meaning in order to give effect to the legislative intent,5 but what of this case? Are we going to say that the legislative intent was to make the maintenance and upkeep of county roads merely directory? I do not think that in either statute the legislature meant shall as anything but mandatory. I suspect that that pigeon will come home to roost when a case comes before us where either an owner of an isolated tract wants the county to maintain his driveway or the auditor general criticizes a county board for doing so. In my opinion the statutes are utterly incompatible.
A multitude of other statutory provisions governing public highways lend strength to my position that this is a driveway not a public road, e. g.: (1) Minimum width of public highways (minimum two rods for maximum length of one-half mile, otherwise minimum four rods)6 versus isolated tract right-of-way (minimum twenty-five feet with no length limitation);7 (2) the requirement that county roads meet minimum State Board of Transportation Standards,8 which are no part of nor referred to in SDCL 31-22; and (3) chapter 31-12 provides for bid procedures or contracts for construction of county highways as opposed to SDCL 31-22, which contains no authorization for construction of a road, but'only for the laying out of the easement or right-of-way.
I concur with the majority that the determination of damages was wholly inadequate for condemnation of right-of-way for a public road. I believe this is only one more indicia that the county commissioners thought they were merely laying out an easement for a driveway to the isolated tract. While I join in the remand to the circuit court for determination of damages, for all the reasons hereinabove stated, I would remand the ease to the circuit court with instructions to enter judgment in favor of the appellants.
. Chapter 161, Session Laws of 1970, amended SDCL 31-22-1 by adding:
An isolated tract is further defined as an area which is either inaccessible by motor vehicle because of natural barriers from all other land owned by the owner of the isolated tract or is such an area which is not touched by a passable public highway, which is in use or reasonably usable for motor vehicles as distinguished from public highways existing only by operation of law.
. SDCL 31-18-1 provides:
There is along every section line in this state a public highway located by operation of law, except where some portion of the highway along such section line has been heretofore vacated or relocated by the lawful action of some authorized public officer, board, or tribunal.
. The discussion as to the record and the testimony of what the isolated tract owner intends to do with respect to fences or gates is immaterial, inasmuch as constitutionality of a law is to be determined from what may be done thereunder not from what has or is being done thereunder. St. Germain Irrigating Co. v. Hawthorne Ditch Co., 32 S.D. 260, 143 N.W. 124 (1913).
.SDCL 31-25-1 provides:
The board of county commissioners of any county having within its boundaries, any unimproved county, township, or section-line highway extending or running through or across grazing land, may, upon petition, signed by a majority of the adjacent landowners along the portion of such highway involved, and after a hearing is had, on notice mailed by the county auditor to all of said landowners, not less than ten days before such hearing, authorize such landowners to erect and maintain fences across such highway, providing, however, that the board of county commissioners shall require the erection of gates or grates, or both, in such fences at points designated by such board, so that the public may have access to such highway.
. Dunker v. Brown County Board of Education, 80 S.D. 193, 198, 121 N.W.2d 10, 14 (1963).
. SDCL 31-3-18 provides:
All public highways located under §§ 31-3-6 to 31-3-37, inclusive, shall be not less than four rods in width, and may be six rods in width when all residents of land adjoining such highway shall petition for such width, except that highways not exceeding one-half mile in length and not located on section lines may be not less than two rods in width when, in the judgment of the board of county commissioners, such width will be sufficient to accommodate properly the travel thereon. Every order locating or changing any highway shall specify the width thereof.
. SDCL 31-22-3 provides:
Upon the day set for such visit to such land for the purpose of laying out such right of way and appraising the damages to the owner of'the surrounding land therefor, the county commissioners shall proceed to the place named, shall lay out a right of way twenty-five feet in width from such isolated tract of land across surrounding lands to a public highway, and in so doing shall consider the convenience of the parties. Wherever it is practicable to do so, such board shall lay such right of way along a section line or the line of a government fractional subdivision of a section.
.SDCL 31-3-19 provides:
The provisions of §§ 31-3-22 to 31-3-37, inclusive, shall apply to all public highways by whatever authority located within any organized or unorganized county which are not within the limits of any city or incorporated town, except that no portion of the state trunk highway system or county highway systems shall be vacated, changed, or located except with the approval of and in accordance with the order of the department of transportation to be first made.