August 8, 1986
Mr. Glenn L. Roth
Hutchinson County
States Attorney
P.O. Box 137
Olivet, South Dakota 57052
Official Opinion No. 86-32
County Drainage--SDCL 46A-10A-34
Dear Mr. Roth:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
In 1986 the South Dakota Legislature amended SDCL 46A-10A-34 to read as follows:
A board shall provide for appointment of its drainage commission to serve as a board of resolution and, under the regulations and controls adopted pursuant to this chapter, shall provide that the board of resolution in individual cases may make, upon an affirmative vote of three-fourths of the full membership of the board of resolution, special exceptions or variances to any official controls and shall reach decisions in individual drainage disputes between landowners, consistent with the provisions of § 46A-10A- 20. The board may constitute itself as the board of resolution. The board may further provide that specified types of categories of drainage disputes may not be heard by the board of resolution. A drainage dispute which is not within the jurisdiction of the board of resolution shall be taken directly to the circuit court of the county wherein the conflict exists.
SDCL 46A-10A-2, however, provides that the board of county commissioners 'may' appoint a drainage commission. These statutes appear to be contradictory and many county commissioners are uncertain as to their responsibility to appoint a drainage commission and to provide for a board of resolution. Some counties take the view that the county commissioners are required to appoint a board of resolution only if there is an existing drainage commission. Others take the view that the county commissioners must either appoint a drainage commission to act as a board of resolution, or perform that function themselves.
Based upon those facts, you have asked the following question:
QUESTION:
If a county commission has not appointed a drainage commission, does SDCL 46A-10A-34 require it to either (1) appoint such a drainage commission and require that drainage commission to act as a board of resolution, or (2) appoint itself as the board of resolution?
ANALYSIS:
The task of statutory interpretation is one of discerning legislative intent. That intent is to be determined from an analysis of the statute as a whole. To answer the question posed here, an analysis and examination of two statutes, SDCL 46A-10A-2 and SDCL 46A-10A-34, in the context of the entire scope of drainage powers set out by the Legislature, is required.
SDCL 46A-10A-2, enacted in 1985, reads:
The board of county commissioners of each county may appoint a commission of three or more members, the total membership of which shall always be an uneven number and at least one member of which shall be a member of the board, to be known as the county drainage commission. If a commission member resigns his position, is unable to fulfill the duties of his position or is removed for cause under the provision of § 46A-10A-3, the board shall appoint a new member to the commission within thirty days. A commission may not conduct official business unless all memberships on the commission are filled and unless a majority of the members are present at a meeting of the commission. Administrative officials of the county may be appointed as ex officio members of the commission, but shall have no vote in commission matters. (Emphasis added.)
This section, read in the context of the entire chapter on drainage, reflects a perception that drainage matters are best handled at the local level. Specifically, the boards of county commissioners are given authority over all aspects of drainage. The Legislature realized, however, that the regulation of drainage would be a more arduous task in some counties than in others. Therefore, boards of county commissioners were authorized to appoint drainage commissions to assist in carrying out portions of these drainage functions. In recognition of the diversity of counties statewide, it was left to the discretion of the respective boards of county commissioners to appoint or not appoint a drainage commission; this discretion is granted in SDCL 46A-10A-2 as set out above.
In 1986, however, the Legislature injected a facially mandatory requirement into the statutory scheme. SDCL 46A-10A-34 states:
A board shall provide for appointment of its drainage commission to serve as a board of resolution and, under the regulations and controls adopted pursuant to this chapter, shall provide that the board of resolution in individual cases may make, upon an affirmative vote of three-fourths of the full membership of the board of resolution, special exceptions or variances to any official controls and shall reach decisions in individual drainage disputes between landowners, consistent with the provisions of § 46A-10A-20. The board may constitute itself as the board of resolution. The board may further provide that specified types or categories of drainage disputes may not be heard by the board of resolution. A drainage dispute which is not within the jurisdiction of the board of resolution shall be taken directly to the circuit court of the county wherein the conflict exists. (Emphasis added.)
The question which has arisen is whether the two sentences italicized above create a mandatory duty on the part of the county commission to either appoint a drainage commission and compel it to act as a board of resolution, or to itself act as a board of resolution. In other words, the question is whether there must be, at the local level, a board of resolution.
A close analysis of the statute seems to indicate that the county commission which has appointed a drainage commission must require that it serve as a board of resolution. This follows from the language '[a] board shall provide for appointment of its drainage commission to serve as a board of resolution.'
Next, the statute provides that '[t]he board may constitute itself as the board of resolution.' The central issue, as I see it, is whether the word 'may' in this statute should be construed to have any mandatory meaning. It is of course true, as the South Dakota Supreme Court stated in Person v. Peterson, 296 N.W.2d 537 (S.D. 1980), that the word 'may' in a statute should be construed in a permissive sense unless the context and subject matter indicate a different legislative intent.
The Court cited two cases for this proposition--Tubbs v. Linn, 70 N.W.2d 372 (S.D. 1955) and Rowenhorst v. Johnson, 204 N.W. 173 (S.D. 1925). Rowenhorst itself cites and quotes at length a third case, Swenehart v. Strathman, 81 N.W. 505 (S.D. 1900), and this later case is especially important to this analysis. In Swenehart the statute at issue read that the district school board shall organize, maintain, and conveniently locate schools for the education of all children of school age within the district. When pupils reside at an unreasonable distance from their nearest school office in the school district, the school board may make reasonable financial provisions for the transportation of such pupils to some other school in the district or for their tuition in some other district . . . any school may be discontinued by the district board, who shall make arrangements for the transfer of pupils to some other school, and for their tuition there in. 81 N.W. at 506 (Emphasis added).
Like the statute now at issue, the education statute used both the words 'shall' and 'may'. The trial court treated both words as mandatory, ordering that the school district either maintain a school within one mile of the plaintiff or provide transportation to another school. This was so even though the statute provided on its face that when pupils resided an unreasonable distance from a school 'the school board may make reasonable financial provisions for the transportation of such pupils . . ..' (Emphasis added.) The Supreme Court upheld the trial court, finding that according to the prevailing rule, 'may' means 'must' when the public interest and individual rights call for the exercise of powers given not for the benefit of school or other officers, but for the individual and the public generally.
81 N.W. at 506.
It is apparent that a board of resolution, whether constituted as a drainage commission or as the county commission itself, could provide a speedy and inexpensive form for the resolution of drainage disputes. It might well be considerably more accessible--more usable--than a circuit court with its reliance on rules of civil procedure and upon attorneys. The board of resolution thus appears to constitute, at least potentially, a board which would be maintained for the 'benefit of the public generally' as opposed to the benefit of the local officers.
The remedy chosen in Swenehart is of interest. The Court did not simply order the school district to provide financial support for the transportation of the student; instead, it ordered the school district to either maintain a school within one mile of the plaintiff or to provide transportation for the children to another school within the district. The Court interpreted the prevailing rule to require that the plaintiff have the benefit of a school at a place which was convenient.
Similarly, in my view, a correct reading of Swenehart in the context of this issue would be that the statute requires that the public have the benefit of a board of resolution at the county level. Such a board of resolution could be constituted either as an existing drainage commission (or a drainage commission to be appointed by the board of county commissioners) or it could be constituted by the county commissioners themselves. This solution to the statutory construction problem would be the same as in Swenehart--the public would have the benefit of the statute but in a manner to be decided by the county commission itself. (See also SDCL 46A-10A-34.1.)
While Swenehart is thus significant authority for the result outlined above, I am reluctant to base my opinion exclusively on the 'may- shall' discussion found therein and, in fact, it is not necessary to do so. The reading suggested by Swenehart is substantially supported by an examination of the next to last sentence in 46A-10A-34, which states '[t]he board may further provide that specified types or categories of drainage disputes may not be heard by the board of resolution.' This sentence implies that there is, in fact, a mandatory duty to hear drainage disputes at the local level; a specific exemption for certain types of drainage disputes as found in the quoted sentence would otherwise be highly anomalous. I therefore conclude that both the reading of the statute as a whole, and the Swenehart decision, support the conclusion that 46A-10A-34 demands that a means to adjudicate drainage disputes be made available at the local level either through a drainage commission or through the county commission itself.
I should, perhaps, pause here to discuss another issue which might arise. It is true that SDCL 46A-10A-2 provides that a board of county commissioners 'may' appoint a drainage commission. Is the language of this statute meant to imply a mandatory requirement as the language in 46A-10A-34 does? The answer is no. The reason the analysis of 46A-10A-34 proceeded as it did was that without such a construction the public would not have available to it an easily accessible means of adjudication of disputes, something the Legislature clearly intended; moreover, the statute read as a whole demanded such a construction. The statute is construed as mandatory in part only so that there might be some means of seeking redress at the local level. No such problem results from the failure of a county commission to appoint a drainage commission because, in the absence of the appointment of a drainage commission, the board itself has the powers of such a commission. Therefore, even if a county commission does not appoint a drainage commission under SDCL 46A-10A-2, the same remedies are available to the public at the local level.
Finally, your request for an opinion reflected uncertainty amount some county commissioners concerning the functions of a drainage commission as compared to a board of resolution. Stated succinctly, one of the functions of a drainage commission, if appointed, is to serve as a board of resolution. The phrase 'board of resolution' is more descriptive of a task to perform than it is a separate distinct body. A board of resolution:
1) resolves individual drainage disputes between landowners consistent with SDCL 46A-10A-20; and
2) grants special exceptions or variances to any official controls adopted under the drainage chapter, again consistent with SDCL 46A-10A-20.
A drainage commission, on the other hand, would have the following duties:
1) preparing a drainage plan (§ 46A-10A-16);
2) instituting official controls; (§ § 46A-10A-18; 46A-10A-19; 46A- 10A-46);
3) approving new drainage under a drainage plan (§ 46A-10A-28);
4) administering a permit system (§ 46A-10A-30);
5) resolving vested rights disputes (§ 46A-10A-31);
6) serving as a board of resolution § 46A-10A-34);
7) reviewing applications to establish coordinated drainage areas (§ § 46A- 10A-46, 46A-10A-48) and conducting elections to establish such areas (§ § 46A- 10A-50, 46A-10A-51, 46A-10A-54);
8) making recommendations on proposed drainage projects (§ 46A-10A-57); and
9) maintaining drains once constructed or improving existing drains (§ § 46A-10A-80, 46A-10A-81).
In conclusion, it is my opinion that SDCL 46A-10A-34 mandates that the various county commissioners either appoint a drainage commission to serve as a board of resolution, or undertake to serve as a board of resolution themselves. Accordingly, my answer to your question is YES.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
