July 11, 1985
Honorable Warren R. Neufeld
Secretary
Department of Water and Natural Resources
Joe Foss Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 85-29
Alleged clerical errors in the codification of Session Law 1984 (SS), Chapter 1 codified at SDCL 46A-3E-2; 46A-3C-4; 46A-3A-7
Dear Secretary Neufeld:
As originally enacted, Session Law 1984 (SS), Chapter 1 set up a comprehensive plan for the dissolution of the old conservancy subdistricts and the creation of and operation of the new water development districts. You have raised three issues relating to errors you identify as 'clerical' in codification of the 1984 statute.
IN RE QUESTION NO. 1:
First, you point to Session Law 1984 (SS). Ch. 1, § 46, now codified at SDCL 46A-3E-2. This section required that 66-2/3 percent of the owners of real property sign a petition requesting assessment before a project could be submitted to a water development district board of directors. As published in the 1984 pocket supplement, printed in the fall of 1984, however, only 60 percent of the owners of real property were required to sign the petition. The 1985 Legislature enacted the 1984 pocket supplements into law. Based upon these facts you make the following inquiry:
Must 66-2/3 percent of the property owners approve the petition for a special assessment under SDCL 46A-3E-2, as stated in the bill enacted by the Special Session or, alternatively, must only 60 percent of the property owners sign such a petition, as stated in the pocket part?
The scenario you describe indicates that the law has passed through three separate periods. The first period ran from the effective date of the law passed by the 1984 Special Session to the date of the publication of the 1984 pocket parts. During this period, the only documentary support for any percentage requirement for submission of an assessment petition to the water development district board of directors was 66-2/3 percent. Thus, during this period, the 66-2/3 percent requirement was indisputably in effect.
The second period ran from the publication of the 1984 pocket parts to the effective date of the 1985 Session Laws, that is, July 1, 1985. During this period, there was an apparent conflict in the law. The pocket part required a 60 percent signature proportion while the Session Law, of course, required 66- 2/3 percent. It is true that the language contained in the pocket parts is 'prima facie evidence of the law contained herein.' SDCL 2-16-12. Nonetheless, the 'prima facie' evidence of the pocket parts may be overcome by the evidence of the session law itself. As my predecessor correctly stated: 'When there is a conflict between the session law and the compilation, it is the original law. (contained in our Session Laws) which continues to exist.' AGR 75-188. Thus, during the period from the publication of the 1984 pocket parts to the effective date of the 1985 Session Laws, the 1984 Session Law requiring the 66-2/3 percent agreement was effective.
The third period is that beginning on July 1, 1985, the effective date of the 1985 Session Laws. This date is important because the Legislature, during the 1985 legislative session, adopted the 1984 pocket parts as part of the 'official code of laws of the State of South Dakota.' Session Law 1985, Chapter 19, § 1(18). This adoption of the pocket parts as the code of laws was effective July 1, 1985. The adoption made the 1984 pocket parts more than mere 'prima facie' evidence of the law; it transformed the 1984 pocket parts into the 'official code' of the State of South Dakota. As of that day the 1984 pocket parts controlled over conflicting 1984 Session Laws. Thus, as of July 1, 1985, the percentage of property owners necessary to activate a petition under SDCL 46A-3E-2 was reduced to 60 percent.
I recognize that a strong probability exists that the change from the percent required in the original act passed by the Special Session to that enacted into the official code by the 1985 Session was the result of a mistake. Moreover, the South Dakota Supreme Court has indicated that in 'case of doubt and uncertainty' a reviewing court can look to the session law to determine the true meaning of a statute subjected to codification. Lewis v. Annie Creek Mining Co., 48 N.W.2d 815, 819 (S.D. 1951).
It is evident, however, that the 'doubt and uncertainty' as to the meaning of a statute adopted as part of the South Dakota code of laws must appear upon the face of the law or laws which are under construction. In Reaney v. Union County, 10 N.W.2d 762, 763 (S.D. 1943), the court considered and adopted as a proper aid to construction of statutes the following statement from another reference:
A mere change of phraseology, or punctuation, or the addition or omission of words in the revision or codification of statutes, does not necessarily change the operation or affect thereof, and will not be deemed to do so unless the intent to make such change is clear and unmistakable.
Nonetheless, the court went on to indicate that the presumption that codification does not change the meaning of a statute operates only when the statute itself is ambiguous. As the court stated:
It is only in this field of uncertainty that the presumption [i.e. the presumption that codification does not change the meaning of a statute] . . . has potential. It is without force and in the face of clear and exact expression and cannot justify a conclusion which revises that which has expired because of omission. (Citations omitted.) Neither can it justify the reading of meaning from words they utterly fail to convey. Even though we may believe an omission has arisen from oversight or error, the presumption does not invest us with power to cure the resulting legislative mistake.
Reaney v. Union Company, 10 N.W.2d at 764. See also Lewis v. Annie Creek Mining Company, 48 N.W.2d at 820.
Here the intention of the Legislature is manifest upon the face of the language in the pocket part now adopted as part of the code of the laws of the State of South Dakota. The phrase '60 percent' admits of no ambiguity and is nothing more or less than a 'clear and exact expression.' Thus, though the '60 percent' figure may indeed be the result of 'oversight or error,' Reaney v. Union County, 10 N.W.2d at 764, I am forced to determine that any such error, if it actually does exist, should be remedied by the Legislature. *
I therefore conclude that as of July 1, 1985, only 60 percent of the owners of real property in a water development district are required to petition the board of water development districts to activate the provisions of SDCL 46A-3E-2..
IN RE QUESTION NO. 2:
Your second area of inquiry has some similarities to your first. Session Law 1984 (SS), Ch. 1, § 27, now codified as SDCL 46A‑3C‑4, required that 60 percent of the votes be in favor of the dissolution of a water development district. The 1984 pocket part, however, indicates that 66-2/3 percent of the votes must be cast in favor of such dissolution. Like the section discussed above, this section was adopted as part of the code of laws of the State of South Dakota by the 1985 Legislature.
There is, however, a significant difference in this case and the case described above. The 60 percent requirement of Session Law 1984 (SS), Ch. 1, § 27 also appeared in Session Law 1984 (SS), Ch. 1 § 24. The latter section states flatly that:
A water development district may be dissolved by affirmative vote of at least 60 percent of the votes cast on the question at a general election.
The 1984 pocket part preserved the 60 percent figure and therefore the 60 percent figure was made part of the 'code of laws' of South Dakota and now appears at SDCL 46A-3C-1. Two parts of the law codified by the 1985 session thus conflict.
In my view, the present case is one in which there is 'doubt and uncertainty' appearing on the face of the statute subjected to codification. In other words, it is my view that when two provisions of a single statute are simultaneously codified and when the meaning of one part, originally identical to the meaning of another part is changed and when the other is not, there is doubt and uncertainty appearing on the face of the statutes. In such a case, it is my opinion that the underlying session law may be referred to under the general authority of Lewis v. Annie Creek Mining co., supra, and Reaney v. Union County, supra.
Such reference reveals that the 60 percent figure was used in both Session Law 1984 (SS), Ch. 1, § § 24 and 27 thereof. I conclude, from the reference, that the South Dakota courts would construe the session law to be controlling in the narrow context of this case. Thus, it is my opinion that as of July 1, 1985, 60 percent of the voters must agree to dissolution of a water development district as set out in SDCL 46A-3C-1 notwithstanding language to the contrary in SDCL 46A-3C-4.
IN RE QUESTION NO. 3:
Your third question is still more detailed. Session Law 1984 (SS), Ch. 1, § 12 set the boundaries of the West River Water Development District to include an area described as 'and the portion of Lyman County north of White River.' This phrase was omitted from the 1984 pocket part which, pursuant to the process detailed above, was adopted as part of the 'code of laws of South Dakota,' by the 1985 legislative session and is codified at SDCL 46A-3A-7.
Moreover, you also draw our attention to House Bill 1214 enacted as Session Law 1985, Chapter 357. The act is entitled 'An Act to realign the west river water development district.'
The Act, as introduced, shows the intent, by the means of underlining, the SDCL 46A-3A-7 be amended by deleting from the West River Water Development District two townships 'Interior Township and the unorganized Cedar Township.' The phrase 'and the portion of Lyman County north of White River' was not included in the House bill as underlined or in any other manner.
In essence, then there are essentially two alleged errors at work--the omission of the Lyman County language from the 1984 pocket parts and subsequently in the adoption of the pocket parts as the 'official code' by the 1985 Legislature, and also the omission of the Lyman County language from House Bill 1214 adopted by the 1985 session.
These factors raise troublesome issues because, as you note, the Lyman County land at issue constitutes approximately one-fourth of the tax base for the district. Nonetheless, the Legislature has now twice adopted legislation which omits the Lyman County territory from the district. Were either omission alone presented to me for my opinion, I would be inclined to seriously investigate the possibility that it was not fatal. It is at least arguable that the South Dakota courts would treat the omission of particular language from a codification of a statute differently than it would treat language which varied a statute in a codification. See, for example, Reaney v. Union County, 10 N.W.2d 762 (S.D. 1943), Lewis v. Annie Creek Mining Company, 48 N.W.2d 815 (S.D. 1951). See also Dostal v. County of McLeod, 77 N.W.2d 654 (Minn. 1956).
When, however, the Legislature has twice acted in a single session to omit certain territory from the scope of a statute, (and when there is no internal inconsistency in the statute codified, see Question 2, supra) I do not see any room for an exception to the general rule that the courts may not remedy legislative errors.
I therefore conclude that after July 1, 1985, the portion of Lyman County north of White River is no longer part of the West River Water Development District.
You have asked the effect on the West River Water Development District of the removal of the area in question, drawing my special attention to the problem with taxation and with distribution of funds.
In my view, the water development district can tax the excluded lands in Lyman County a pro rata share of the obligation of the district outstanding on July 1, 1985. This result is consistent with Session Law 1984 (SS), Ch. 1, § 3 which sets up a means for taxation of the land of the former conservancy subdistrict and is also an equitable solution.
The question of distribution of West River Conservancy Subdistrict assets and taxes is also presented. Under Session Law 1984 (SS), Ch. 1, § 5 it is stated:
Following the dissolution of the conservancy subdistricts and the settling of all their outstanding financial obligations which must be paid in 1984, any remaining assets and taxes levied pursuant to the tax resolution adopted in 1984 of each of the subdistricts shall be distributed by the board. Each area of a subdistrict that is not included in the CENDAK, East Dakota, James River, Southern Missouri, West Dakota or West River water development district established pursuant to sections 8 and 13, inclusive, of this Act, shall receive, in proportion to the area's share of the assessed valuation for the year 1984 of the subdistrict within which the area was included, an amount of the remaining assets of the subdistrict. This amount shall be distributed to the counties having jurisdiction over such area in proportion to each county's share of the assessed valuation of real property in the area.
I conclude that the application of the formula set out in Section 5, above, is ministerial in nature and that the right to receive a proportional share of the funds became vested in the West River Water Development District on January 1, 1985. Since, on January 1, 1985, the Water Development District included the areas of Lyman County at issue, the water development district would receive that portion of those funds. I note that only the amount to be paid to the water development district was, as of that date, uncertain, and only computation was required to arrive at a sum certain. To allow the distribution to be affected by the withdrawal of the area on July 1, 1985, would be, in effect, to allow simple staff delays to affect substantive rights to property. See generally SDCL 2-14-27; 2-16-15.
Finally, you ask my general opinion on how the difficulties raised by this legislation might be resolved. The solution, of course, is a legislative one, and is dependent upon the interplay of various policy considerations. Given the unsettled nature of these considerations, I reserve my opinion on these matters.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
*I also note that I have analyzed the effect of SDCL 2-14-29 and find it to be (in the context, at least, of this case) no more than declarative of the fact legislation is necessary before a governmental boundary is changed. Here, of course, there is such legislation and SDCL 2-14-29 does not add to the analysis.
