STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
May 15, 1972
Jack Allmon, Director
Department of Highways
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 72-22
Counties may participate in the cost of highway right-of-way on the State Trunk System
Dear Mr. Allmon:
You have requested my official opinion as to whether counties may share with the State in the cost of acquiring right-of-way on the State Trunk System.
SDCL 1-24-8 authorizes public agencies to contract with other public agencies to perform any governmental service, activity, or undertaking which each public agency is authorized by law to perform.
SDCL 31-5-5 states that counties and the State Highway Commission may enter into agreements in which each party may perform work or submit monetary contributions for the completion or improvement of a certain part of the State Trunk Highway within the county. This was Chapter 135 of the 1965 Session Laws.
The completion of the State Trunk Highway within a county would, in the customary meaning of the word "complete" include the acquisition of right-of-way. The word complete was defined in Versailles Twp. v. Ulm, 33 A 2d 265, 267, 152 Pa. Super. 384, as meaning filled up, with no part, item, or element lacking; free from deficiency, entire, perfect consummate.
SDCL 31-19-19 was enacted by the Legislature in 1965 by Session Law 135 to amend SDC Supp. 1960 §28.13A0l. Reading SDC Supp. 1960 §28.13A0I and SDCL 31-19-19 side by side makes clear the intent of the legislation.
For the purpose of clarification, the original statute and the amended version read as follows:
SDC, Supp. 1960, §28.13A0l: That from and after the effective date of this act, whenever any land or lands, easement in same or material is necessary for right-of-way in order to make a safe or proper grade, or for widening, changing, relocating, constructing, reconstructing, maintaining or repairing any portion of the State Trunk Highway, or whenever it is necessary for providing cutslopes, borrow pits, channel changes, or to afford unobstructed vision on said State Trunk Highways at any point of danger to public travel, for right-of-way and borrow pit, the State of South Dakota, through and by its State Highway Commission, shall require and pay for same out of state highway funds. The cost of said land or material and expense of purchase or condemnation shall be paid as part of the cost of the State Trunk Highway.
SDCL 31-19-19:
Whenever any land or lands, easement in same or material is necessary for right-of-way in order to make a safe or proper grade, or for widening, changing, relocating, constructing, reconstructing, maintaining or repairing any portion of the state trunk highway, or whenever it is necessary for providing cu t slopes, borrow pits, channel changes, or to afford unobstructed vision on said state trunk highways and at any point of danger to public travel, for right of way and borrow pit, the state of South Dakota, through and by its state highway commission, or counties which have been authorized to acquire and pay for same out of state highway funds unless it is otherwise agreed. The cost of said land or material and expense of purchase or condemnation shall be paid as part of the cost of the state trunk highway unless otherwise agreed.
The unmistakable intention of the amendment would be to allow the State Highway Commission and the counties to come to an agreement whereby the county as well as the State Highway Commission could acquire and pay for right of way needed for the State Trunk System within the individual county. Putting these two statutes together, SDCL 31-5-5 and 31-19-19, and noting that these statutes in their present form result from Session Laws 132 and 135 of the 1965 Session of the Legislature, makes it evident the end which the Legislature sought. That being the authorization of counties participating in the acquisition of right of way on the State Trunk System.
If any other meaning is ascribed to these statutes, it makes the amended forms of the state meaningless since they would have affected no change. Olson v. Rogers (1923) 47 S.D. 63, 195 N.W. 1019, states that it must be presumed the Legislature had some object in enacting a law and that if that object can be ascertained from a reading of the act itself and from the language the Legislature used, it is the duty of the Court to give it the effect it was intended to have. Red Wing Sewer Pipe Company v. City of Pierre (1915) 36 S.D. 276, 154 N.W. 712 said that in interpreting statutes the most important thing to be ascertained is the intent of the lawmaking power in enacting same.
SDCL 31-19-50, has also been considered and it is my opinion it does not preclude the counties from exercising the right to enter the agreements authorized by 31-5-15 and 31-19-19.
The answer to your question, therefore, is, YES.
Respectfully submitted,
Gordon Mydland
Attorney General
