Great Lakes Pipe Line Co. v. City of Grand Forks , 1966 N.D. LEXIS 176 ( 1966 )

ERICKSTAD, Judge

(dissenting).

It is an accepted rule of statutory construction that words must be given their plain and ordinary meaning. Under § 40-51-04, N.D.C.C., it does not become the duty of the governing body of a municipality to exclude property from the municipality unless, among other things, the property sought to be excluded is “wholly unplatted.”

“Wholly” is defined in Webster’s Third New International Dictionary (1961), as follows:

1. to the full or entire extent; without diminution or reduction; altogether, completely, totally * * * 2. to the exclusion of other things; solely. * * *

In the instant case the property was platted pursuant to the provisions of § 57-02-39. It was therefore not “wholly un-platted.” That being the case, the City was not obligated to grant the petition.

It is especially significant that the Legislature in § 40-51-02, in conjunction with the use of the permissive word “may,” provided that exclusion could be granted only to lands that have not been laid out into municipal lots or blocks, but in § 40-51-04, when using the mandatory words “it shall be the duty of the governing body of the municipality to disconnect and exclude,” it used the words “wholly unplatted.”

In other words, the law does not under' either section of the Code permit the governing body of a municipality to exclude property that has been laid out into municipal lots and blocks. However, it places a duty on the governing body of a municipality, when properly petitioned, to exclude property if, among other things, the property is wholly unplatted.

Had the Legislature intended that the provisions in §§ 40-51-02 and 40-51-04 mean the same, it is logical to assume that it would have used the same language. Having used different language, it must have intended different meanings.

Accordingly, I believe the trial court properly denied the writ of mandamus.