Moulton v. State , 1985 S.D. LEXIS 276 ( 1985 )

FOSHEIM, Chief Justice.

The State appeals from a summary judgment which in effect determined that the Game, Fish and Parks Commission (Commission) had no authority to terminate private cabin site permits in Custer State Park. We affirm in part and reverse in part.

The Commission granted Moulton et al., (cabin owners), a hearing regarding their permit renewal, and decided to allow the permits to terminate December 31, 1982. Cabin owners took, but abandoned, a direct appeal from that decision. This Declaratory Judgment action was brought in Custer County pursuant to SDCL 1-26-14.¹ The State first argues that the Custer County trial court lacked jurisdiction because the Commission’s action was not a rule within the meaning of SDCL 1-26-1(7). See, Mills Wholesale Liquor Co. v. Zellmer, 298 N.W.2d 523, 525 (S.D.1980). In deciding this issue, we proceed with the following sequence: (1) Was the Commission’s decision a rule? (2) If it was a rule, the Custer County court had jurisdiction under SDCL 1-26-1(7) and 1-26-14. (3) If not a rule, then the case should have been venued in Hughes County. Mills, supra. (4) If improperly venued, we must decide whether venue is jurisdictional. (5) If venue is jurisdictional, and the Commission’s decision was not a rule, the case was improperly tried in Custer County. If venue is not jurisdictional, and the Commission’s decision was not a rule, then the case was properly venued in Custer County because the State failed to request a change in the place of trial.

“A rule ... is the product of rule making and rule making is the part of the administrative process that resembles the legislature’s enactment of a statute. Rule making is the issuance of regulations or the making of determinations which are addressed to indicated but unnamed and unspecified persons or situations.” Id. at 526, quoting Fox v. Kneip, 260 N.W.2d 371, 75 (S.D.1977) cert. den. 436 U.S. 918, 98 S.Ct. 2264, 56 L.Ed.2d 759, appeal after remand, 294 N.W.2d 657 (S.D.1980); See also, SDCL 1-26-1(7). The Commission, exercising the discretionary power conferred on it by statute, decided not to renew the private cabin permits in Custer State Park. That is not the product of rule making or quasi-legislative action contemplated by the statute and our interpretative decisions. Fox, supra; State ex rel. Green v. Knight, 47 S.D. 224, 197 N.W. 159 (1924). The Custer County court did not, therefore, have jurisdiction as a matter of law.

Having decided there was no rule, we look to the Mills case. See, Mills, supra at 526. Absent a rule, SDCL 1-26-14 cannot provide the basis for venue in Custer County. Id. The declaratory judgment action must therefore come under SDCL ch. 21-24 and SDCL 15-6-57. Id. Accordingly, proper venue was in Hughes County pursuant to SDCL 15-5-2.² Id.

SDCL 15-5-2 is a general venue statute. We have consistently held that general venue statutes set the place of trial only, and do not confer jurisdiction. American Advertising Co. v. Dept. of Transportation, 280 N.W.2d 93 (S.D.1979); Putnam Ranches, infra; Meihak v. Schreckenghaust, 67 S.D. 603, 297 N.W. 122 (1941); Ott v. Cheney, 63 S.D. 524, 261 N.W. 204 (1935); Alderman v. NY Underwriters Ins. Co., 61 S.D. 284, 248 N.W. 261 (1933). The State did not demand a change of place of trial, as was done in Mills, supra. SDCL 15-5-10 provides that unless a defendant demands such a change, the action may be tried in the county chosen by the plaintiff. Putnam Ranches, Inc. v. Production Credit Assn., 271 N.W.2d 856 (S.D.1978). Thus, the State’s jurisdiction argument fails.

The Commission next disputes the determination that it lacked authority to terminate cabin owners’ permits. In 1919, the legislature created the Custer State Park Board and in 1921 authorized it to enter into cabin site permits or leases “to encourage the erection of summer cottages” in the Park. Subsequent legislation similarly encouraged the erection of summer cabins. In 1961, the legislature extended the authority of the Game, Fish and Parks Commission, (created in 1945), to grant permits and leases on land owned or controlled by it, (including the Custer State Park) and created a new power to grant easements. 1961 S.D.Sess.Laws ch. 114. The legislative policy of encouraging private cabins in Custer State Park, then codified as S.D.C. § 55.4509 (1939) was left intact by the 1961 amendments.

In 1966, however, two statutes were enacted which signalled a policy modification. Section 1 of Chapter 68 “Amending Law Relating Powers and Duties of Game, Fish and Parks Commission and Director” provided:

1966 ch. 68 Section 1. That subsections (1), (3) and (6) of SDC 1960 Supplement 25.0106-1, as amended by Chapter 114 of the 1961 Session Laws and Chapter 108 of the 1965 Session Laws, be, and the same is hereby, amended to read as follows:

“(6) To grant easements, leases or permits on property which it owns or controls for public utilities, for agricultural purposes, for electrical power or telephone lines, towers for radio, TV or radar, for cabin sites, and for concessions, for the developments, operation or management of facilities to service the needs of the public.” (Emphasis added).

This provision now appears as SDCL 41-2-26. The second law enacted was 1966 S.D. Sess.Laws Chapter 73; section 1 expressly repealed Chapter 55.45 of the South Dakota Code of 1939 and all amendatory acts thereof. See, Argo Oil Corp. v. Lathrop, 76 S.D. 70, 72 N.W.2d 431 (1955) (express repeal of a law occurs when it is literally declared by subsequent law). As noted, § 55.4509 of the 1939 code contained the legislative policy of encouraging private cabin sites in Custer State Park.

The manifest intent of a statute must be derived from the statute as a whole, Herrmann v. Bd. of Comm. of the City of Aberdeen, 285 N.W.2d 855 (S.D.1980), from its language, State Theater Co v. Smith, 276 N.W.2d 259 (S.D.1979), and affording the language its plain, ordinary and popular meaning. Independent Community Bankers Association et al. v. State et al., 346 N.W.2d 737 (S.D.1984); Messersmith v. Stanga, 71 S.D. 88, 21 N.W.2d 321 (1946).

The history and plain language of SDCL 41-2-26 indicates a legislative intent to abandon the “encouragement” policy, in favor of a discretionary power in the Commission to grant or terminate cabin permits in Custer Park, as may best serve the public interest. Cabin owners’ statutory interpretation, if adopted, would require the Commission not only to renew their permits but also potentially grant new permits, even though it failed to serve the public interest. This would defeat the purpose of the statute. See, Durr v. Hardesty, 76 S.D. 232, 76 N.W.2d 393 (1956); Western Surety Co. v. Mydland, 85 S.D. 172, 179 N.W.2d 3 (1970). A statutory grant of power includes authority to employ the means necessary to exercise that power. Board of Regents v. Carter, 89 S.D. 40, 228 N.W.2d 621 (1975). The Commission was accordingly within its delegated authority when it utilized the nonrenewable leases to terminate private cabin site permits in Custer State Park. Mills, supra; Fox v. Kneip, supra; State ex. rel. Green, supra. It likewise may in the future exercise its discretion to grant new cabin site leases so long as it serves the public needs.

We next consider whether the trial court erred in deciding that Kenneth Harrod did not have a valid ninety nine (99) year lease on his cabin site. It appears that a Mrs. Briggs originally had a ninety nine (99) year lease to his cabin site, but we fail to see that as relevant. All 1958, 1962, 1968 and 1973 leases, including Mr. Harrod’s, contained provisions reserving to the Commission the right to cancel permits upon their expiration dates, if the Commission determined that the cabin site had a higher priority for public use other than as a private summer home site.³

The 1978 written contract between cabin owners and the Commission called for expiration of permits in 1982. The first paragraph of the 1978 cabin permits provided “THIS PERMIT WILL NOT BE RENEWED — THE ABOVE FIVE YEAR TERM WILL CONCLUDE THE STATE’S POLICY OF ALLOWING PRIVATE SUMMER HOME SITES IN THE PARK.” Paragraph 20 provided “It is agreed and understood that THIS PERMIT EXACTLY TERMINATES ON DECEMBER 31, 1982 AND IS NOT RENEWABLE AFTER THE EXPIRATION OF THIS TERM.” The cabin owners, including Mr. Harrod, all signed a permit with this provision.

These new contracts supersede prior lease arrangements, see, South Hanson Lumber Company v. DeMoss, 253 Iowa 204, 111 N.W.2d 681 (1961), and any oral representations must yield to subsequent written contracts. Id.; See also, SDCL 53-8-7.

The evidence does not support misconduct or duress as claimed. As we stated, the Commission was fully within its statutory authority in refusing to renew the private permits. Granted the cabin owners were not in a favorable bargaining position when they signed the nonrenewable permits. They nevertheless signed the permits and enjoyed the benefits. This, coupled with the previous signed permits containing the reservation of rights clause, makes any claimed previous leases irrelevant. The State was entitled, as a matter of law, to have the permits enforced according to their plain terms.

Cabin owners filed a notice of review to that portion of the Judgment for Plaintiff which denied them attorney fees, damages and costs. The cabin owners rely on 42 U.S.C. § 1988 and claim that they are a “prevailing party” for purposes of this act. This action did not, however, vindicate a broad public interest. Rather, it was taken to enforce private property rights. The trial court was correct in denying attorney fees. See, Van Emmerik v. Mont. Dak. Util. Co., 332 N.W.2d 279 (S.D.1983); Boland v. City of Rapid City, 315 N.W.2d 496 (S.D.1982).

Finally, cabin owners urge error in denying their arguments of estoppel and violation of constitutional rights. These arguments were addressed only in the trial court’s memorandum decision, which is not reviewable on appeal. See, Jones v. Jones, 334 N.W.2d 492 (S.D.1983); See also, Talbert v. Talbert, 290 N.W.2d 862, 864 (S.D.1980); Frisbee v. Dale, 272 N.W.2d 806, 807-808 (S.D.1978); Western Bldg. Co. v. J.C. Penney Co., 60 S.D. 630, 637, 245 N.W. 909, 911 (1932); State Bank of Burleigh County Trust Company v. City of Bismarck by and through the Bismarck Board of City Commissioners, 316 N.W.2d 85 (N.D.1982). We therefore decline to address these claims.

We affirm the trial court’s jurisdiction and denial of attorney fees but otherwise reverse.

WOLLMAN, J., and WUEST, Acting J., concur. MORGAN, J., concurs in part and dissents in part. HENDERSON, J., dissents.

1 . SDCL 1-26-14 provides:

The validity or applicability of a rule may be determined in an action for declaratory judgment in the circuit court for the county of the plaintiff's residence, if it is alleged that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. A declaratory judgment may be rendered whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.

2 . SDCL 15-5-2 provides:

Actions for the following causes, or upon the following instruments, must be tried in the county where the cause, or some part thereof, arose, or the forfeiture was declared, subject to the power of the court to change the place of trial:

(2) against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who, by his command or his aid, shall do anything touching the duties of such officer[.]

3 . The cabin permits dated 1958, 1962, 1968 and 1973 contained the following provision:

"24. If the Commission determines that the area covered by this permit has a higher priority for public use other than as a summer-home site, the Commission reserves the right to cancel this permit upon said expiration date."