When a county wants to upgrade a gravel road in an unorganized township by paving it with asphalt, can the county use SDCL 31-13-51 (the up-to-80-cents-per-front-foot special assessment for maintaining or repairing township roads) to pay for the work? And if it could, could the county set up multi-year installment payments using the municipal-financing chapter (SDCL ch. 9-43)?
Plain-English summary
Yankton County wanted to upgrade a gravel road along the Missouri River bluffs near Lewis and Clark Lake. The road ran through an unorganized township (no functioning township government). On the north side of the road, the land was farmland. On the south side, the land was being subdivided for recreation-oriented residences.
The County Commission wanted to asphalt the road and do final grading. The County asked Yankton County State's Attorney Klimisch how to pay for it. Klimisch identified two possibilities and put them to the AG:
SDCL 31-13-51 allows a county commission acting in place of a non-functioning township to levy an annual front-foot assessment, up to 80 cents per front foot, for "the purpose of maintaining or repairing street surfaces." Could that maintenance authority cover asphalt surfacing and final grading?
SDCL ch. 9-43 is the municipal special-assessment financing chapter. It allows multi-year installments (up to 25 years) and a fixed interest rate. If the County could use 31-13-51 for the project, could it use ch. 9-43 to spread the payments out?
The AG's answer on both questions: no.
On the first question, the AG worked through the statutory structure. SDCL 31-13-32 through 31-13-50 use the word "improvement" specifically and include a definition in SDCL 31-13-33: "to open, widen, grade, gravel, surface with oil or other bituminous material, pave, repave, bridge, construct a viaduct upon or over, erect equipment for street lighting in, curb, gutter, drain, or otherwise improve any streets." This list explicitly includes paving and surfacing with bituminous material (the technical term for asphalt).
SDCL 31-13-51 and -52, in contrast, use the words "maintenance and repair." The Legislature drew a clear distinction. SD courts have not defined "maintenance" or "repair," but the plain meaning of those terms is something less than an improvement (Martinmaas v. Engelmann, Loesch v. City of Huron).
The AG concluded that asphalt surfacing of a gravel road is an improvement (specifically, "surfacing with oil or other bituminous material" per SDCL 31-13-33), not maintenance or repair. The 80-cents-per-front-foot maintenance assessment in SDCL 31-13-51 could not be used to pay for it.
The County could pay for the asphalting project, just under different statutory authority. SDCL 31-12-26 makes counties responsible for secondary roads within the county not in any municipality, organized township, road district, or improvement district (Matters v. Custer County, Bryant v. Butte County). SDCL 31-13-12 lets a county designate a township road or a road in an unorganized township as a "county aid road" and spend county highway funds on it. SDCL ch. 31-12A allows counties to form county road districts to construct or maintain roads.
On the second question, the AG looked at the chain of statutes. SDCL 31-13-50 says the township board "may use, as a method for the financing or repayment for the improvement, the provisions of chapter 9-43." That sentence is permissive (may, not shall) and is tied to township improvements (SDCL 31-13-32 through 31-13-50). SDCL 31-13-51's last sentence says the county commission, when levying under that section, "shall perform the duties, as applicable, that are required of the township board of supervisors pursuant to §§ 31-13-32 to 31-13-54, inclusive."
The County's argument was that this last sentence pulled SDCL 31-13-50's permissive financing authority into the county's hands. The AG disagreed for two reasons.
First, a county has only those powers conferred by specific constitutional or statutory authorization, plus necessarily-implied incidents (Olesen v. Town of Hurley, Sioux Falls Employees, Schryver v. Schirmer). SDCL 31-13-50 is permissive; it imposes no duty on the township board. SDCL 31-13-51's last sentence pulls in "duties...required of the township board." A permissive authority is not a duty. So SDCL 31-13-50's permissive financing authority does not flow through to the county.
Second, SDCL 31-13-51 itself specifies the assessment method. It says assessments under that section "shall be apportioned on a front foot basis and shall be levied pursuant to § 31-13-52." SDCL 31-13-52 directs the auditor to add the assessment to the general property tax. That is the Legislature's expressly-prescribed method for SDCL 31-13-51 assessments. It is inconsistent with ch. 9-43's multi-year installment and interest-bearing framework.
The bottom line for the Yankton County asphalt project: the County could do it, but not through SDCL 31-13-51 with ch. 9-43 financing. The County had to use SDCL 31-12-26 (general county secondary-road authority and the general county highway fund), SDCL 31-13-12 (county aid road designation and funding from the county highway fund), or SDCL ch. 31-12A (form a county road district). Each path had its own financing structure.
Currency note
This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL chapters 31-12, 31-12A, and 31-13 have been revised periodically. The distinction between improvement and maintenance under SD road law is structural and likely stable, but check current statutes before relying on a specific funding mechanism.
What the opinion meant at the time
For Yankton County in 2007, the opinion blocked the planned funding path but did not block the project. The County had to find a different funding mechanism (county aid road designation, county road district formation, or use of the general county highway fund). The County could not just slap an 80-cents-per-front-foot assessment on the residential development on the south side of the road and use ch. 9-43 installments to spread it over decades.
For real estate developers along unorganized township roads in SD, the opinion was important. Developers had assumed (or hoped) that subdivision approval would trigger a county-funded asphalt project with the cost spread to the abutting landowners through SDCL 31-13-51 maintenance assessments. The opinion clarified that asphalt was an improvement, not maintenance, and required either county-fund expenditure or one of the other improvement-financing mechanisms (which often included a more significant up-front cost or different apportionment).
For county states' attorneys advising county commissions on road projects, the opinion provided clear demarcation. Maintenance and repair (gravel re-spread, pothole filling, blade work, snow removal, brush cutting) could be funded through SDCL 31-13-51. Improvements (paving, widening, bridge work, drainage installation) required improvement-specific funding paths.
For landowners along unorganized township roads facing assessments, the opinion was a tool to challenge inappropriate assessments. An attempt to use the 80-cents-per-front-foot SDCL 31-13-51 assessment for paving would be subject to challenge based on this opinion.
For county auditors administering road-related assessments, the opinion clarified that SDCL 31-13-51 assessments go on the general property tax via the auditor (SDCL 31-13-52), while improvement assessments under SDCL 31-13-32 through 31-13-50 follow a different process.
Common questions
Q: What is an "unorganized township" in SD?
A: A geographic township that does not have a functioning township government (no elected supervisors, no operating board). The county commission steps into many of the functions that an organized township board would otherwise perform, including some road-related functions.
Q: What is the difference between maintenance and improvement of a township road?
A: SDCL 31-13-33 lists improvements: opening, widening, grading (as part of construction), graveling (as part of construction), surfacing with oil or bituminous material, paving, repaving, bridging, viaducts, street lighting, curb, gutter, drainage, etc. Anything not on that list and not amounting to improving the road is maintenance or repair: pothole filling, periodic blading, brush cutting, snow removal, sign replacement, etc.
Q: Why is asphalt a "surfacing with oil or other bituminous material"?
A: Asphalt is a bituminous material (asphalt binder is a petroleum product). Surfacing a gravel road with asphalt fits squarely within SDCL 31-13-33's description.
Q: What is the 80¢/ft assessment for in practice?
A: Annual maintenance and repair costs that the township (or county acting in place of a non-functioning township) wants to spread to the abutting landowners on a front-foot basis. The maximum is 80 cents per front foot per year.
Q: How would Yankton County have paid for the asphalt project?
A: Through SDCL 31-12-26 (general county secondary road duty, funded from the county highway fund), SDCL 31-13-12 (designate as county aid road and fund from the county highway fund), or SDCL ch. 31-12A (form a county road district with its own financing). Each path uses county-level funding rather than a special front-foot assessment.
Q: What is SDCL ch. 9-43?
A: The municipal special-assessment financing chapter. It allows up to 25 annual installments (SDCL 9-43-29), interest at a rate fixed by the municipality (SDCL 9-43-31), and other features designed for city-level public improvement financing. The opinion holds it is not available to counties for SDCL 31-13-51 work.
Q: Can an organized township use ch. 9-43 financing for improvements?
A: Per SDCL 31-13-50, yes (permissively) for township road improvements. The opinion does not disturb that authority.
Q: What about state highway maintenance assessments?
A: Different system. SD DOT funds state trunk highway maintenance from state appropriations and federal funds. The 80-cents-per-front-foot township assessment doesn't apply to state highways.
Q: Could the County have asked the Legislature for additional authority?
A: Yes, that's always an option. SD county powers are statutory. If counties want broader maintenance-versus-improvement authority or access to ch. 9-43 financing, the Legislature can grant it. The AG declined to read those authorities into the existing statutes.
Background and statutory framework
SD's township road framework runs through SDCL chapters 31-12 and 31-13. Chapter 31-12 covers the county highway system and county secondary roads. Chapter 31-13 covers township roads and provides for organized township operations, with special provisions for unorganized townships (where the county acts).
Within chapter 31-13, the Legislature drew a structural distinction between improvements and maintenance.
Improvements are governed by SDCL 31-13-32 through 31-13-50. The defining statute is SDCL 31-13-33, which lists the types of work that constitute improvements: opening, widening, grading, graveling, surfacing with oil or bituminous material, paving, repaving, bridging, viaducts, street lighting, curb, gutter, drainage, "or otherwise improve any streets." The list is broad and is meant to capture the universe of major capital works on township roads.
SDCL 31-13-50 contains the financing authority for improvements. The relevant clause: "the board of supervisors of a township may use, as a method for the financing or repayment for the improvement, the provisions of chapter 9-43." The use of "may" makes the authority permissive. The township can use ch. 9-43; it doesn't have to.
Maintenance and repair are governed by SDCL 31-13-51 through 31-13-54. The defining statute is SDCL 31-13-51, which authorizes an annual front-foot assessment up to 80 cents per front foot "for the purpose of maintaining or repairing street surfaces." SDCL 31-13-52 specifies the apportionment method: the auditor adds the assessment to the general property tax against the abutting property. SDCL 31-13-51's last sentence brings unorganized townships under the same framework, but assigns the duties to the county commission instead of the (nonexistent) township board.
The AG's reading of "maintenance and repair" as something less than improvement followed the SD Supreme Court's recognition that "no standards for road repair and maintenance exist" in SD law (Krier v. Dell Rapids Township, Willoughby v. Grim). The "details" of maintenance are within the discretion of the public entity charged with the road. But the broad distinction between maintenance and improvement is built into the statute's plain language.
The dual-authority question (whether SDCL 31-13-50's permissive ch. 9-43 financing flows through to the county under SDCL 31-13-51's last sentence) turned on the standard SD doctrine of subordinate-government authority. A county has only the powers expressly granted or necessarily implied (Olesen v. Town of Hurley, Sioux Falls Employees, Schryver v. Schirmer). SDCL 31-13-50's permissive authority is granted to the township board, not to the county. The pull-through in SDCL 31-13-51's last sentence (county "shall perform the duties...required of the township board") covers duties, not permissions.
The AG also noted that SDCL 31-13-52 (the apportionment method for SDCL 31-13-51 assessments) is internally inconsistent with ch. 9-43's multi-year installment and interest-bearing framework. SDCL 31-13-52 directs the auditor to add the assessment to the general property tax, subject to review and equalization the same as other taxes. That is a one-shot annual assessment, not a multi-year installment with interest. The two financing methods are structurally different.
The opinion's broader principle is conservative reading of statutory authority for subordinate governments. Counties act within statutorily-defined powers. Township-level authorities don't automatically flow to counties just because a statute mentions them. If the Legislature wants to give counties access to ch. 9-43 financing for unorganized-township-road work, it can do so expressly.
Citations and references
Statutes:
- SDCL 31-12-26 (county secondary road duty)
- SDCL 31-13-12 (county aid road designation)
- SDCL 31-13-32 through 31-13-54 (township road improvement and maintenance framework)
- SDCL 31-13-33 (improvement definition)
- SDCL 31-13-50 (permissive ch. 9-43 financing for improvements)
- SDCL 31-13-51 (front-foot maintenance/repair assessment)
- SDCL 31-13-52 (apportionment via auditor and general property tax)
- SDCL ch. 9-43 (municipal special assessment financing)
- SDCL ch. 31-12A (county road districts)
Cases:
- Krier v. Dell Rapids Township, 2006 S.D. 10, 709 N.W.2d 841
- Willoughby v. Grim, 1998 S.D. 68, 581 N.W.2d 165
- Bland v. Davison County, 507 N.W.2d 80 (S.D. 1993)
- Martinmaas v. Engelmann, 2000 S.D. 85, 612 N.W.2d 600
- Loesch v. City of Huron, 2006 S.D. 93, 723 N.W.2d 694
- State v. Ducheneaux, 2003 S.D. 131, 671 N.W.2d 841
- Dahn v. Trownsell, 1998 S.D. 36, 576 N.W.2d 535
- State v. Myrl & Roy's Paving, Inc., 2004 S.D. 98, 686 N.W.2d 651
- Olesen v. Town of Hurley, 2004 S.D. 136, 691 N.W.2d 324
- Sioux Falls Employees v. City of Sioux Falls, 233 N.W.2d 306 (S.D. 1975)
- Schryver v. Schirmer, 171 N.W.2d 634 (S.D. 1969)
- Matters v. Custer County, 538 N.W.2d 533 (S.D. 1995)
- Bryant v. Butte County, 457 N.W.2d 467 (S.D. 1990)
Prior AG opinions:
- A.G.O. 95-01 (county road maintenance standards)
- A.G.O. 93-01 (section-line highways)
- A.G.O. 89-17 (mandatory procedure for board to locate public highway)
Source
Original opinion text
OFFICIAL OPINION NO. 07-01
June 12, 2007
Robert W. Klimisch
Yankton County State's Attorney
P.O. Box 58
Yankton, SD 57078
Ability of a Board of County Commissioners to Maintain or Repair Roads within an Unorganized Township
Dear Mr. Klimisch:
You have requested an opinion from this Office based upon the following factual situation:
FACTS:
The Yankton County Commission wants to asphalt and grade an existing gravel road within an unorganized township of Yankton County. The unorganized township in question is located along the bluffs of the Missouri River near Lewis and Clark Lake. The property on the north side of the road is predominately agricultural in nature. The property on the south side of the road is being developed for non-agricultural and recreation oriented residences. The township road in question is not covered by any existing road district.
Based upon the above facts, you have requested answers to the following questions:
QUESTIONS:
-
Pursuant to SDCL 31-13-51, a Board of County Commissioners has the power to levy a special front foot assessment, not to exceed eighty cents per front foot, for the purpose of maintaining or repairing roads within an unorganized township. Does maintaining or repairing include asphalt surfacing and/or final grading?
-
Does a Board of County Commissioners have the ability to use the provisions of SDCL ch. 9-43 to finance the repayment of the cost of any "maintaining or repairing" undertaken pursuant to SDCL 31-13-51?
IN RE QUESTION 1:
SDCL 31-13-51 states:
The township board of supervisors or, in the case of any township which is no longer organized, the board of county commissioners, prior to the assessment of real property within the township, or unorganized township, for the next fiscal year, may levy annually for the purpose of maintaining or repairing street surfaces, whether of a permanent type or not, a special front foot assessment not to exceed eighty cents per front foot upon the real property fronting and abutting the roadway. Such assessment shall be apportioned on a front foot basis and shall be levied pursuant to § 31-13-52. If the board of county commissioners is levying a special assessment on real property pursuant to this section, the board of county commissioners shall perform the duties, as applicable, that are required of the township board of supervisors pursuant to §§ 31-13-32 to 31-13-54, inclusive.
The South Dakota Supreme Court has stated that "no standards for road repair and maintenance exist" in South Dakota law. Krier v. Dell Rapids Township, 2006 S.D. 10, ¶ 17, 709 N.W.2d 841, 845 (citing Willoughby v. Grim, 1998 S.D. 68, ¶ 10, 581 N.W.2d 165, 166). Therefore, the "details" for repair and maintenance remain within the discretion of the public entity charged with such maintenance or repair. Krier, 2006 S.D. 10, [¶]17, 709 N.W.2d at 845 (quoting Willoughby, 1998 S.D. 68, ¶ 10, 581 N.W.2d at 166). My predecessors in this office have recognized and adopted this position. A.G.O. 95-01, 93-01, 89-17; 1963-64 A.G.R. 233. I agree with their conclusions.
The public entity charged with the duty of ensuring a public highway remains safe and passable has wide discretion in determining what the proper level of maintenance and repair is for that road. The only duty placed upon these public entities is that they exercise "reasonable and ordinary care" to preserve the highways in a "reasonably safe condition." Bland v. Davison County, 507 N.W.2d 80 (S.D. 1993); A.G.O. 95-01.
In reviewing SDCL 31-13-32 through 31-13-54 it is clear, however, that the Legislature drew a distinction between improvements to township roads and maintenance and repair of those roads. The Legislature, in SDCL 31-13-32 through SDCL 31-13-50, speaks specifically of "improvements." In SDCL 31-13-33 the Legislature, in effect, defined an improvement by stating:
Whenever the board of supervisors of any township deem it necessary to open, widen, grade, gravel, surface with oil or other bituminous material, pave, repave, bridge, construct a viaduct upon or over, erect equipment for street lighting in, curb, gutter, drain, or otherwise improve any streets within platted land or subdivision for which a special assessment is to be levied, it shall declare in a resolution the necessity of the improvement...
These statutes deal solely with that process. By comparison, SDCL 31-13-51 and -52 speak in terms of "maintenance and repair" of township roads.
"Words or phrases in a statute must be given their plain meaning and effect." Martinmaas v. Engleman, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611. Statutes must be construed according to their intent which is determined by the plain, ordinary, and popular meaning of the statute's language, as well as the enactments that relate to the same subject. Loesch v. City of Huron, 2006 S.D. 93, ¶ 8, 723 N.W.2d 694, 697 (citing State v. Ducheneaux, 2003 S.D. 131, ¶ 9, 671 N.W.2d 841, 843; Dahn v. Trownsell, 1998 S.D. 36, ¶ 14, 576 N.W.2d 535, 539). The foregoing analysis of the statutes indicates that the Legislature intended a distinction be drawn between an improvement and maintenance or repair. While no definition of maintenance or repair exists, the plain meaning of the terms, and common sense, indicate they are something less than an improvement. It is my opinion that the asphalt surfacing or paving of a gravel township road would be an improvement as envisioned by SDCL 31-13-33, and would not fall under the maintenance or repair provision of SDCL 31-13-51.
IN RE QUESTION 2:
The last sentence of SDCL 31-13-51 states that "[i]f the board of county commissioners is levying a special assessment on real property pursuant to this section, the board of county commissioners shall perform the duties, as applicable, that are required of the township board of supervisors pursuant to §§ 31-13-32 to 31-13-54, inclusive." SDCL 31-13-50 states, in pertinent part, that "... the board of supervisors of a township may use, as a method for the financing or repayment for the improvement, the provisions of chapter 9-43." SDCL ch. 9-43 deals with a municipal government's use of special assessments to finance improvements. Specifically, SDCL 9-43-29 allows a municipality to collect special assessment payments in any number of annual installments not exceeding twenty-five. Also, SDCL 9-43-31 allows the municipality to fix the interest rate to be borne by unpaid installments collected under the chapter.
Yankton County, operating under SDCL 31-13-50 and -51, would like to finance any maintenance or repairs to the road in question through special assessments levied and collected according to the provisions of SDCL ch. 9-43. Essentially the question is whether the last sentence of SDCL 31-13-51, by way of SDCL 13-13-50, allows the County access to the financing provisions available to municipalities in ch. 9-43?
It is my opinion that a county commission may not use the provisions of SDCL ch. 9-43 to finance an assessment made under SDCL 31-13-51 for maintenance or repair to unorganized township roads.
The purpose of statutory construction is to ascertain the intent of a law from a review of the language expressed in the statute. Martinmaas, 2000 S.D. 85, ¶ 49. "Words or phrases in a statute must be given their plain meaning and effect." Id. In interpreting a statute, only when the language used is unclear or ambiguous should a person then look beyond the express language to determine the Legislature's intent. State v. Myrl & Roy's Paving, Inc., 2004 S.D. 98, ¶ 6, 686 N.W.2d 651, 654.
The plain language of SDCL 31-13-51 directs that a county commission must perform those acts affirmatively required of a township board of supervisors by SDCL 31-13-32 through 31-13-54. However, the language used in SDCL 31-13-50 is merely permissive in nature. SDCL 31-13-50 creates no affirmative duty on behalf of the township board of supervisors to use the financing provisions of ch. 9-43. Therefore, a county commission operating under SDCL 31-13-51 is likewise not required to use the provisions of SDCL ch 9-43.
It is well established that a county possesses only those powers conferred upon them by specific constitutional or statutory authorization, along with those powers incidental to or implied by an authorized power. See Olesen v. Town of Hurley, 2004 S.D. 136, 691 N.W.2d 324; Sioux Falls Employees v. City of Sioux Falls, 233 N.W.2d 306 (S.D. 1975); Schryver v. Schirmer, 171 N.W.2d 634 (S.D. 1969); A.G.O. 89-17. The language of SDCL 31-13-50 is permissive in nature and creates no duty on behalf of a county. Because of this, the last sentence of SDCL 31-13-51 is not adequate justification to find that a county has been specifically, or impliedly, granted by statute the authority to use the municipal special assessment provisions of SDCL ch. 9-43. A county is precluded from using those provisions to finance the maintenance or repair of unorganized township roads absent statutory authorization.
Furthermore, the statute itself contradicts the interpretation put forward by Yankton County. SDCL 31-13-51 states that an assessment made under its terms "shall be apportioned on a front foot basis and shall be levied pursuant to SDCL 31-13-52." SDCL 31-13-52 states:
The township board of supervisors prior to the assessment of real property may, by resolution, designate the real property, the lot, or the portion of lots or real property against which the assessment is to be levied, the amount of the assessment against the real property, lot or portions thereof for such purposes, and direct the county auditor to add such assessment to the general assessment against the property to be collected as township taxes for general purposes. The assessment shall be subject to review and equalization the same as assessments or taxes for general purposes. For the purposes of this section, "front foot" shall mean the actual front of the premises as established by the buildings thereon, record title and use of the property regardless of the original plat thereof.
The Legislature clearly intended that any assessment for maintenance and repair under SDCL 31-13-51 shall be assessed and levied according to the provisions of SDCL 31-13-52, and not according to the special assessment provisions of SDCL ch. 9-43.
Moreover, it should be noted that there are other statutory avenues that allow a county to undertake maintenance and repair of roads within an unorganized township. First, SDCL 31-12-26 states:
Each board of county commissioners and county superintendent of highways in organized counties, shall construct, repair, and maintain all secondary roads within the counties not included in any municipality, or organized civil township, or county road district organized pursuant to chapter 31-12A.
Our Supreme Court has recognized that this is an affirmative duty that falls upon a county. Matters v. Custer County, 538 N.W.2d 533 (S.D. 1995); Bryant v. Butte County, 457 N.W.2d 467 (S.D. 1990). Also, a county may designate a road within an unorganized township as a county aid road according to SDCL 31-13-12, which states:
The board of county commissioners of each county is hereby empowered to designate in its discretion township roads or roads in unorganized townships within the county, as it may deem advisable and in the public interest as "county aid roads," and to expend any funds available from the county highway funds for laying out, constructing, graveling, and maintaining such township roads or roads in unorganized townships so designated as "county aid roads."
Thirdly, a county road district may be formed under the provisions of SDCL ch. 31-12A to construct or maintain roads in any area outside the boundary of a municipality. SDCL 31-12A-1.
In conclusion, my answer to your first question is no. The statutory scheme created by SDCL 31-13-32 though 31-13-54, and the plain language of the terms used therein clearly reveals that the phrase "maintenance or repair" is something different than an improvement as defined by SDCL 31-13-33. The answer to your second is no. The language of SDCL 31-13-50 and -51 does not specifically or impliedly authorize a county to use the municipal special assessment provisions of SDCL ch. 9-43. As such, Yankton County may not use these provisions to finance the maintenance or repair of roads within an unorganized township.
Very truly yours,
Larry Long
ATTORNEY GENERAL
LL/lde