#25588-a-JKM
2010 S.D. 81

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                 * * * *
STATE OF SOUTH DAKOTA, ex rel,
MARTY J. JACKLEY and
ASSOCIATED SCHOOL BOARDS
OF SOUTH DAKOTA, INC.,                       Plaintiffs and Appellees,
     v.
CITY OF COLMAN,                              Defendant and Appellant.

                                * * * *
                    APPEAL FROM THE CIRCUIT COURT
                     OF THE THIRD JUDICIAL CIRCUIT
                     MOODY COUNTY, SOUTH DAKOTA
                                * * * *

                        HONORABLE TIM D. TUCKER
                                Judge

                                 * * * *

MARTY J. JACKLEY
Attorney General

JEFFREY P. HALLEM
Assistant Attorney General                     Attorneys for appellee
Pierre, South Dakota                           State of South Dakota.

WILLIAM H. ENGBERG
Pierre, South Dakota

RICHARD P. TIESZEN
NAOMI R. CROMWELL of
Tieszen Law Office                             Attorneys for appellee
Pierre, South Dakota                           Associated School Boards.

PAUL M. LEWIS
WILLIAM J. ELLINGSON                          Attorneys for defendant
Flandreau, South Dakota                       and appellant.

                                 * * * *
                                       ARGUED ON AUGUST 25, 2010

                                       OPINION FILED 10/27/10
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MEIERHENRY, Justice

[¶1.]         The question in this case is whether a city can enforce its speed limit

ordinance, instead of state law, on a state trunk highway and thereby direct the fine

to city coffers rather than local school districts. This question was brought to the

South Dakota Attorney General’s attention after the City of Colman, South Dakota,

ticketed speeders on State Highway 34 with a city ordinance violation rather than a

state law violation. The Attorney General notified Colman that the city did not

have authority to enforce the city’s speed limit ordinance on the state highway.

Colman rejected the Attorney General’s opinion and filed an action for declaratory

judgment in circuit court. The circuit court agreed with the Attorney General.

Colman appeals. We affirm and hold that Colman does not have authority to

enforce its city ordinance rather than state law.

[¶2.]         Highway 34 is part of the state trunk highway system and passes

through Colman’s city limits. The speed limit on Highway 34 is set by state law and

violations are classified as misdemeanors. See SDCL 32-25-7. Colman’s city council

enacted city ordinance 10.0201, which duplicated the state speed limit and penalty

classification. See SDCL 32-25-7. When enforcing the speed limit, Colman’s law

enforcement officers ticketed speeders with a city ordinance violation rather than a

state law violation. 1




1.      The Legislature has given city law enforcement the power to arrest those who
        violate state speed limits when the violation occurs on the portion of the state
        highway passing through a city’s jurisdiction. See South Dakota v. Hirsch,
        309 N.W.2d 832, 835 (S.D. 1981); SDCL 9-29-19.

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[¶3.]         The main difference between enforcing the city ordinance rather than

state law lies in the distribution of the fine proceeds. South Dakota law directs that

65 percent of fines collected from city violations go to the city treasury and 35

percent to the State. SDCL 16-2-34. In contrast, 100 percent of the fines collected

from state law violations go to school districts in the county where the fine is

assessed. S.D. Const. art. VIII, § 3. 2

[¶4.]         Colman claims it has statutory authority to enforce its own ordinance

rather than state law. Colman gleans its authority from the following four statutes:

SDCL 9-31-1; SDCL 9-31-3; SDCL 9-29-1; and, SDCL 32-14-5. The first statute,

SDCL 9-31-1, gives a city the power to regulate the use of certain vehicles. It

provides that “[e]xcept as otherwise provided, every [city] may regulate the use of

motor vehicles, bicycles, house cars, house trailers, trailer coaches, traction engines,

tractors, and road rollers.” Id. The second statute, SDCL 9-31-3, grants a city the

power to regulate the speed of vehicles. It provides that “[e]very [city] shall have

power to regulate the speed of animals, vehicles, motor vehicles, cars, and

locomotives.” Id. The third statute, SDCL 9-29-1, gives a city the power to enforce

its ordinances within, and one mile surrounding, the city limits.3 Id. Finally,



2.      The Associated School Boards of South Dakota, Inc. joined the State as a
        party plaintiff because Colman’s enforcement of its ordinance, rather than
        state law, reduced the amount of money that school districts in the area
        received.

3.      SDCL 9-29-1 provides:

              Every [city] shall have power to exercise jurisdiction for all
              authorized purposes over all territory within the corporate
              limits and over any public ground or park belonging to the [city],
                                                                    (continued . . .)
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SDCL 32-14-5 provides cities with limited regulatory authority for “traffic on

highways under their jurisdiction.” Id. 4 Colman claims these statutes, collectively,

demonstrate that the Legislature “intended to empower [cities] with the authority

to regulate traffic over all territory within their corporate limits.”

[¶5.]         In analyzing Colman’s claim, we continue to apply our longstanding

rule that cities have only those powers expressly granted to them by the

Legislature. Elkjer v. City of Rapid City, 2005 S.D. 45, ¶ 9, 695 N.W.2d 235, 239.

“A grant of authority includes those incidental or implied powers that are necessary

to enable a municipality to perform the function authorized.” Id. (citations

omitted). Because cities have “no inherent powers, and none of the attributes of

sovereignty,” the scope of their implied powers falls under “a reasonably strict

standard.” Id. “Whatever latitude these implied powers might include will depend

upon the circumstances of each case.” Id.

_______________________
(. . . continued)
               whether within or without the corporate limits, and in and over
               all places, except within the corporate limits of another [city],
               within one mile of the corporate limits or of any public ground or
               park belonging to the [city] outside the corporate limits, for the
               purpose of promoting the health, safety, morals, and general
               welfare of the community, and of enforcing its ordinances and
               resolutions relating thereto.

4.      SDCL 32-14-5 provides:

              Local authorities may provide by ordinance for the regulation of
              traffic on highways under their jurisdiction by means of traffic
              officers or traffic control devices on any portion of the highway
              where traffic is heavy or continuous or local authorities may
              prohibit other than one-way traffic upon certain highways and
              may regulate the use of the highway by processions or
              assemblages.


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[¶6.]         We acknowledge that the four statutes Colman relies on give a city the

power to regulate certain traffic within its jurisdiction. But we must view the city’s

limited jurisdiction in the context of the broader jurisdictional scheme of the state

highway system. The Legislature categorizes state highways as: (1) municipal

streets and alleys; (2) state trunk highways; (3) county highways; and, (4) secondary

highways. See SDCL 31-1-4.

[¶7.]         The Legislature also “clarif[ies] the duties and powers of the various

governmental state agencies charged with the administration of the highways in

South Dakota.” SDCL 31-1-5. 5 The Legislature charges the Department of

Transportation with the “control[ ] and supervis[ion]”of “highways designated by

statute” as the “state trunk system.” SDCL 31-1-5(1). County commissioners




5.      SDCL 31-1-5 provides:

              For the purpose of clarifying the duties and powers of the
              various governmental state agencies charged with the
              administration of the highways in South Dakota, the following
              definitions of highway systems shall be applicable:
              (1)    “State trunk system,” the highways designated by statute
              to be controlled and supervised by the Department of
              Transportation;
              (2)    “County highway system,” the highways designated by
              the board of county commissioners in organized counties under
              the supervision of these bodies that have been approved by the
              Department of Transportation;
              (3)    “Township highways,” the secondary highways in
              organized townships that are administered by a board of
              township supervisors;
              (4)    “County secondary highways,” the rural local highways in
              organized counties, excluding the approved county highway
              system, that are under the supervision of a board of county
              commissioners.

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oversee county and secondary highways, and township supervisors administer

township highways. Id.

[¶8.]        Additionally, the Legislature specifically gives the State

Transportation Commission, a commission in the South Dakota Department of

Transportation, the authority to regulate speed limits on the state trunk highway

system. SDCL 1-44-4; SDCL 32-25-7. State law outlines how speed limits on state

trunk highways are set and what penalties exist for violations:

             The Transportation Commission may establish, by rules
             promulgated pursuant to chapter 1-26, a maximum speed limit
             of less than that established by §§ 32-25-1.1 and 32-25-4 upon
             any highway or portion of highway on the state trunk highway
             system and any portion of highway under the jurisdiction of a
             state or federal agency if requested by the agency. The speed
             limit established by the commission is the maximum speed that
             any person may drive or operate any vehicle or class of vehicle
             upon that portion of highway. The Department of
             Transportation shall conspicuously post signs at the beginning
             and end of a portion of highway to show the maximum speed
             limit established by the commission on that portion of highway.
             A violation of any maximum speed limit established by the
             commission pursuant to this section is a Class 2 misdemeanor.

SDCL 32-25-7.

[¶9.]        The Legislature’s overall scheme and apportionment of authority over

the various highways signals legislative intent to preempt the field. This scheme

confines a city’s authority to the “streets and alleys within the limits of municipal

corporations.” SDCL 31-1-4. Other highways are under the supervision and control

of other governmental agencies. See SDCL 31-1-5. Notably, the Legislature gives

the control and supervision of a state trunk highway, such as Highway 34, to the

State Department of Transportation and the specific power to set speed limits to the

State Transportation Commission. SDCL 31-1-5(1). This delegation of control and

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supervision of state trunk highways to state agencies demonstrates the

Legislature’s intent in this field.

[¶10.]        We have said that one way to determine if a state law preempts a local

ordinance is to look at whether the state law “occup[ies] a particular field to the

exclusion of all local regulation.” In re Yankton County Com’n, 2003 S.D. 109, ¶ 15,

670 N.W.2d 34, 39. We find preemption if “the scheme of [state] regulation is

sufficiently comprehensive to make [a] reasonable [ ] inference that [the

Legislature] ‘left no room’ for supplementary [city] regulation.” Id. ¶ 16, 670

N.W.2d at 39.

[¶11.]        Here, the regulatory scheme gives control of state trunk highways to a

state agency. The speed limits are set by a state agency and violations are state

offenses. Moreover, the Legislature has not expressly authorized cities to regulate

speed limits on state trunk highways. See SDCL 32-14-3. A reasonable inference

drawn from the statutes is that the Legislature intended to “occupy the field” of

regulating state trunk highways and did not intend to leave “room for

supplementary [city] regulation[.]” See Yankton County Com’n, 2003 S.D. 109, ¶ 21,

670 N.W.2d at 41. Consequently, we hold that Colman did not have authority to

enforce a city speed limit ordinance on state Highway 34.

[¶12.]        Affirmed.

[¶13.]        GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

SEVERSON, Justices, concur.




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