STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 16, 1975

Mr. Ralph C. Hoggatt
City Attorney
Post Office Box 883
Lead, South Dakota 57754

OFFICIAL OPINION NO. 75-110

Lead city garbage contract

Dear Mr. Hoggatt:

You have requested a supplemental opinion to Official Opinion No. 75-68 and Official Opinion No. 75-100, based on the following additional facts:

The provision in the defeated ordinance, number 680, charging $3.47 per month per dwelling unit for garbage collection was not intended as the sole means of funding garbage collection in the city of Lead.

As of March 27, 1975, the date on which the garbage collection contract with contractor "X" was approved by the city governing body, the city of Lead had available $44,409.03 in funds appropriated for waste collection and disposal for the 1975 fiscal year. Also, the city of Lead, more than one year ago, allocated federal revenue sharing funds in the amount of $38,223.00 for waste collection and disposal, city account number 402. The total amount earmarked for garbage was thus $82,632.03.

The city auditor indicates that the cost to pay all garbage contractors for 1975 is $57,056.72.

The question presented is whether, in light of the fact that ample funds had been allocated for garbage collection and disposal prior to March 27, 1975, the contract between the city of Lead and contractor "X" is valid despite the May 7 referendum defeat of ordinance number 680.

The law which governs the power of municipalities to enter into garbage collection contracts has been discussed at length in Official Opinion No. 75-68 and Official Opinion No. 75-100. A brief summary of the law follows:

Municipalities are granted the power to enter into garbage collection contracts under SDCL 9-32-11, but the power to enter into such contracts is not absolute. The power to contract is limited by referendum. Roush v. Town of Esmond, 73 S.D. 406, 43 N.W. 2d 547 (1950). The power to contract is further limited by the statutory dictates of SDCL 9-21-10:

No contract shall be made by the governing body of any municipality and no expense shall be incurred by any department or any officer thereof ... unless an appropriation shall have been previously made concerning such expense, or the governing body authorized to issue bonds for a specific purpose.

It has already been established that the contract between the city of Lead and contractor "X" was not directly referred to the voters of Lead, although several of the voters who defeated the referendum apparently believed they were also voting down the contract with contractor "X". Ordinance number 680 did not mention contractor "X." The ordinance did, however, provide for the payment of $3.47 per month per dwelling, a figure which coincided with the figure included in the garbage collection contract with the contractor "X." Based on the assumption that the defeated ordinance was intended to fund the contract, I concluded in Official Opinion No. 75-100 that "the legality of the contract depended on funding, which in turn depended upon passage of ordinance number 680."

In light of the additional facts, it appears that the assumption that the ordinance was intended to provide funding for the contract was incorrect. An earmarked sum in appropriation ordinance number 671, sufficient to cover the expenses to be incurred under the garbage collection contract, existed at the time of contracting. This previous appropriation fulfills the requirements of SDCL 9-21-10.

It is therefore my opinion, based on the law (as expressed in the previous two opinions on this matter) and the supplemental facts (provided in your letter of June 6), that the contract between the city of Lead and contractor "X" is valid.

This opinion is not to be construed as being inconsistent with Official Opinion No. 75-68 or Official Opinion No. 75-100, even though the final conclusions do differ. My interpretation of the law remains static. A kaleidoscopic array of fact situations have been sent to my office via phone, letters and personal contacts. It is my sincere hope that "the facts" have stabilized, so that further opinions will be unnecessary.

Respectfully submitted,

William Janklow
Attorney General

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