October 25, 1977

Mr. Richard A. Trankle 
Division of Administrative Services 
Department of Military and Veterans Affairs 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 77-88

Emergency and disaster service districts

Dear Mr. Trankle:

You have requested an official opinion from this office based upon the following factual situation:

FACTS: 

SDCL 33-15-33, prior to July 1, 1977, indicated that any political subdivision was authorized to join with other political subdivisions to form a civil defense district.  Under and during the existence of this section, several city/county civil defense organizations were established as districts, and after July 1, 1977, the revision of SDCL 33-15-33 came into being, which indicated any county could join with other counties to form emergency disaster service districts.  This of course, restricted the city/county combination that was under the old section.  The several city/county district combinations that exist at this time feel that if they were in being prior to the enactment of the revised section, that they should be allowed to remain in existence until a major organizational change is needed, or one of the governmental jurisdictions withdraws from the district and then they would be required to reorganize in accordance with the new revised Section 33-15-33.

Based on the above facts, you ask the following question:

QUESTION: 

Does the new revised law require city/county district organizations established under and in accordance with old SDCL 33-15-33 to be dissolved and reorganized in accordance with the new revised SDCL 33-15-33, or can they exist until a major organizational change takes place?

Prior to the 1977 amendment referred to above, SDCL 33-15-33 read as follows: 
    
In addition to the other provisions of this chapter, any political subdivision is authorized to join with other political subdivisions to form civil defense districts.  Each political subdivision is authorized to appropriate money out of the general fund for the purpose of paying salaries and expenses of such civil defense district.

In 1977, the Legislature amended SDCL 33-15-33 to read as follows: 
    
In addition to the other provisions of this chapter, any county may join with other counties to form emergency and disaster service districts.  Each county may appropriate money out of the general fund to pay salaries and expenses of such emergency and disaster service district.

The powers of political subdivisions are limited to those expressly authorized by statute or necessarily implied from those expressly granted. City of Watertown v. Mesberg, 82 S.D. 250, 144 N.W.2d 42.  Insofar as the Legislature changes the authority of a political subdivision by law, that change necessarily reflects on the ability of the subdivision to carry out previous functions which were authorized under former provisions of law.  If a political subdivision had authority to do a particular act, but no longer has that authority since the Legislature removed certain powers from them, the political subdivision could not continue to operate under the premise that the former statutory authority somehow continues over into the present.

In the present case, it is clear that the Legislature has changed the specific provisions of SDCL 33-15-33, regarding city participation in such district.  Cities were included in the former version; now only counties are so authorized.  I can only assume that this change was made with the purpose in mind of limiting formations of emergency and disaster districts.

It is my opinion that by changing the language in SDCL 33-15-33 in 1977, the Legislature has removed the authority for municipalities by that section to engage in the formation of civil defense districts.  To the extent that any municipality would already be involved in a civil defense district formed under the provisions of SDCL 33-15-33, the new enactment of the Legislature must be seen as taking priority.  By removing the authority in SDCL 33-15-33 for cities to be involved in civil defense districts, the Legislature has removed that statute as being authorization for a city's continued involvement in such district, even though the city entered into the civil defense district arrangement at a time when they were authorized to do so.

This does not mean, however, that cities cannot, pursuant to the Joint Powers Agreement, enter into joint cooperative agreements with other units of government in areas such as civil defense, where a joint powers agreement would be appropriate.  Your specific question, however, dealt with the civil defense districts established under old SDCL 33-15-33.  Consequently, I have also limited the scope of my opinion to this specific question.

Respectfully submitted,

William J. Janklow
Attorney General

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