November 21, 1983

Mr. Maurice C. Christiansen 
Auditor General 
Department of Legislative Audit 
435 South Chapelle 
Pierre, South Dakota 57501

Official Opinion No. 83-45

Deposit of Proceeds of Sale of Surplus County Highway Equipment

Dear Mr. Christiansen:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

The proceeds of the sales of surplus county highway equipment are being deposited into many different funds by the various counties.

Based upon the above facts, you have asked the following question:

QUESTION: 

Must the proceeds of the sales of surplus county highway equipment be deposited into the county General Fund as indicated in SDCL 7-29-13, or can these proceeds be deposited into any county fund at the discretion of and Board of County Commissioners, if the sales are made pursuant to the authority of SDCL 7-32?

SDCL 7-29-13 applies to the sale and exchange of real estate. Therefore, it would be inapplicable to the disposition of funds received for the sale of surplus county highway equipment.  Instead, the provisions of SDCL 7-32, which deal with the disposition of surplus county property, are applicable.

Specifically, SDCL 7-32-1 states (emphasis added): 

The boards of county commissioners shall constitute boards of survey for their respective counties and when any personal property in the custody of  the county officers shall become unfit for use by reason of change, wear, tear, or otherwise and is beyond repair, it shall be the duty of the said board to inspect, condemn, appraise, and sell such property at public or private sale as, in its judgment, willbe most expedient, or it may exchange such property for other personal property required for use of the county. All money derived from the sale of such property shall be paid to the county treasurer.  A note shall be made in the inventory for that year of the condemnation and sale of such property.

You will note that the proceeds will go to the county treasurer.  There is no provision for determining into which specific county fund such proceeds must go.  Therefore, it is my opinion that the answer to your question is that the proceeds of the sale must go to the specific county fund in which the surplus property was initially inventoried.  In your particular case, this could probably be the County Highway Fund.

Respectfully submitted,

Mark V. Meierhenry
Attorney General