April 8, 1976
Senator Sheldon R. Songstad
905 Annway
Sioux Falls, South Dakota 57103
OFFICIAL OPINION NO. 76-40
Do municipalities incorporated under SDCL 9-3-22 have the same legal rights and powers as other towns and municipalities except as otherwise provided by law?
Dear Senator Songstad:
You have requested an official opinion from this office in regard to the following question:
Do municipalities incorporated under SDCL 9-3-22 have the same legal rights and powers as other towns and municipalities except as otherwise provided by law?
SDCL 9-3-22 provides:
Any domestic corporation chartered under the laws of the state of South Dakota for historical or educational purposes, which qualifies as a tax exempt corporation under the laws of the state of South Dakota, may form and name a municipal corporation upon land owned by said corporation or in which it has a legal or equitable interest, by causing the same to be platted by a registered land surveyor and recording said plat in the office of the register of deeds and the county in which said land is located, in the same manner as other lands are platted and filed therein.
SDCL 9-3 deals with the legal requisites which are required for incorporation of municipalities. SDCL 9-3-22 provides for a unique form of municipal corporation and SDCL 9-3-26 specifically provides that municipalities formed under SDCL 9-3-22 do not have the same rights and responsibilities as other municipalities in certain circumstances, i.e., to receive any state or local tax funds or to receive any distribution from either state or local sources (with certain exceptions).
In my opinion, SDCL 9-3-22 provides for the establishment of a municipal corporation which incorporation, although unique, is nonetheless by law a municipal corporation. In SDCL 9-3-26 the Legislature has specified that certain characteristics attributable to other municipalities are not to be attributable to such historical or educational municipalities. Beyond these specific limitations, however, there is nothing of which I am aware which generally limits the corporate powers of such municipalities.
Clearly, the Legislature does not have the power to more specifically limit the powers of historical or educational municipalities. In the absence of such limitations, however, I can only conclude that the Legislature intended such municipal corporations to have the same powers as municipal corporations not formed under SDCL 9-3-22.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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