April 20, 1976
Mr. D.G. Syvertson
Clark County State's Attorney
Clark, South Dakota 57225
OFFICIAL OPINION NO. 76-44
Application of S.B. 188 (1976) to real property acquired through county tax deed
Dear Mr. Syvertson:
You have requested an opinion based on the following factual situation:
On February 21, 1957, Clark County, South Dakota, acquired by "Treasurer's Tax Deed to County," under tax deed proceeding, a tract of land adjoining the City of Clark, consisting of approximately forty acres. The property is currently leased to the Clark County 4-H Association but only part is actually being used. A local industrial development corporation has approached the County Commissioners indicating that it-would like to lease or purchase, on a negotiated basis, a part of this particular property as a site for future industrial expansion.
Section I of S.B. 188 (1976) which will become effective July I, 1976, provides, in part, that every county shall have the power to lease or sell on a negoatiated basis and convey any real property to a nonprofit local industrial development corporation, to be used for an authorized public purpose.
However, certain provisions in SDCL 7-29 and SDCL 7-31 also prescribe procedures for sale of real property held by a county, including property acquired by tax deed, and SDCL 7-31-31 specifically provides for the apportionment of the proceeds from the sale of such land. Therefore, in view of the above statutes, you ask the following questions:
1. May tax deed land be sold or leased, on a negotiated bases, to a nonprofit local industrial development corporation after July 1, 1976, pursuant to Senate Bill 188?
2. Where tax deed has been taken upon a single described tract of land consisting of approximately 40 acres, may the county sell or lease only a part of such tract to a nonprofit local industrial development corporation pursuant to Senate Bill 188?
It is my opinion that the answer to your first question is YES. After July 1, 1976, a county may negotiate with a "local industrial development corporation" qualifying under Section 2 of S.B. 188 (SL 1976, ch. 63) for the lease or sale of "any real property of the county." Property acquired by tax deed would certainly be included therein.
I find no conflict with the applicable provisions of SDCL 7-29 and 7-31 cited in your factual situation. SDCL 7-29-2 and 7-31-15 use permissive language in authorizing the disposition by a county of tax deed property. Therefore, the County Commissioners are vested with total discretion in determining the time and method of sale. Once official action has been taken, the Commissioners must, of course, follow the statutory procedure for completing the sale. Pursuant to S.B. 188, the sale is to be made on a negotiated basis.
Since S.B. 188 does not address the matter of disposition of the net proceeds from a sale, I agree with the conclusion you reach that said funds should be apportioned pursuant to SDCL 7-31-31. However, the apportionment of proceeds has no direct relation to the manner of sale, and a county may utilize S.B. 188 procedures.
In my opinion, the answer to your Question No.2 is also YES. At 1943-44 AGR 265, it was stated in regard to the question of whether a large parcel of county real property could be offered for sale in separate tracts:
In the sale of tax deed land it is the duty of the officer conducting the sale to accept the highest bid for the land and a like duty devolves upon the Board, in the matter of approval or disapproval, to act in the best interests of the county, and as to what is for the best interests of the county is a matter within the judgment of the Board, See A.G.R. H. C. McDonnell June 23, 1943, 1941-42 A.G.R. 305.
I agree with the logic of that opinion and find no limitation in S.B. 188 which would prohibit a partial sale or lease by the county.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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