October 12, 1976
Mr. George H. Danforth
Beadle County State’s Attorney
312 Kansas Avenue SE
Huron, South Dakota 57350
OFFICIAL OPINION NO. 76-95
SDCL 28-17-4 Services required of funeral directors
Dear Mr. Danforth:
You have requested an interpretation of SDCL 28-17-4, as amended by the 1976 Legislature, which provides:
On county burials, the funeral director in charge shall furnish casket and outside container and conduct the funeral services in customary form, and the county shall allow the funeral director for merchandise and such services rendered, a sum to be established by resolution of the board of county commissioners in such county at their organizational meeting.
QUESTION:
The specific question you ask is "Inasmuch as the prior statute establishing a $300 maximum fee was repealed and the county organizational meeting does not take place until January, 1977, is the county bound to pay for county burials the sum previously fixed by statute or may the county negotiate for payment of county burials during the transition period until the organizational meeting in January?"
In order to fully effectuate the intent of the Legislature (see Watertown Independent School District No. 1 of Codington County v. Thyen, 159 N.W. 2d 122) and give full meaning to SDCL 28-17-4, it is my opinion that the county commissioners have the authority to set a fee prior to the 1977 organizational meeting. I must assume that the Legislature was aware of the fact that as of July 1, 1976, the $300 maximum fee would be replaced by the new language authorizing the commissioners to set the fee. Therefore, the Legislature must have also contemplated that the commissioners would have the authority and take positive action to establish a fee during the transitional period. (As of January, 1977, however, the fee must be established at the organizational meeting each year.) To interpret SDCL 28-17-4 in any other manner would be to leave a void in the law for the remainder of the transitional period and would give something less than full meaning to the 1976 enactment.
The county commissioners should, by resolution, establish a fee for payment of county burials for the transitional period between July 1, 1976, and January, 1977, as soon as is practical.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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