November 27, 1995

Kenneth Cotton
Attorney at Law
107 South Main Street
Wagner, SD 57380-3070

OFFICIAL OPINION NO. 95-05

Proposed school district conveyance to Wagner rural fire protection district.

Dear Mr. Cotton:

You have asked for an official opinion from this Office based on the following facts:

FACTS:

The Wagner rural fire protection district, formed in 1989 pursuant to SDCL 34-31A-16, needs a new fire hall to house trucks and equipment, and provide space for training. The Wagner Community School District 11-4 would like to convey real property to the fire district upon which a new facility could be built.

Based on that facts, you have asked the following question:

QUESTION:

May the Wagner Community School District transfer the property to the Wagner Rural Fire Protection District pursuant to SDCL 6-5-2 and 6-5-3.

IN RE QUESTION:

SDCL 6-5-2 provides:

Any county, municipality, sanitary district, township or school district may convey and transfer any real property which is held or owned by it, the title to which has been obtained and which is not held for public use or which is about to be abandoned for public purposes, to another political subdivision or nonprofit corporation for public purposes and accommodation without offering the property for sale and without requiring said political subdivision or nonprofit corporation to pay therefor.

SDCL 6-5-3 provides:

If the governing body deems it advisable and to the best interest of the public to convey any such property to another political subdivision or nonprofit corporation pursuant to ÀÀ 6-5-2, it shall by resolution direct that said property be so conveyed and transferred. Thereupon a deed of conveyance shall be made to the political subdivision or nonprofit corporation, which deed vests in the grantee all the right, title and interest of the transferor in and to the real property so conveyed.

Based upon a review of the above statutes, it is my opinion that if the school district has real property available which is not currently being held for public use, it may, upon compliance with SDCL 6-5-3, gratuitously transfer real property to the Wagner Rural Fire Protection District for the purpose of constructing a new fire hall on that property.

The fire protection district is a political subdivision. Although there is no definition of "political subdivision" within SDCL ch. 6-5, pursuant to SDCL 2-14-4 definitions elsewhere in the code can be utilized. Political subdivision is defined in SDCL 1-30-2(4) as:

(4) "Political subdivision" includes counties, municipalities, townships, districts, authorities, and other public corporations and enti¬ties whether organized and existing under charter or general law.

The Wagner Rural Fire Protection District clearly falls within this definition. It is beyond dispute that the use of the property by rural fire protection district would constitute a public purpose; thus the requirements of SDCL 6-5-2 are met.

In rendering the above opinion, I am cognizant of an official opinion rendered by one of my predecessors that a school district is not authorized to make a cash contribution to a volunteer fire department organized under SDCL ch. 34-31A. See AGR 87-33. This opinion, however, relies on general principles of law which are secondary to a specific statute authorizing the activity here in question.

The answer to your question is therefore "yes."

MB:JPH:mas