April 4, 1975
Mr. Gerald Andrews, Commissioner
Bureau of Administration
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-63
The effect of Section 12 of the Enabling Act of February 22, 1889
Dear Mr. Andrews:
You have requested an opinion from this office as to the effect of Section 12 of the Enabling Act of February 22, 1889. That section provides:
That upon the admission of each of said states into the union, in accordance with the provisions of this act, fifty sections of the unappropriated public lands within said states, to be selected and located in legal subdivisions as provided in section 10 of this act, shall be, and are hereby granted to said states for public buildings at the capital of said states for legislative, executive, and judicial purposes, including construction, reconstruction, repair, renovation, furnishings, equipment, and any other permanent improvement of such buildings, and the acquisition of necessary land for such buildings, and the payment of principal and interest on bonds issued for any of the above purposes.
You indicate in your request: 1) that 15,776 acres of that original trust still exists; 2) that the approximate value of this property is $893,000, and; 3) that incoming money from these properties is presently diverted to the general fund. Based on this factual situation you ask:
1) Are the revenues realized from the sale and/or rental of this trust still available to the purposes stated in the Enabling Act?
2) If the answer to #1 is yes, is this money available to the Bureau of Administration for the stated purposes?
3) If the answer to #2 is yes, what, if any, special legislation is required to transfer this money to one of the funds used for the purpose of maintaining and restoring the capitol building?
In an Official Opinion found at 1917-1918 AGR 501, 502, the Attorney General briefly discussed the impact of Section 12 of the Enabling Act:
In making this grant the United States vested the title to these lands in the state for the purposes mentioned, but in such a manner as to vest the absolute control and disposition of the lands in the state.
It is my opinion that the answer to your first question is YES: Revenues realized from the sale or rental of these lands are to be used for the purposes stated in Section 12 of the Enabling Act. Technically it would seem that there should be a special fund established for these Section 12 funds rather than reverting them into the general fund. The Enabling Act is valid law and as such its provisions are not merely permissive.
The answer to your second question is NO. Before Section 12 funds can be appropriated and spent for the purposes authorized in Section 12 the Legislature must appropriate them. Section 12 funds are to be used for the purposes stated in Section 12, but the determination of it, when, and where to appropriate them is a matter for the Legislature. (See South Dakota Constitution Article XII Section 1.)
Since the answer to your second question is NO, there is no need to discuss the third question.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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