STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 13, 1974

James E. Law
State's Attorney, Deuel County
Clear Lake, South Dakota 57226

OFFICIAL OPINION NO. 74-52

Contract to transfer county hospital

Dear Mr. Law:

You have requested my offical opinion on the question as to whether there is any legal basis for a contract entered into between Deuel County and the City of Clear Lake with regard to the gratuitous transfer by the county to the city of the Deuel County Memorial Hospital. This contract was signed on August 1, 1973.

By amendment to Section 3, of Article IX of the South Dakota Constitution, every local government may exercise, perform or transfer any of its powers or functions, including financing the same jointly or in cooperation with any other governmental entities, whether within or without the state, except as the Legislature shall provide otherwise by law.

The Legislature has provided a method whereby gratuitous transfers of property may take place between counties and cities. This is contained in SDCL 6-5-1, 6-5-2 and 6-5-3, where the property is not held for public use or which is about to be abandoned for public use. Those sections appear to have clarified the situation concerning such transfers with regard to which two former opinions of this office dealt.

However, in reviewing 1959-60 AGR 335, which held that the county could not transfer property as a gift and 1961-62 AGR 6, which held that under certain conditions such transfer could be made but avoiding other questions as to the restrictive nature of the statute; it is my opinion that SDCL 6-5-2 and 6-5-3 now permit such transfer. This being the case, if the contract between the county and city is otherwise valid, there is a legal basis for such transfer.

In view of this answer, it is unnecessary to answer your second question as to the long term lease suggestion made by the Auditor General.

Respectfully submitted,

Kermit A. Sande
Attorney General

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