STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 19, 1975

Ms. Mary Dell Cody
State's Attorney
Yankton County Courthouse
Yankton, South Dakota 57078

OFFICIAL OPINION NO. 75-196

Legality of contributions of finances and space by county commissioners to non-profit service organization

Dear Ms. Cody:

You have requested an official opinion from this office based upon the following facts:

Our commissioners contributed in 1975 to an office in Yankton County known as the Contact office. The purpose of this nonprofit office is to coordinate helping services in the county. For example, people that the welfare cannot help, they will help and refer these individuals to one of the approximately 200 service organizations in Yankton.

The office has substantially helped the county. No food referrals have been made to the county as the Contact office has referred these people to other charitable resources.

Last year when the Yankton County Commissioners budgeted monies to Contact, the county auditor questioned the legal basis for doing so. She inquired of the State Department of Audits and they informed her that they could find no legal basis for contributing to Contact.

Now the county commissioners would like to continue to contribute to Contact for 1976 and also let Contact have office space in the County Courthouse.

Based on the above factual situation you ask:

1. May the county commissioners contribute financial assistance to a non-profit service organization such as the one described above?

2. May the county allow such an organization to occupy space in the County Courthouse as its office?

In regard to the second question you raise, it is my opinion that it is not lawful for the county commissioners to authorize a private nonprofit service organization to maintain offices in the county courthouse. Prior Attorney General's opinions have held that county commissioners were without authority to lease a memorial assembly room in a newly constructed courthouse for veteran and other civic-minded organizations, 1937-38 AGR 129, that county commissioners had no authority to rent a portion of the jail for private living quarters nonwithstanding such quarters were not used and had never been used as a portion of the jail, 1951-52 AGR 5, and that a college dormitory cannot be used to furnish housing for the general public even when such a dormitory was not being used for dormitory purposes (1945-46 AGR 246). These opinions, in large part, were based upon the premise that the county courthouse exists for the purpose of housing county officials and providing chambers for a courtroom or for court purposes. It does not exist for the purpose of providing office space for public-spirited nonprofit corporations or associations. It is my opinion that there is no authority to provide office space in a courthouse to any private person, association, or service organization.

With respect to the first question you ask relating to financial contributions, it is my opinion that SDCL 28-13-16 and 28-13-37 do not provide sufficient authority for the county commissioners to make financial contributions to the Contact office. A special statute, such as SDCL 34-3 B-1, relating to a specific area, would appear to me to be necessary before the county commissioners could lawfully provide financial assistance to Contact. In my research of this area, I have not been able to find any such special statutory authority which would enable Yankton County to lawfully make this contribution.

The above conclusions are based on what I believe the law requires, and are not in any way intended to reflect adversely on the Contact office or the desire of the Yankton County Commissioners to aid in assisting an office that they believe has substantially helped the county. The solution to the problem appears to me to be to enact legislation similar to SDCL 34-3B-l to specifically provide by law for the authority you seek. This specific authority is necessary since counties are creatures of statute and have only such powers as are expressly conferred upon them by statute and as may reasonably be implied from those powers expressly granted. State ex rel. Jacobson v. Hanson, 68 N. W. 2d 480 (1955). I am not aware of any specific grant of power which would cover the contribution to Contact, and I do not believe that the provisions of SDCL 28-13, relating to county poor relief, are such as would reasonably imply the power of the county to make such contributions.

The answer to your first question, therefore is NO.

Respectfully submitted,

William Janklow
Attorney General

WJJ:DOC:dh