STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 25, 1968

T.F. Martin
State’s Attorney, Brookings County
Brookings, South Dakota 57006

OFFICIAL OPINION NO. 67-68 pg. 496

Municipalities. City may lease facilities next to city hospital for use as Municipal Home for the Aged.

You have requested my official opinion based upon the following factual situation:

"A Municipal Hospital was constructed by the City of Brookings, with county aid, as provided by statute, in 196f. By virtue of SDC 1960 Supp. 27.19A03, the Board of Trustees of such hospital, consists of two members appointed by the County Commissioners and three by the governing body of the City of Brookings."

"At the present time the City of Brookings is considering the propriety of having a home for the aged constructed adjacent to such Municipal Hospital. It is the present intention that a private corporation will construct such Home for the Aged, and thereafter the building, when constructed, will be leased to the city for a relatively long term thirty (30) years, during which time said home will be managed and operated as a municipal project."

In connection with this factual situation you have submitted these questions:

"1. May the City of Brookings enter into a thirty (30) year lease of a home for the aged to be operated by the city?

"2. If the answer to question 1 is in the affirmative, would the propriety of such lease be subject to approval by the vote of the electorate of the city?

"3. As there is contemplated that the County of Brookings will not render financial aid to the city for the construction of such home for the aged, would it be proper for the present hospital board of trustees (representing both the city and the county) to administer the operations of such home for the aged?

"4. Could the County of Brookings furnish financial assistance to the City of Brookings to operate and maintain such home for the aged, if such home were made available to all residents of the county?"

I have been advised that the "Home for the Aged" comprehends intensive medical care for the aged, and that, while not necessarily furnishing hospital care, certainly such institution will furnish more than just room and board for the residents, and such institution may resemble a nursing home in the care it furnishes.

QUESTION 1: It is elementary that no municipality possesses any inherent authority, but can exercise only such authority as expressly granted by the Legislature, or such as is necessarily implied from such legislative grant. Therefore, the length of time of such lease—except in unusual cases—has no bearing on the problem.

Every municipality in South Dakota, however, possesses many powers. Mainly, these are collected in SDC 45.0201, and amendments thereto, and SDC 1960 Sup. 45.0201-1. Among such powers all municipalities possess is the following, provided in SDC 45.0201 (13), which provides that all municipalities shall have power:

"to acquire by lease, purchase, gift, condemnation or other lawful means and hold in its corporate name or use and control as provided by law, both real and personal property and easements and rights-of-way within or without the corporate limits for all purposes authorized by law or necessary to the exercise of any power granted."

By virtue of SDC 1960 Supp. 45.0202(2), as last amended by Chapter 140 of the Session Laws of 1964, municipalities are authorized by law to establish and maintain "hospitals" which include "a nursing home or home for the aged." (Also amended by Chapter 180 Session Laws of 1968.)

The answer to Question No. 1 is YES.

QUESTION 2: It is my opinion that as the authority is granted to the "municipality" or city to establish and maintain such hospitals, such lea-Se of a home for the aged may be entered into without the consent or favorable vote of the electorate at an election held for that purpose.

Question No. 2 is answered NO.

QUESTION 3: The provisions of SDC 1960 Supp. 37.19A03(4) require that the county which furnishes county aid to a municipal hospital have representation on the board of trustees by the selection of two members. I must assume that the county has not been repaid the funds that it furnished for the original construction, so such county representation on the hospital board of trustees is required.

As it is intended to operate such home for the aged in connection with the municipal hospital, while there is no statutory requirement that the county have representation on such board. Unless it is intended to have a separate board of trustees to manage such home for the aged, the presence of county appointed members on such board of trustees would not render such present hospital of trustees incapable of managing such home for the aged or make it an invalid board.

As long as it intended that the hospital board of trustees will manage such home for the aged, it is my opinion that Question No. 3 should be answered YES. The present board of trustees, notwithstanding the presence thereon of two members appointed by the County Commissioners can properly manage the affairs of such municipality operated old peoples' home.

QUESTION 4: SDC 1960 Supp. 12.0617-2, as last amended by Chapter 38 of the Session Laws of 1963, authorizes the Board of County Commissioners of the several counties, in their discretion, to annually contribute a sum not exceeding twenty thousand dollars to non-profit self-sustaining corporations for the care and accommodation of aged persons under SDC 1960 supp. 27.1209.

I infer from this statute, authority is given the County Commissioners to furnish financial assistance up to twenty thousand dollars annually to operate and maintain such home for the aged.