STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 2, 1966

James D. Owens
State’s Attorney, Hyde County
Highmore, South Dakota 57345

OFFICIAL OPINION NO. 67-68 pg. 14

Libraries. Purchase of existing privately owned building for use as a library.

You have requested an official opinion relative to the following factual situation:

"The Hyde County Library Board has notified the County Commissioners that in its opinion the existing library facilities of the county library maintained in pursuance to SDC 12.25 and acts amendatory thereof is inadequate for library purposes. The board may purchase an existing privately owned building which it has determined will be adequate as a library. The board has requested that the commissioners levy a tax in the amount of one and one-half mills as provided by SDC 1960 Supp. 12.2303, as amended in Ch. 49 of the Session Laws of 1963, which levy would more than pay the costs of purchasing such building to be used as such library."

You have asked the following questions in regard to such factual situation:

"1. Can the County Commissioners make a one and one-half mills levy in pursuance to SDC 1960 Supp. 12.2303, as amended by Ch. 49 of the Session Laws of 1963 for the purpose of purchasing such existing privately owned building to be used for library purposes?

"2. If such levy cannot be made, can the Commissioners purchase such building for library purposes?

"3. If such purchase can be made, what procedure must be followed to make a valid purchase of such building?"

It is fundamental that a County, being an artificial being, and a creature of statute, has no inherent powers but may exercise only such powers as have been expressly conferred upon it, or that can be necessarily inferred from its express powers.

Pomerane v Washabaugh County, 61 SD 422, 249 NW 734:

State ex rel Bell v Board of County Commissioners, 68 SD 237, 300 NAM 832; State ex rel Jacboson v Hansen, 75 SD 476, 68 NW(2) 480.

It is also fundamental, as I stated in my opinion reported in 1963-64 AGR 120, that in case there is a reasonable doubt as to the existence of a particular power of the governing board of a county, the right to exercise such power must be resolved against the board. (See also 20 CJS 852 (notes 30 and 31) and 37 Am Jur 725 (notes 16 and 17.)

SDC 1960 Supp. 12.2303 as amended by Ch. 49 of the Session Laws of 1963 authorizes a tax levy not to exceed one and one-half mills for the following purposes:

of acquiring a site, constructing, renovating, improving, remodeling, altering, adding to or repairing a courthouse, office, or jail building . . .

Certainly, the acquisition of an existing building for library purposes cannot qualify within the terms "acquiring a site, the construction, remodeling, altering, adding to or repairing" of public buildings. Nor can such acquisition qualify as being a "courthouse, office, or jail building."

I must answer question No. 1 "No". Such tax cannot be levied for the reason that the purpose as above described does not come within the express grant of authority, nor can it be implied from such express grants of power.

SDC 12.25 and acts amendatory thereof authorizes the establishment of free libraries under the control of the counties, which library is managed under the jurisdiction of county library trustees appointed by the commissioners. Such trustees by SDC 12.2503 have the duty "to provide suitable accommodations for the free public library and for the accommodations of the public in using the same." Such trustees (SDC 1960 Supp. 12.2304) must estimate the expenses for the following year for the "maintenance and extension of the county free public library for the ensuing year" and certify such to the county commissioners. The county commissioners have the duty to levy a tax, not exceeding one-half of one mill, the proceeds of which shall be used for maintenance and extension of such library.

It is apparent that the furnishing of such libraries to its citizens is a county purpose. It is also apparent that if any facilities are necessary for library purposes that such monies must come from the county funds by levy of taxes made by the county commissioners.

In my opinion reported in 1963-64 AGR 120, and opinions of my predecessors therein cited, it has been held that the commissioners may expend public funds to acquire existing buildings to be used for "county purposes".

In answer to question No. 2, I must answer such "Yes". The county commissioners may authorize the expenditure of county funds for the purchase of an existing privately owned building to be used as the county free library.

SDC 1960 Supp. 12.2302 provides the authority for the county commissioners to provide for the purchase of such building, but such statutory authorization provides that no expenditure for such purpose "greater than can be paid out of the annual revenue of the county for the current year, shall be made unless the question of such expenditure shall have first been submitted to a vote of the qualified electors of such county and shall have been approved by a majority of the votes so cast; and the board shall determine the amount and rate of taxes to be submitted to a vote for such purposes."

This statutory limitation must guide you in answering question No. 3. If there are sufficient county funds available, and excluding the levy provided in SDC 1960 Supp. 12.2303, as amended by Ch. 49 of the Session Laws of 1963, the county commissioners may place such funds necessary for such purpose in the regular county budget for the ensuing year and purchase such building without submitting such to the vote 01 the electorate. On the other hand, if there are not sufficient funds, or the commissioners are unwilling to expend such amounts from existing county funds, it must determine the amount and rate of taxes necessary and submit such purchase to the vote of the electorate.