STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 1, 1966

Rolland G. Jones
State’s Attorney, Moody County
Flandreau, South Dakota 57028

OFFICIAL OPINION NO. 67-68 pg. 30

Minors. Expenses of safekeeping of minor child pending juvenile delinquency hearing are payable by the county rather than the city.

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

"A female child under the age of eighteen years but over the age of fifteen years was arrested in the City of Flandreau for violation of a City Ordinance and a petition was filed in County Court, Moody County, South Dakota to have said child declared a delinquent child. Because the child's parents resided outside the state, a considerable delay was encountered in order to give official notice to the parents as required by Chapter 43.03 SDC 1939, as amended.

"Because the offense was a violation of City Ordinance, which said ordinance was recited in the petition to find the child delinquent, the Moody County Judge ordered the child held, pending the hearing, in the new City Jail, City of Flandreau, as authorized by Chapter 212, 1961 South Dakota Session Laws, the last sentence thereof. The City of Flandreau has women's facilities available in its city jail and a matron also available. The Moody County jail has no facilities for women and it has been the practice of the Moody County Sheriff to deliver women prisoners to the County Jail of Minnehaha County, South Dakota.

"The alleged delinquent was held in the Flandreau City Jail for a period of a week or thereabouts and following disposition of her case, the police matron submitted a bill to the Moody Co. Sheriff for approval, for her services in acting as matron for the girl. The Sheriff disallowed approval and the bill was thereupon submitted to the City Council, City of Flandreau for payment, and said council denied the bill for payment."

Based upon such factual situation, you have asked the following question:

"Assuming that the bill of the matron is reasonable and proper, which governmental subdivision of the State of South Dakota should pay the bill in the instant case, the City of Flandreau or the County of Moody?"

It is my opinion that in the situation presented the obligation to pay the reasonable and proper bill of the matron rests upon the County, rather than the City.

My predecessor, in an opinion reported in 1949-50 AGR 376 dealt with the problem of who was liable to pay the costs of serving warrants, summons, subpoenas and such in juvenile proceedings, as well as who should pay witnesses, fees for witnesses appearing at such proceedings. My predecessor rules that in such case, and because a juvenile delinquency proceeding, while not criminal in character was a proceeding in a constituted court of the state, the expenses of serving process, as provided by SDC 43.0306 and 43.0308 was payable by the county from moneys budgeted for the court, and the county was also liable to pay witness fees which should be paid from the moneys budgeted for witness fees.

In my opinion, the reasoning in such opinion is applicable to the question here presented. The county judge had authority to set the delinquency matter for hearing and likewise he had the authority to order the child held in custody. SDC 43.0309 provides as follows:

"No child within the provisions of this chapter, under fifteen years of age, shall under any circumstances be incarcerated in any common jail or lockup, and no court or magistrate shall commit a child under fifteen years of age to a jail or police station, but if such child is unable to give bail it may be committed to the care of the sheriff, police officer, or probation officer, who shall keep such child in some suitable place provided by the city or county outside of the enclosure of any jail or police station; and in case such child be fifteen years of age or more, it shall be discretionary with the Court to order or commit such child to the care of the sheriff, police officer, or probation officer, who shall keep such child outside of the enclosure of any jail or lockup if the Court so orders."

(The amendment to this section shown in Chapter 213 of the Session Laws of 1961 makes it mandatory for counties over 30,000 population to make arrangements by contract or otherwise for the care and detention of children, and makes such duty discretionary in Moody County because of its population.)

The fact that Moody County has not exercised such discretionary power to provide by contract for care and safekeeping of juveniles is immaterial to the authority of the court as exercised. In the factual situation given the Court had the authority to require the girl be kept in a suitable place outside a common jail or lockup. SDC 13.4609 and SDC 13.4621 provide that females should be kept segregated from males when under confinement. Whenever possible, female children should be in the custody and care of an older woman. Certainly the statute does not require that the Court order such confinement to be made within the confines of the courthouse. The facts show that Moody County had no separate quarters for females, prisoners, or minors; the only facilities for females being at the city jail. The judge ordered the minor female to be placed in detention in a place segregated from the common jail or lockup and segregated from male prisoners. He placed her in the custody of a woman, a police matron. It is true that this place of confinement was in facilities under the control of the City of Flandreau.

From the standpoint of the city, certainly it had more than a casual interest in the matter, as such was a juvenile proceeding held by the County Court. From the standpoint of the police matron she was acting at the direction of the County Court in furnishing custody and control of the alleged delinquent juvenile pending the disposition of the delinquency hearing. See SDC 13.4602, as amended by Chapter 57, Session Laws of 1963.

The expenses of such custody and confinement as incurred by the matron are properly payable by the County of Moody from the funds budgeted for the operation of the County Court.