STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 1966

Robert E. Lundwall
State’s Attorney, Walworth County
Mobridge, South Dakota 57601

OFFICIAL OPINION NO. 67-68 pg. 45

Minors. Expenses of hearing Petition on delinquency or contributing to delinquency of minors must be borne by county where action is held. No reimbursement from another county.

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

"In May 1966 a petition was filed by myself in the Juvenile Court of Perkins County, South Dakota, charging dependency and neglect of the children of "X" and another like petition was filed regarding the children of "Y". For several years both "X" and "Y" had been residents of Walworth County for welfare purposes, and in Summer of 1965 had moved to McLaughlin, Corson County, South Dakota, they then moved to North Dakota for a short time, returned to McIntosh, Corson County, for a few weeks and then moved to Perkins County. At all times these parents were recipients of county assistance from Walworth County. The dependency and neglect hearings were held in Perkins County, and the State's Attorney of such County did subpoena witnesses and incurred expenses of approximately two hundred dollars in the prosecution of such matter. All of such expenses were paid by Perkins County."

In view of this factual situation you have asked the following questions:

"1. Which of the two counties—Walworth or Perkins County— should bear the expense of such proceedings?

"2. Do the Walworth County Commissioners have authority to reimburse Perkins County for the expense of such proceedings?

If the action described in the above statement of fact was an action in which the parents of the described children were charged with contributing to the delinquency of minor children, such action is criminal in nature and the laws governing criminal prosecution in general apply except as they are modified by the provisions of SDC 43.04, and acts amendatory thereof. State v. Howell, 77 SD 518, 95 NW 2d 36. It is so elementary, that a citation is unnecessary, that the county in which a criminal action is tried must pay the costs of such prosecution of the criminal case. This applies no matter in which of the various courts of our state such criminal action may be prosecuted.

If, on the other hand, the action which was commenced was in fact an action to declare such children delinquent, neglected or dependent children, the result is still the same.

This office has on many occasions held that the venue of an action to declare a minor child to be delinquent may be had in either the county where the alleged delinquent resides or the county where the acts of delinquency occurred, irrespective of his actual residence. See 1918 AGR 195, 1937-1938 AGR 555, 1939-1940 AGR 535, 1955-1956 AGR 244 and 1963-1964 AGR 89.

My predecessor in office in an opinion reported in 1949-1950 AGR 376 held that when proceedings are commenced in county court to declare a minor child delinquent that the expense incurred in serving the process and the expense of witnesses subpoenaed by the courts are properly chargeable to the proper budget appropriation for the county court or for witness fees of the county in which such action is prosecuted.

The answer to Question No. 1 is that Perkins County, the county where such action was prosecuted, must bear the expenses of such proceedings. In answer to Question No. 2, in view of the irrefutable proposition that county commissioners cannot expend public funds from the county treasury unless such an expenditure is budgeted and authorized by law, it is my conclusion that the County Commissioners of Walworth County have no authority to reimburse Perkins County for the expenses of such proceedings.