STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 23, 1966

Ernest L. Johnson
Secretary of Agriculture
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 67-68 pg. 51

Statutes. Non-Resident cooperative associations entitled to exemption under provisions of SDC 1960 Supp. 4.2402 (3) as amended by Chapter 9, Session Laws of 1963.

You have requested an opinion of this office for an answer to the following question:

"Does the exemption contained in Paragraph (3) section 4.2402 exempt out-of-state cooperatives doing business within the State of South Dakota from the bond requirements of the present

SDC 1960 Supp. 4.2402 as amended by Chapter 9, Session Laws of 1963 reads as follows:

"Any person who shall buy or sell, contract to buy or sell, or handle on account of or as agents for another, and any person who shall similarly engage in the business of assembling and trucking for such purposes, any eggs, poultry, poultry products or dairy products in wholesale lots, for the purpose of resale, with or without an established place of business, shall, for the purpose of this chapter be deemed a dealer at wholesale. Provided, however, that the following shall not be deemed a dealer at wholesale within the meaning of this chapter;

" (3) Cooperative Associations having not more than forty percent of non-member patrons."

Section 11.1150 of Chapter 23, Session Laws of 1965 reads as follows:

"Foreign cooperative authority. Upon issuance of the secretary of state's certificate of authority a foreign cooperative is entitled to all rights, exemptions and privileges of a cooperative organized for the same purposes under the laws of this state."

Section 11.1156 of Chapter 23, Session Laws of 1965 states in part:

"(2) No foreign cooperative admitted to do business in this state before July 1, 1965, is subject to this Act until after June 30, 1967 but any such cooperative may elect to become subject to the provisions hereof at any time thereafter by making application to the secretary of state for issuance of an amended certificate of authority to that effect;

Therefore, a foreign cooperative admitted to do business in the state prior to July 1, 1965 would not be entitled to the exemption contained in SDC 1960 Supp. 4.2402 (3) until after June 30, 1967 unless and until such foreign cooperative has elected to become subject to the provisions of Chapter 23, Session Laws of 1965, in accordance with the provisions of Section 11.1156 thereof.

In the light of the statutes quoted above, it is my opinion that the answer to your specific question must be and is a qualified "NO".