October 8, 1987

Mr. Steven J. Helmers
Attorney at Law
First Federal Plaza, 8th Floor
9th and St. Joe
P.O. Box 8250
Rapid City, SD 57709 

OFFICIAL OPINION NO. 87-33

School district payments to volunteer fire department  

Dear Mr. Helmers: 

At the request of the Douglas School District No. 51-1, you have requested my official opinion regarding the following matter. 

FACTS: 

In Box Elder there exists a volunteer fire department which operates and exists under the laws of the state of South Dakota.  To provide funding for the operation of the volunteer fire department, however, the department has requested the assistance of the Douglas School District.  The district, however, wishes to avoid making payments which would be unauthorized or unlawful under South Dakota law. 

Based upon the foregoing facts you have asked the following questions:  

QUESTIONS:

1.   Whether a school district may donate funds for purposes of supporting the operations of the volunteer fire department in its locality?

2.   If the answer to question 1 is no, may the district enter into a contract and provide payments to a volunteer fire department in consideration of educational/liaison services provided to the district by the volunteer fire department? 

IN RE QUESTION NO. 1:

SDCL Chapter 34-31 specifically authorizes county commissioners, and the governing bodies of townships or municipal corporations to provide for fire protection and the purchase of fire fighting equipment.  SDCL 34-31-3 provides that the Board of County Commissioners may levy a tax, not to exceed one mill, upon all the taxable property of the county to provide fire protection service. SDCL Chapter 34-31A provides for the creation of rural fire protection districts.  All of these arrangements may include volunteer fire department setups.  I find it particularly significant that while almost all subdivisions of government are included in the authorizing legislation, no mention is made of school districts.  It is an old and familiar rule that governmental entities may exercise only those powers specifically granted and then only in the manner provided.  This is often referred to as Dillon's Rule.  See Sioux Falls Employees v. Sioux Falls, 233 N.W.2d 306 (1975).  Since the Legislature has provided a taxing mechanism for funding these fire protection services and has determined not to include school districts, I am inclined to believe that the Legislature did not intend that taxes raised under the school levy be used for providing fire protection services.  Accordingly, my answer to Question No. 1 is no.  

IN RE QUESTION NO. 2: 

School boards have general charge, direction and management of the schools in a district.  They may levy taxes, borrow money, employ necessary personnel, lease property, carry insurance, purchase books and equipment, purchase rural property and erect necessary buildings to operate the schools.  SDCL 13-8-39.  The power to employ personnel is reinforced in SDCL 13-10-2.  In addition, the school board can enter into contracts and agreements with the state, its agencies and any other political subdivision for educational purposes and services.  SDCL 13-15-1.  Assuming the volunteer fire department to which you refer is part of a fire protection district under SDCL Ch. 34-31A, it is a body politic pursuant to SDCL 34-31A-16.  As a political subdivision the fire protection district could enter into a contract with the school district for educational purposes and services.  I would refer you to my answer to Question No. 1.

for the principle that it does not appear the Legislature has intended that tax monies collected under the school levies be used for fire protection services.  I cannot advise you to use the statute allowing for educational services contracts to be used to defeat what appears to be the Legislature's intention. 

My answer to Question No. 2 is that a school district may enter into a contract for educational services with a duly created fire protection district. 

Sincerely,

Roger A. Tellinghuisen
ATTORNEY GENERAL