STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 22, 1974

John A. Schaeffer
States Attorney, Moody County
Flandreau, South Dakota 57028

OFFICIAL OPINION NO. 74-13

County Commissioner may not build a building for the purpose of leasing to various United States Government agencies.

Dear Mr.:

You have requested an official opinion on the following factual situation:

The Board of County Commissioners of Moody County wants to erect an addition to the Moody County 4-H building. The only purpose in doing this is to lease the building to various governmental agencies including the A.S.C.S., Soil Conservation Service, Farmers Home Administration, and other federal agencies.

In connection with the above factual situation, you have asked the following question:

Can the County of Moody erect an addition to the Moody County 4-H building? The purpose of erecting the addition would be to lease the building to various Federal governmental agencies.

This office considered a similar question in Official Opinion No. 72-62. In that instance, the question was whether the Board of County Commissioners could rent out space in the courthouse to the Soil Conservation Service. That opinion stated that the county could rent space in the courthouse to the agency in light of SDCL 1-24 which gives authority to the counties to cooperate with other public agencies.

The question you asked is different, however, from that in Opinion No. 72-62. In that opinion, the space was available in an existing structure; in the present case, the county would have to build an entire new structure for the purpose of renting to the public agencies.

SDCL 1-24-2 states:

Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having such power or powers, privelege or authority, and jointly with any public agency of any other state Or of the United States to the extent that the laws of such other state or of the United States permit such joint exercise or enjoyment. Any agency of South Dakota state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileies, and authority confered by §§1-24-2 to 1-24-9, inclusive, upon a public agency.

The key word in the section is jointly. Webster's Seventh Collegiate Dictionary defines the word "joint" as follows:

1: united, combined

2: common to two or more: as

a(l) involving the united activity of two or more

(2) constituting an activity, operation, or organization in which elements of more than one armed service participate

(3) constituting an action or expression of two or more governments

b shared by or affecting two or more

3: united, joined, or sharing with another

The clear meaning of the word is that it takes more than one to act jointly.

The building of the 4-H building would not be a joint act of governmental agencies under that definition.

When the statutes SDCL 1-24-2 to 1-24-9 are considered together, it is apparent that the Legislature intended the undertaking to be by agreement of two or more governmental agencies. SDCL 1-24-4 and 1-24-5 set out the contents of the agreement and the provisions for the control of the agency and property, respectively.

Therefore, the answer to your question is, NO, that the County Commissioners of Moody County cannot build a 4-H building for the sole purpose of renting it to other governmental agencies.

However, if the proper procedures are used and the construction of the building is a joint effort, including joint funding, etc., between the various public agencies, I would say that the construction would be proper.

Respectfully submitted,

Kermit A. Sande
Attorney General