STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
April 27, 1972
Roland E. Grosshans
State's Attorney, Fall River County
505 1/2 N. River
Hot Springs, South Dakota 57747
OFFICIAL OPINION NO. 72-20
Authority of unorganized county highway board to purchase real estate.
Dear Mr. Grosshans:
You have asked for an official opinion on the following question:
Does an unincorporated county's highway board have the authority to purchase real estate and to erect a building upon it?
After having researched the applicable statutes, especially SDCL 31-11-16, I have come to the conclusion that the highway board of an unorganized county does not have the power to contract for the purchase and acquisition of real estate.
I quote specifically the statute setting up the power and duties of the unorganized county highway board:
A highway board, when acting in and for an unorganized county, shall have all the powers and charged with all the duties in regard to the construction, repair, and improvement of highways and bridges, which are conferred and imposed upon the county commissioners of organized counties. The laws of this state relating to the construction, repair, and improvement of highways and bridges, including the provisions with reference to state and federal aid, therefore, in organized counties shall be applicable to unorganized counties.
I have also searched prior Attorney General's opinions of this state for an opinion giving the county highway board such powers, and have found none.
The next statute to consider is SDCL 7-17-3.
The county commissioners of any organized county to which any unorganized county is attached shall have all of the jurisdiction, rights, powers, duties, and liabilities for the administration of the affairs of the unorganized county or counties which may be attached to said organized county as they may have in the organized county, excepting in cases where it is otherwise expressly provided by law.
The next applicable statute is SDCL 7-25-3.
The board of county commissioners shall have authority to provide for the erection, renovation, improvement, remodeling, alternation, addition to and repairing of courthouses, jails, memorial buildings, which may contain an auditorium, and other necessary buildings within and for the county and to make' contracts on behalf of the county for such purposes; but no expenditure for these purposes, greater than can be paid for out of the annual revenue of the county for the current year, including for courthouse, office and jail buildings, the revenue from the special levy provided by §7-25-1, together with the amount of any sinking fund therefore provided for such purpose, shall be made unless the question of such expenditure shall have first been submitted to a vote of the qualified electors of such county and shall have been approved by,,!, majority of the votes so cast, and the board shall determine the amount and rate of taxes to be submitted to a vote for such purpose.
One of my predecessors wrote in 1963-64 AGR 120 in an opinion directly in point, which states as follows:
It is therefore my opinion that the board of county commissioners of Hughes County is authorized to purchase a building to be utilized for highway storage purposes, provided the expenditure therefor could be paid out of the annual revenue of the county for the current year. If the building cannot be paid for out of such annual current revenue, the expenditure can only be authorized by submission of the question to a vote of the electors of the county.
The next applicable statute is SDCL 7-25-6.
The board of county commissioners when authorized to erect any county building or joint county and municipal building shall have power to acquire ground for a site by purchase or condemnation. The board shall also have the entire supervision of the construction of all county buildings and monuments.
You have also asked the question of whether or not it would be necessary for the acquisition of this type of property to have a public bidding on the matter. The 1963-64 AGR on page 146 states as follows:
I concur in the above cited opinions and would add that it may not always be feasible to advertise for bids because of the peculiar nature of real estate since no one piece of real estate is the same as another piece' and it would therefore be my opinion that in most instances it would be more prudent and perhaps more advisable to obtain an independent appraisal from two or more appraisers prior to the purchase of real property by a public corporation.
I concur wholeheartedly in the foregoing conclusion of my predecessor relevant to the acquisition by political subdivisions of real estate for specific purposes and would heartily recommend that there be at least two independent appraisers selected to appraise the property in question.
In conclusion, it is my opinion based on the foregoing statutes and Attorney General's opinions, that the proper procedure for an unincorporated county's highway board to follow would be to present the problem of the necessity of facilities for storage of highway board equipment and machinery to the County Board of Commissioners in the county to which it is attached for administrative purposes, who also sit as the unincorporated Board of Commissioners, and after proper resolution duly made and entered on the records of the Board of Unincorporated County Commissioners, then the real estate transaction be pursued in accordance with the statutes and authorities herein cited.
Respectfully submitted,
Gordon Mydland
Attorney General
