STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
December 20, 1972
Andrew Aberle
States Attorney, Dewey County
Timber Lake, South Dakota 57656
OFFICIAL OPINION NO. 72-69
County commissioners must fund county library established by petition.
Dear Mr. Aberle:
You have asked for an official opinion on the following factual situation:
Dewey County established a county free library pursuant to SDCL 14-3-1 and operated such until the establishment of a regional library which was established pursuant to SDCL 14-2. The regional library is no longer operational and the county library board made an estimate of the necessary expenses for the ensuing year and certified the same to the county commissioners prior to August 1, 1972. The county commissioners refused to budget for the expenses requested by the county library board, and will not' levy a tax for the expenses requested.
In connection with this situation, you have asked the following question:
Is it within the discretion of the board of county commissioners to levy or refuse to levy for the expenses requested by the county library board?
This opinion is written to give answer only to the question raised by you and is based upon the factual situation you have described. It assumes that the county free library was never disestablished during the period the county was serviced by the regional library.
The answer to your question depends on the manner in which the library was established. SDCL Ch. 14-3, "County Libraries," provides three methods by which library services may be provided to county residents.
The first is the mandatory establishment of a free library by the county commissioners upon petition of 60 percent of the legal voters. SDCL 14-3-1.
The second method is discretionary. The county commissioners may take over the care and control of an existing free library. The terms and conditions are to be set by contract between the library board and the county commissioners. SDCL 14-3-2.
The third method is also discretionary. The county commissioners may contract with an existing library board for free service for residents of the county under such terms as may mutually be agreed upon between the county commissioners and the library board. SDCL 14-3-3.
When a library is established under option No.1, petition by residents, the statute provides that" ... the county commissioners shall levy a suitable tax to maintain the same." (Emphasis added) SDCL 14-3-1. In the other two cases, "The said board of county commissioners may levy a tax" to support the library. (Emphasis added) SDCL 14-3-16, 1972 Pocket Supplement.
The creation of a library is not just another governmental function. Libraries are storehouses of books and knowledge; they are laboratories for study and research, and they are places affording sane recreation. City of Fort Worth v. Burnett, 115 S.W. 2d 436, 440. Recognizing this, the Legislature, in 1917, permitted the establishment of county free libraries by the people themselves. SD 1917, Ch. 293.
There is a long line of Attorney General's opinions which establishes that county commissioners may not interpose themselves between the people and county free libraries established by the people. 1923-24 AGR 226 provides that mandamus may lie to compel the establishment of a library petitioned by the people. 1923-24 AGR 225 ruled that the creation of a library upon petition of the people was mandatory. 1933-34 AGR 199 rules that the county commissioners could not use county library funds for a school library. 1937-38 AGR 530 rules that the county commissioners were not authorized to appoint the librarian, And, 1931-32 AGR 479; 1939- 40 AGR 644 and 1959-60 AGR 177 have all ruled that it is the duty of the county commissioners to levy a tax, not to exceed the statutory limit, to support such a library established by the people.
I am aware of the fact that SDCL 14-3-16 which pertains to the levying of taxes for county libraries was changed in 1967. The statute previously read the" ... county commissioners shall levy a tax. . .. It now reads the " ... county commissioners may levy a tax .... " However, this statute must be construed to apply only to libraries established by options No.2 or 3 described above. SDCL 14-3-1 which authorizes the people to establish a library still reads: " .... the county commissioners shall levy a tax to maintain the same." (Emphasis added).
As the Dewey County free library was established by the people pursuant to the first method described (SDCL 14-3-1), it is therefore my opinion that the answer to your question is, NO, the county commissioners may not refuse to levy for library expenses. However, the tax levied must be "suitable." SDCL 14-3-1.
I can find no cases defining what constitutes a "suitable tax," however, the word "suitable" means that which is appropriate, fit, or proper. Dorsey v. Clements, 202 Ga. 820, 44 S.E. 2d 783, 786. Accordingly, it follows that, in this case, the county commissioners can review the budget submitted by the library board and remove unnecessary items. The commissioners cannot, however, reduce the library budget to a point where the library cannot effectively operate.
Respectfully submitted,
Gordon Mydland
Attorney General
