STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 26, 1974

Mr. Herschel V. Anderson
Director
South Dakota State Library
322 South Fort
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 74-36

Disposition of moneys collected by library Board of Trustees

Dear Mr. Anderson:

You have requested an official opinion on the following question:

In light of the amendments in 1974 to SDCL 14-4-5, and in light of the provisions in SDCL 14-4-6,14-4-7, and 14-4-11, can a City Commission require a Library Board of Trustees to utilize money, received in gifts that have been designated for specific purposes, for regular operating expenses by reducing the library's annual budget by that amount and in effect nullifying any gift to the library?

SDCL 14-4-5 as amended in 1974 now reads:

On or before August first of each year such trustees shall make a careful estimate of the necessary expense for maintenance of such library for the ensuing year and certify the same to the governing body of the municipality, which governing body shall include such expenses as they deem suitable in the regular tax levy of each such municipality for the ensuing year, and the same shall be extended and collected as are other taxes and the proceeds thereof paid to the treasurer or finance officer of the municipality, provided, however, that the same shall be part of the levy authorized by § 14-4-7 and subject to limitations therein set forth.

The insertion, by amendment, of the words "as they deem suitable" clearly has the effect of placing the final determination of the amount to be levied for the library's operating expenses within the discretion of the governing body of the municipality. This was clearly the manifest intention of the Legislature in selecting these particular words.

SDCL 14-4-6, however, provides that it shall be the duty of the treasurer of the municipality to keep all funds derived from such authority by § 14-4-5 in a separate fund. Therefore, it is also clear that maintenance funds for a municipal library were intended by the Legislature to be kept as a separate and distinct account and not co-mingled with other moneys either as a municipality or the library. I would further call your attention to the 1959-1960 AGR, p. 222, to an opinion dated September 28, 1959. In that opinion it was stated that moneys derived from rental books, fines, memorial gifts, donations and rents which have been placed in the special fund by the board of trustees of the library, need not be turned over to the city treasurer. The opinion further stated that the law does not contemplate that moneys collected by the board are required to be turned over to the treasurer of the municipality but may be kept in an account of the board and used by the board generally for the use and benefit of the library under its control. That decision was made under a statute very similar to SDCL 14-4-11 which provides in part, that the board of trustees" ... may accept gifts of books, money, or property for the use and benefit of such library."

It thus becomes abundantly clear, that the governing body of the municipality has no authority to require the board of trustees of a municipal library to turn over to that governing body funds received in form of donations designated for specific purposes. While the city may reduce the amount requested for operating expenses by the board of trustees, they have no authority to require the use of donations to make up the deficit.

Respectfully submitted,

Kermit A. Sande
Attorney General

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