STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 30, 1970

Roger L. Wollman
States Attorney, Brown County
Aberdeen, South Dakota 57401

OFFICIAL OPINION NO. 70-35

Funds collected by taxation in pursuance to Ch. 243 and 244 Laws of 1970 may not be expended to support a "Meals on Wheels" or "Homemaker's" program sponsored by a nonprofit corporation

Dear Mr. Wollman:

You have requested an opinion from this office in regard to the proper usages of funds raised by municipalities and counties in pursuance to Chapters 243 and 244 of the Session Laws of 1970.

You advise that in the Aberdeen area is a certain nonprofit corporation which provides a "meals on wheels" program, which provides a well balanced hot lunch to disabled, incapacitated or needy elderly, either at cost or free, and also a program designated as a "Homemaker Service," which provides light housekeeping assistance to the elderly who because of age or disability cannot perform such services for themselves.

Your question is whether or not funds derived from the tax levy authorized under either Chapter 243 (S.B.41) or Chapter 244 (H.B. 855) of the Session Laws of 1970 may be used to assist such nonprofit corporation to participate in the described "Meals on Wheels" or "Homemaker's Service."

A review of Chapter 243 and 244, Laws of 1970, make it clear that whether any county or municipality will participate in such programs authorized and levy a tax up to one-tenth of a mill on each dollar of taxable property, within the county or city, rests in the discretion of the governing body. Each of the acts provide substantially the same use of the funds so collected by taxation when such governmental entity embarks on such program. Such use is described as follows:

Such governing body shall have the power, by resolution, to make expenditures from such fund as it may from time to time determine, provided however, that such expenditures shall be made for the promotion and development of recreational, educational, and other activities of the elderly, including motivation of the use of the talents of the elderly. Such governing body may make payment of such expenditures to nonprofit corporations or associations engaged in aiding such activities.

The described programs of the nonprofit corporations certainly cannot be considered by any stretch of the imagination to be involved in the promotion and development of recreational or educational activities of the elderly. Neither can such programs be considered as in any way to be for the purposes of motivation of the use of the talents of the elderly. The only way such public funds could be expended for such purposes outlined would be to consider such as "other activities of the elderly."

I do not feel that I am unreasonable in saying that the main purpose of the "Meals on Wheels," or the "Homemaker's Service," is to assist the INDIGENT ELDERLY. There can be no question that while some of the elderly persons of this state may be indigent, we have elderly persons who cannot be classified as indigent, but some may indeed be classified as wealthy.

It is most difficult to expand the term "other activities of the elderly," to include the keeping of house by younger persons for the elderly persons. Other than the mechanical action of the elderly in eating food, the furnishing of food, or a hot balanced meal to an elderly person is not an "activity of the elderly."

The decision of what programs and the amount to expend upon any such program from such public funds is, as the statutes state, left to the sound discretion of the governing body of the municipality or county, which have decided to engage in such program. It is my suggestion that laudable as the described programs may be, the aim of such programs is not within the purview of the purposes for which the Legislature authorized the expenditures of public funds and the public funds collected in pursuance to Chapter 243 and 244 of the Laws of 1970 should not be expended for such described programs.

Respectfully submitted,

Gordon Mydland
Attorney General