STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

January 12, 1970

Representative Dean D. Mehlhaff
South Dakota House of Representatives
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-2

County Support to mental health centers does not include a $20,000 donation and in addition a mill tax levy for such purpose

Dear Representative Mehlhaff:

You have requested an official interpretation of SDCL 1967, §27-5-8, (and any allied statute) regarding funding of regional mental health centers. Specifically your question is as follows:

Is it legal for a county to levy $20,000 and in addition levy from the general fund for the support of a mental health center as defined in SDCL 1967, §27·5-1?

Much of the confusion arising from Ch. 27-5 of the South Dakota Compiled Laws of 1967 is removed if it is remembered that this chapter in such compilation resulted from the combination of separate enactments of the Legislature which dealt specifically with two different entities of our governmental system. Thu Chapter 186 of the Session Laws of 1966, which is the basis of Sections 1, 2, 3, 4, 5, 6, and 7 of said Chapter 27-5, created a State Commission on Mental Health and Mental Retardation, and defined the duties and powers of such commission. These particular enactments, it is apparent, are not concerned with and have no application to the problem of whether or not any particular county may levy taxes or donate moneys to a mental health center.

The authorization of county support for such mental health centers appeared in Chapter 38 of the Session Laws of 1963, which amended existing statutes. The legislative enactment consisted of but one section consisting of three separate paragraphs. In the 1967 compilation of the South Dakota Statutes, these three paragraphs were split into various sections and now appear in Sections 27-5-8 and 28-18-6 of such compilation. The Act as enacted by the Legislature (which has not been amended) reads as follows:

AMENDING LAW RELATING TO POWERS OF COUNTIES AND MUNICIPALITIES TO LEVY FOR PVBLIC MENTAL HEALTH CE TERS

AN ACT Entitled, An Act to amend section 12.0617-12 of the 1960 Supplement to the South Dakota Code of 1939, as last amended by Chapter 31 of the Session Laws of 1961, relating to the power of boards of county commissioners and governing bodies of municipalities to levy for and contribute to the support of public mental health centers and homes for the aged.

Be It Enacted by the Legislature of the State of South Dakota:

That SDC 1960 Supp. 12.0617-2 as last amended by Chapter 31 of the Session Laws of 1961 be, and the same is hereby, amended to read as follows:

POWERS OF BOARD: SUPPORT OF PUBLIC MENTAL HEALTH CENTERS: LEVY AUTHORIZED, SUPPORT OF HOMES FOR AGED: LIMITATION 0 APPROPRIATION.

The boards of county commissioners of the several counties and the governing bodies of municipalities of this state, may, in their discretion, contribute sums of money annually not to exceed twenty thousand dollars per annum to the support of public mental health centers or clinics approved by the State Department of Health, or, the boards of county commissioners of the several counties may levy a tax up to but not to exceed one mill on each dollar of taxable property within the county, which tax levy hereby authorized shall be in addition to all other county tax levies, all proceeds of which tax, if levied, shall be used for the sole purpose of support of public mental health centers or clinics approved by the State Department of Health.

The boards of county commissioners of the several counties and the governing bodies of municipalities of this state, may, in their discretion, contribute sums of money annually not to exceed twenty thou and dollars per annum to nonprofit self-sustaining corporations formed for the care and accommodation of aged persons under the provisions of SDC 1960 Supp. 27.1209.

For the purpose of carrying out the provisions of this section, such boards of county commissioners and such governing bodies of municipalities may appropriate out of the general fund of their respective counties or municipalities.

This office in prior opinions, 1963-64 AGR 212 and 1967-68 AGR 364 has ruled that once a mental health center receives the proper approval from the State Commission on Mental Health and Mental Retardation (see Section 6 of Chapter 186 of the Session Laws of 1966, which is SDCL 1967 S27-3-7, whereby all duties and functions of the Mental Health Section of the State Department of Health were transferred to and vested into such State Commission) the County Commissioners, within their discretion, may contribute any sum of money they wish, not exceeding $20,000 to support such mental health center. These rulings, of course, did not contemplate or answer your questions.

It is my opinion, after a consideration of the enactment as it was enacted, and prior to its fragmentation by the compilation of South Dakota statute, that the Legislature in said Chapter 38 of the Session Laws of 1963 has provided that the maximum amount of money that may be furnished to any approved public mental health center or clinic in any particular year is $20,000. It has also provided that such amount of money may be raised either by a tax levy, not exceeding one mill on each dollar of taxable property within the county, or by a direct appropriation out of its general fund. The Legislature has not authorized the donation of twenty thousand dollars to any such approved mental health center from the general funds, and in addition, the levy of such one mill tax, the proceeds of which are to be distributed to such mental health center.

The answer to your specific question must be NO.

Respectfully submitted,

Gordon Mydland
Attorney General