STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
December 15, 1970
Morris G. Hallock, Director
South Dakota Department of Highways
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 70-51
Reservation of Estate for Term of Years for Highway Department Sign Shop
Dear Mr. Hallock:
You have requested an official opinion of this office in reference to the following question:
Can the State Highway Commission spend public funds for rent of the sign shop in light of the wording of Section 4 of House Bill 845?
The factual situation is as follows:
Ch. 165, Laws of 1970, (H.B. 845) authorizes the Highway Commission to sell the present State District Highway Shop in Aberdeen to Brown County. The price set out in House Bill 845 is $135,000 plus 6% interest. Section 4 of this bill states: "That the Department of Highways shall retain the right to occupancy and right to ingress and egress to the sign shop located on the above premises for a period not to exceed five years."
The Highway Commission went on record at its March meeting in agreeing to pay Brown County $200 per month rent for this shop. The Commission feels a sign shop has been conveyed by contract for deed (when same is executed upon determination of this question) and that it belongs to Brown County and that they can pay rent for it.
Sections 3 and 5 of this statute are also pertinent to this question. The land was appraised at $135,000 by the Legislature in accordance with the provisions of SDCL 31-2-26. Section 5 of Ch.165, Laws of 1970 provides:
That Brown County will pay $135,000 in five equal payments of $27, 000 plus six per cent interest per annum on the unpaid balance, beginning on July 2, 1970, to the Department of Highways, said payments to be deposited in the Highway Fund.
You have indicated several statutes and laws which you believe pertain to this situation. It is with regret that I must conclude that none of the constitutional provisions or statutes cited are applicable to the question you have presented. This must follow because the Legislature, within its constitutional prerogrative, has determined that its agent-the State Highway Commission-will sell to Brown County the described real property for $135,000, payable in five equal installments, beginning July 2, 1970, together with, interest thereon at 6% per annum. During the five year term authorized for payment for such property to be made, the Legislature, specifically reserved unto its agent-the State Highway Commission-the right of occupancy and right of ingress and egress to the sign shop building located upon such described premises.
Brown County, of course, need not enter into an agreement with the State of South Dakota for the purchase of such real estate described. However, if it does, for the first five years of such agreement, the owner of such property, selling it to the county, acting by its constitutionally authorized agent-the Legislature-has directed that it will occupy and use the sign shop building on the premises, exclusively.
The Highway Commission, has in its resolutions or actions of March, 1970 arrogated upon itself the powers and authorities of the Legislature. It has acted directly in a manner contrary to that great branch of government (which in itself is a branch of government, and not a mere department of the Executive Branch of Government, as is the Highway Department) which has exclusive control over all state property, and has the exclusive right to determine the proper method of disposing of state property. During the first five years, if Brown County desires to purchase such land, and is purchasing such land, the supreme authority has reserved upon itself the occupancy and control of such highway sign shop building.
The State Highway Commission has no authority to pay rent, real or imagined, on such highway sign shop building. Its action is in direct repugnancy to the will of the Legislature. Any such attempt on the part of the Highway Commission to pay such rent, is an attempt to exercise legislative authority by an inferior branch of the executive branch of government, and is an unconstitutional, illegal and void act.
Your specific question must be answered NO.
Respectfully submitted,
Gordon Mydland
Attorney General
