STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 8, 1975

Mr. Dave Vigen
Executive Director
Board of Charities and Corrections
217 East Dakota Avenue
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-130

Leasing of state land under supervision of the Board of Charities and Corrections to private firms or individuals

Dear Mr. Vigen:

You have requested an official opinion from this office as to whether or not the Board of Charities and Corrections has authority to lease state land under its supervision to private individuals or corporations. You have also requested that we consider whether or not the Board can make any leases of such state lands under their control to other state agencies. SDCL 1-15-10 provides:

The board shall have power to make contracts for service, the erection of buildings, the purchase and lease of lands, materials, and supplies needed, except such supplies as are under the supervision of the Bureau of Administration; and in carrying out such contracts shall have the power to expend money, exact and collect penalties, and to purchase, lease and sell property within the limitations of the state and national laws. All contracts for the erection and repair of buildings and the purchase of ordinary supplies exceeding in value five hundred dollars except coal needed by the institutions, shall be by means of publicly advertised competing bids and public letting. No member of the board shall be directly or indirectly pecuniarily interested in such contract.

In Official Opinion No. 69-28 the question was raised as to whether or not the Board of Regents had power to sell or lease lands under their control and whether the Legislature could delegate this power to sell or lease state lands to the Board of Regents. The opinion concluded that in the absence of legislative authority the Board had no power to sell or lease lands under its control. Numerous Attorney General's opinions were cited as reaching a similar conclusion. With respect to the issue of delegation of authority to the Board to sell such properties, the opinion states:

The Legislature, having the exclusive authority to sell state owned property, may, if it so desires and under such terms and conditions as it determines are proper, authorize a department in the Executive Branch of Government to actually consummate such sale of property. The Board of Regents is but a part of the Executive Branch of the Government of South Dakota.

As long as the Legislature designates the terms and conditions of either a general grant to sell any property, or a specific grant to sell or otherwise dispose of specifically described real property, the question of illegal delegation of legislative authority cannot arise.

In SDCL 1-15-10 there is obviously no mention of sale, lease or purchase of any specific parcel of land under the control of the Board of Charities and Corrections. SDCL 1-15-10 does, however, grant to the Board the general power to "lease ... " The 1973 Legislature specifically amended 1-15-10 to include this power to "lease." The primary rule of statutory construction is, of course, to give effect to the intent of the Legislature, Kalmbach v. City of Mobridge, 81 S.D. 158, 132 N.W. 2d 293 (1964). It appears to me that the only rational explanation of the 1973 legislative change to SDCL 1-15-10 is that the Legislature desired to confer a power to the Board of Charities and Corrections to "lease" state lands under their jurisdiction, control, and supervision.

In reviewing SDCL 1-15-10 one must bear in mind the principle of law which is well established in South Dakota that every presumption is in favor of the validity and propriety of legislative action and that no statute should be held unconstitutional unless its infringement of constitutional restrictions is so plain and palpable so as to admit no reasonable doubt. Schmitt v. Nord, 71 S.D. 575, 27 N. W. 2d 910, appeal dismissed 68 S.Ct. 1018, 334 U.S. 809, 92 L.Ed. 1741 (1947).

In view of the above arguments and authorities the only conclusion I can reach with respect to your question is that the Board of Charities and Corrections does have the authority to "lease" lands under its control as it deems to be in the best interest of the people of the State of South Dakota and within the "limitations of the state and national laws."

Respectfully submitted,

William Janklow
Attorney General

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