STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

March 18, 1969

Dr. Richard D. Gibb
Commissioner of Higher Education
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-28

State Government-sale or lease of real property on campus of State operated college or university

Dear Dr. Gibb:

On behalf of the Board of Regents, you have requested my official opinion to answer these questions:

"1. May the Board of Regents sell or lease land obtained by purchase which forms a part of the campus of one of the educational institutions under its control?

"2. May the Legislature, if it so desires, sell or lease such land?

"3. May the Legislature, assuming it has the power to sell or lease such land, delegate the power to sell or lease the same to the Board of Regents?"

QUESTION NO. 1

In the absence of legislative authority, the Board of Regents has no authority to sell land on the campuses at any state educational institution. 1941-42 AGR 189, and 1957-58 AGR 124. In the absence of such legislation, such Board has no authority to lease such land. See 1953-54 AGR 339. SDC 1960 Supp. 55.0207, which authorizes conveyance or grant of easements of state lands is of no help, inasmuch as it provides for the sale or grant only in cases where other laws grant such authority.

Question No.1 must be answered NO.

QUESTION NO. 2

Part of the genius of our system of government is the division of government into three separate and coordinate branches of government, Legislative, Executive and Judicial.

All scholars and judicial precedence relative to the property, real, personal or mixed, of the state agree that the management, purchase or sale of such property is lodged exclusively in the legislative branch of government.

Question No.2 must be answered YES.

QUESTION NO.3

The Legislature, having the exclusive authority to sell state-owned property, may, if it so desires and under such terms and conditions 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.

Subject to the conditions expressed in the last paragraph, Question No. 3 is answered YES.

Respectfully submitted,

Gordon Mydland
Attorney General