STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

February 20, 1969

Raymond H. Kintz
State's Attorney, Ziebach County
Dupree, South Dakota 57623

OFFICIAL OPINION NO. 69-18

Unused rooms in a county courthouse may not be leased to private persons for their own private business

Dear Mr. Kintz:

You have requested my official opinion in answer to this question:

"Can the Board of County Commissioners lease office space in the courthouse, which is not needed for immediate public use, to a private attorney as a law office for the private practice of law, in a manner other than at public auction, with required notice as set forth in SDC 12.2212?"

Before approaching the question you have submitted, it is my opinion that the County Commissioners have no authority to lease any space in a courthouse for the use of private individuals for their own private business.

My predecessors have inferentially ruled upon this question. In 1937-38 AGR 129 it was ruled that County Commissioners were without authority to lease a memorial assembly room in the newly constructed courthouse for veterans and other civic minded organizations. The reason for the rule was stated that there was no statutory authorization for the County Commissioners to engage in a business enterprise of such character. In 1951-52 AGR 5 it was held that the County Commissioners had no authority to rent a portion of the jail for private living quarters, notwithstanding such quarters were not used and had never been used as a portion of the jail. The basis of such opinion was the fact that county buildings, such as jails, can be used only for the purposes for which they were constructed, together with the lack of statutory authorization for such a lease.

In principle, the opinion of my predecessor reported in 1945-46 AGR 246 that a college dormitory could not be used to furnish housing for the general public, even when such dormitory was not being used for dormitory purposes, applies to this situation. It is a lease or use of public property for a purpose foreign to the erection and maintenance of such public property. The courthouse in any county seat town exists for the purpose of housing the county officials and providing chambers for a courtroom for court purposes. It does not exist for the County Commissioners to engage in the leasing of rooms to private individuals when, and if, certain portions of the courthouse are not immediately used or needed for county officials.

It is my opinion that there is no authority to rent any space in a courthouse to a private person for any private purpose. This being true, there seems little question to discuss whether such should be done with or without competitive bidding.

Respectfully submitted,

Gordon Mydland
Attorney General