STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 19, 1969

Bernard Linn, Commissioner
Department of School and Public Lands
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-52

Authority of Commissioner or School and Public Lands to approve an easement on school land sold on installment contract for deed

Dear Mr. Linn:

We have your letter of May 22, 1969 to which is attached a "Conveyance of Easement for Waterfowl Management Rights."

This indenture is between Herbert Anderson and Evelyn Anderson, his wife, and the Commissioner of School and Public Lands, as party of the first part, and the United States of America acting by and through the Secretary of Interior as his authorized representative, as party of the second part.

The consideration for the easement is $1,775.00, payment of which is to be paid to Herbert Anderson and Evelyn Anderson.

The instrument recites that Section 4 of the Migratory Bird Hunting Stamp Act of March 16, 1934, as amended by Section 3 of the Act of August 1, 1968 (72 Stats 486, 16 USC Sec. 718d(c) authorizes the Secretary of Interior to acquire small wet land or pothole areas suitable for use as waterfowl production areas. The easement is for a period of 99 years and covers the East Half of the Northwest Quarter of Section S, the West Half of Section 9 and the East Half of the Northeast Quarter of Section 18, all in Township 117 North, Range 73 West of the 5th P.M. in Potter County, South Dakota.

The land described was purchased from the State of South Dakota at your regular land sales held in Potter County on October 25, 1965 and October 23, 1967. Eleven contracts of sale were issued. The total unpaid balance of principal due on these contracts is $21,865.20 and added interest from January 1, 1969 to May 22, 1969 of $431.23.

You request our official opinion on four questions covering your legal authority, as distinguished from administrative advisability, to join in this easement. Your questions are answered in the order in which they are asked.

"1. Is there anything in the Enabling Act which prohibits me from executing this easement?"

The answer is NO. In this respect, see the Enabling Act as it appears in SDCL 1967 Section 11, page 189.

"2. Is there anything in the Constitution of the State which would prohibit the execution of this easement?"

NO. See the answer to Question 3 and 4, and Article VIII, Sec. 5 of the State Constitution.

"3. Is there any statute giving either blanket or specific authority to me to execute this easement?"

SDCL 1967 5-9-16 provides as follows:

"Commissioner's approval required for assignment or conveyance under installment contract.-Any assignment of any rights under such contract, or conveyance of any interest in the land therein described, shall be in no force or effect, unless or until such assignment or conveyance be first approved, in writing, by the Commissioner of School and Public Lands."

This easement is a conveyance of an interest in the land under the State installment contract, and it is our opinion that Section 5-9-16, as quoted in full above, authorizes you to approve the easement by an endorsement thereon to that effect, as distinguished from executing the same as a party thereto as provided for in the instrument.

"4. In the absence of any specific authority, does the general provision hold that powers not specifically granted are powers denied?"

Article VI, Sec. 14 of the South Dakota Constitution provides as follows:

"The powers and duties of the Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Commissioner of School and Public Lands and Attorney General shall be as prescribed by law."

This constitutional provision limits your authority, powers and duties to those matters prescribed by the Legislature by statutory enactment. If such powers and duties are not specifically granted, then the authority does not exist. Therefore, it is our opinion that powers not specifically granted are powers denied.

Respectfully submitted,

Gordon Mydland
Attorney General