STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 15, 1969

L. V. Hanson
Director of Aeronautics
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-71

Aeronautics: Relocation of county airport. Use of condemnation award funds, and funds derived from sale of old county airport. Approval of electorate for such relocation

Dear Mr. Hanson:

You have requested my official opinion relative to these facts:

"County X has maintained a county airport for many years. With the construction of the Interstate Highway System in our state, a portion of such airport was condemned for highway purposes. The moneys derived from such condemnation proceedings have been received by the county.

"Because of the loss of land from such highway location, and other conditions that exist, it has been determined that rather than attempt to obtain land for the present airport, it would be preferable to sell the remaining portion of such county airport and relocate the county airport in a more suitable location."

Based upon this factual situation, you have submitted these questions:

"1. Can County X use the moneys derived from the condemnation of a portion of the present airport for the purpose of relocating, constructing and equipping a 'new' county airport?

"2. If the remainder of the present county airport is sold, can the moneys derived from such sales be used for the purpose of relocating, constructing and equipping a new county airport?

"3. Assuming sufficient moneys are available, can such relocation, construction and equipping of such new county airport be done without approval of the electorate?"

Inasmuch as the statutes are silent as to the use of moneys received by a county from a condemnation award, it is my opinion that such moneys should be handled in the same manner as moneys received from the sale of county property. The pertinent statute is SDCL 1967, 7-29-14 which provides:

"All money accruing from such sales of property under Sections 7-29-2 to 7-29-12, inclusive, shall be paid into the county treasury and credited to the county general fund.

"The board of county commissioners may in its discretion use such money or such part thereof as shall be necessary for the erection of necessary county buildings, including a jail, if such funds shall in the judgment of the board be sufficient for that purpose."

You will notice this statute is comparable to SDCL 1967, 9-27-28, applying to Municipal Corporations, which was the subject matter of my opinion directed to you on August 5, 1969. Much of what I said in that opinion relative to the powers of municipal corporations applies to counties. Thus, a county may acquire, establish, construct, equip, maintain and operate an airport (SDCL 1967 50-7-2). The county may raise money by taxation to maintain an airport (SDCL 1967 50-7-9). It is my opinion that the applicable statute, like the statute affecting municipalities, provides such moneys be placed into the general fund of the county. The specific direction that such may be used for erection of county buildings, however, is not exclusive, but is a grant of authority to use such moneys in addition to the general usage of moneys from the county general fund.

As was pointed out in an opinion reported in 1967-68 AGR 322, the county commissioners are in charge of the county airport, and all moneys derived by taxation or otherwise should be put into the general fund, and budgetary allocations for airport purposes made on the general fund to maintain the airport.

It is my opinion that Questions 1 and 2 are answered YES. Such funds derived from the condemnation and from the sale of the existing airports may be used for relocation, construction and equipment of a new county airport.

The final question submitted asks whether such funds may be used for such purposes without a submission of such question to the electorate of the county.

SDCL 1967 50-7-6 authorizes the board of county commissioners to appropriate money or levy a tax for the purpose of paying the purchase price, or condemnation award, to obtain real property for an airport. SDCL 1967 50-7-7 provides that the question of establishing a county airport shall be submitted to the electorate. However, this statute in part uses this language:

"If the question of establishing a county airport shall not previously have been approved by a majority vote of the voters at an election at which such question was submitted, then any county desiring to purchase land for an airport shall first take an option on such grounds . . . and in the next published report of their proceedings shall state their intention to purchase land for such purpose, stating the maximum amount which might be required to purchase suitable land. If within sixty days from such publication a protest signed by fifteen percent of the voters of the county voting for Governor at the last general election be filed with such county commissioners, then no such purchase shall be made until the question shall have been submitted to a vote of the people and sixty-five percent of those voting shall be in favor thereof. . . ."

As County X is operating an airport, it must be presumed that the electorate has approved the establishment, construction and maintenance of such airport. This condition of SDCL 1967, 50-7-7 may have been complied with insofar as the relocation is concerned. However, county commissioners must publish notice of their proceedings, so notwithstanding this statute, public notice must be given that the county commissioners intended to relocate the county airport. There is no legal manner of proceeding that I can see whereby the county could relocate and build another airport without giving the public notice of such action.

It is my suggestion that as the published minutes of the county commissioners must show its intention to relocate the county airport, that in addition, such notice set forth the maximum amount of money to be expended on such project.

If this suggestion is followed and no protest is filed within sixty days of such published notice, no one can question the legality of such location. However, if such protest be filed, the commissioners should submit the question of such relocation to the electorate for its approval. While I can appreciate that it can be logically argued that the prior approval of a county airport authorizes the relocation of such airport without any further approval of the electorate, it is my firm conviction that questions involving fiscal policies should always be submitted to the electorate when there is a question as to the legality of such expenditure without approval of the people who must furnish such moneys by taxation. The adoption of such a policy will lead to a more orderly local government. The county commissioners, in theory, are to act for the benefit of the county electorate. By submitting these "close" questions involving public funds, the county commissioners are but putting the theory of county government into practice. Of course, if the airport and its relocation must be financed, in whole or in part, by the issuance of bonds, no bonds can be legally issued without the consent of the electorate.

I am hopeful this answers Question No. 3.

Respectfully submitted,

Gordon Mydland
Attorney General