STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 23, 1969

M. D. Mitchell, D.V.M.
Executive Secretary and State Veterinarian
Livestock Sanitary Board
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-93

Chapter 40-15 SDCL 1967

Dear Mr. Mitchell:

You have submitted the following fact situation:

John Doe, calling himself a livestock auction and sales agency, and operating within the State of South Dakota, charges a commission for selling livestock. He does this by bringing buyers to the place of residence of the farmer or rancher who has cattle for sale. An auction sale is held upon the premises of the owner of the animals, and the person arranging the sale and providing the buyers is paid a commission for doing so.

Your specific question with reference to this is; whether or not "John Doe," as an organizer of this sale, because he provides the buyers, calls himself a livestock auction or sales agency, is required to be licensed under Chapter 40-15 of the SDCL 1967?

This office has ruled, in an opinion dated January 20, 1956, 1955-56 AGR 311, that a farmer selling his own cattle, and in some cases those bought particularly for the sale, as long as he does so on his premises, is not a livestock auction agency as provided under Ch. 40-15 SDCL 1967.

This office further held in 1947-48 AGR 303, a case where an owner of a livestock yard purchases from farmers livestock, and is paid a commission by the packers for whom he buys, is not required to be licensed as a livestock auction agency, because he was not selling for others and being paid by sellers as their agent, but rather was acting as an agent of the buyers. It is my opinion that the terms of the statute 40-15-1 SDCL 1967, which states:

Business constituting livestock auction agency-Exceptions.-Every person, including individuals, firms, associations, partnerships or corporations operating a place of business where livestock is bought and sold through public auction is a livestock auction agency, except any place or operation where future farmers or 4-H groups of fair associations or private fairs conduct sales of livestock, any place of operation conducted for a dispersal sale of the livestock of a farmer, dairyman, livestock breeder or feeder who is discontinuing said business and no other livestock is sold or offered for sale, and any place of operation where a breeder or an association of breeders of livestock assemble and offer for sale and sell under their own management any livestock

specifically excludes any place of operation where a breeder of livestock assembles and offers for sale under their own management any livestock and further requires that said livestock auction agency be operating a place of business; therefore, your question is answered in the NEGATIVE and the above described arranger of auction sales on the premises of the individual farmer is not required to be licensed under Ch. 40-15 SDCL 1967.

It is my opinion that in the fact situation above the auctioneer calling himself a livestock agency is in fact not an agency as set forth in the statute, but rather an agent of the owner of the cattle for the purpose of selling same and no other.

Respectfully submitted,

Gordon Mydland
Attorney General