STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 7, 1969

Peter B. Grossmann, Director
State Public Welfare
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-84

Availability of appropriations

Dear Mr. Grossmann:

I have your request for an official opinion concerning court orders issued by courts of competent jurisdiction which grant either limited or full custody of dependent children to the State Department of Public Welfare or the Division of Child Welfare.

Your specific question is as follows:

"Does the Department have inherent authority to condition its acceptance of custody in such cases, as dictated by practical considerations, such as staffing and fiscal capabilities, or is it bound in all cases to accept custody without regard to whether it will be able to adequately provide functional services of child care and protection?"

From the nature of the question, I assume that it is understood that the question has no reference to the availability of an annual appropriation by the Legislature, but it covers a situation where the annual appropriation is inadequate because the number of custody cases is considerably more than anticipated.

Section 9 of Article XI of the State Constitution provides in part as follows: ". . . no indebtedness shall be incurred or money expended by the state, and no warrants shall be drawn upon the state treasury except in pursuance of an appropriation for the specific purpose for which it was first made "

Section 1 of Article XII of the State Constitution provides:

"No money shall be paid out of the treasury except upon appropriation by law and on warrant drawn by the proper officer."

SDCL 1967 4-8-3 provides:

"No officer, board or commission supported by state appropriation shall incur any expense in excess of the appropriation made for his or its maintenance and support by which a deficiency may be created in the funds appropriated for the maintenance of any department, board, institution, commission, or any other activity supported in whole or in part by state funds."

In our opinion, your department does not have authority to make a conditional acceptance of custody in any case. Nor are you bound to accept custody without regard to whether you will be able to adequately provide functional services of child care and protection until and unless your appropriations for the current fiscal year are sufficient to provide such adequate care and protection for the child until the end of such fiscal year. This would seem to require a budgeting of your annual appropriation on a first-come first-served basis. Otherwise, any conditional acceptance of custody might put you in a position where you were incurring an indebtedness or obligation on behalf of the state not covered by an appropriation. See 1951-52 AGR 282.

Respectfully submitted,

Gordon Mydland
Attorney General