STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 30, 1969

Charles A. Wolsky
State's Attorney, Clay County
Vermillion, South Dakota 57069

OFFICIAL OPINION NO. 69-88

Intercounty drainage districts. Repair and maintenance contracts may be financed by warrants or assessment certificates. SDCL 1967 46-20 and 46-21

Dear Mr. Wolsky:

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

"May the County Commissioners of Clay and Yankton Counties acting as the Clay County Ditch Board, issue warrants or assessment certificates in order to pay a contractor for maintaining and repairing the drainage ditches of such drainage district, when the moneys on hand from the annual assessment for maintenance and repair of such drainage districts is insufficient to pay the cost of such maintenance and repair?"

The factual situation upon which such question is based is as follows:

"The Clay Creek Ditch Drainage District is situated in Yankton and Clay Counties. Advertisement for bids to repair and maintain the drainage ditch were made, and a bid of approximately $44,000.00 was awarded for such repair and maintenance. The moneys collected from the assessment for such purpose amounts to some $34,000.00 and the maintenance and repair will be completed prior to the levy of such annual assessment for next year."

My answer to your question is YES if the contract requires the contractor to take his payor a part thereof, in assessment certificates or in warrants thereafter issued. As you may know, my predecessor in office in an opinion reported in 1930-32 AGR 210 arrived at the same conclusion.

In State v. Risty (1927) 51 SD 335, 213 NW 952, our Court pointed out that the Drainage District Boards have no power to go further or take any steps except as are expressly authorized by statute, or may be reasonably implied from the powers granted by the statute.

SDCL 1967 Secs. 46-20-37 and 46-21-11 authorize the use of assessment certificates or warrants for the original construction of such drainage districts. SDCL 1967 Sec. 46-21-21 authorizes the issuance of warrants in lieu of assessments for the construction of a drainage ditch. SDCL 1967 Sec. 46-21-24, etc. provide for the issuance of bonds to pay for the construction of such drainage ditch.

There is no question that the drainage district board has a duty to maintain and repair such drainage districts. SDCL 1967 46-20-43 incorporated the use of assessment certificates or warrants to finance such needed maintenance and repair.

Respectfully submitted,

Gordon Mydland
Attorney General