STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 5, 1969

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

OFFICIAL OPINION NO. 69-70

Proceeds from sale of municipal real estate may be used to acquire land for a new airport or to construct a municipal airport. SDCL 1967 9-27-28 (et al)

Dear Mr. Hanson:

You have requested my official opinion based upon this factual situation:

"Municipality X, in pursuance to statutes, sold certain municipal property for use on the Interstate Highway System. The proceeds of such sale have been collected by the municipality."

The question submitted in connection with such factual situation is as follows:

"Does SDCL 1967 Sec. 9-27-28 prohibit the governing body of such municipality from using all or a portion of such proceeds for the purchase of land for a new airport and construction on such airport?"

SDCL 1967, Sec. 9-27-28 provides as follows:

"All the moneys accruing from the sale of property under sections 9-27-17 to 9-27-27, inclusive, shall be paid into the treasury and credited to the general fund.

"The governing body may use such money or any part thereof for the purpose of constructing or erecting any necessary municipal buildings."

That municipal corporations have the power and authority to acquire, establish, construct and maintain airports cannot be denied. See SDCL 1967, Sections 9-12-14 and 50-7-2. The authority to levy a specific tax for airport purposes is provided by SDCL 1967 50-7-9. This levy is within the general limitations of levies as provided in SDCL 1967 10-12-32. 1949-50 AGR 249. Such municipal airport is either operated from tax moneys deposited in either a special distinct airport fund or the general fund. When the general fund is used, then allocations for airport purposes must be made in the annual budget. 1967-68 AGR 322. All municipalities are authorized to transfer surplus funds at the end of a fiscal year. (SDCL 1967 9-21-26) This office has issued numerous opinions upon such transfers. Such transfer of surplus funds may be from the general fund to a specific fund, such as the airport fund.

The provisions of SDCL 1967 Sec. 9-27-28, in my opinion, directs that moneys received by the sale of municipal real estate shall be placed in the general fund, or in addition to such a deposit-and not by way of limitation-it may be used to construct or erect any necessary municipal buildings, Such additional use-authorization, however, is not exclusive, but is in addition to a deposit in the general fund.

As previously indicated, under proper budgetary procedures, the general fund may be utilized for airport purposes, or surpluses therein may be transferred to the specific airport fund.

It is my opinion that SDCL 1967 Sec. 9-27-28 does not prohibit the use of the proceeds from the sale of municipal real estate for airport purposes.

Your specific question is answered NO.

Respectfully submitted,

Gordon Mydland
Attorney General