February 1, 1983
Mr. Robert R. Slocum
Walworth County State's Attorney
Box 575
Mobridge, South Dakota 57601
Opinion No. 83-06
Power of county to contribute to city building project
Dear Mr. Slocum:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
The Walworth County Development Corporation proposes that the City of Mobridge should bid on a contract to be awarded by the Federal Aviation Administration to furnish a facility to be used as a Flight Service Center by the FAA on a 20 year lease on a $1.00 per year rental. The facility will cost approximately $700,000 to erect, and will employ about 35 people with an annual payroll of around $1,300,000.
The promoters propose that Walworth County should grant $300,000 by use of unobligated general funds and revenue sharing monies, and that the City of Mobridge would raise the balance by means of a 1 percent sales tax over the next three years (bid letting is to be in November, 1983, and occupancy of facility in December, 1986).
Project guidelines indicate that the lessor shall furnish and operate all building systems and that the FAA actually would be on a one-year lease, renewable for a twenty-year period. The promoters have been assured that the City may eliminate the first requirement by its bid, excluding operational services. Likewise, they are assured that the FAA would 'not likely' lease and then pull out before the twenty-year period because the agency would have about $1.5 million invested in equipment installed.
Based on the above facts, you have asked the following questions:
QUESTIONS:
1. May Walworth County make contribution to the City of Mobridge in the amount of $300,000 for the construction of an FAA service facility, in the form of cash and partly in kind services, by use of unobligated general fund money, assuming that there is that amount of excess cash on hand or that there will be such amounts over a period of three years?
2. Same question, addressed to permissible use of federal revenue sharing funds?
3. If the county and the city were to exercise joint governmental powers under SDCL 1-24-3 for the construction of an office building or regional jail to be used by county and city government, might a portion of the building so erected be made available to the FAA on the $1.00 per year lease as proposed above?
IN RE QUESTION NO. 1:
The threshhold question to be answered is whether the county has the authority to participate in such a project. If no such authority exists, then what method is employed to finance the project becomes irrelevant. Such is the case with your situation.
A county's power to construct buildings is delineated in SDCL § § 7-25-1 and 7-25-3 which are set forth below:
7-25-1: The board of county commissioners of any county and the county commissioners of any organized county to which any unorganized county is attached may in its discretion provide for an annual tax levy of not to exceed one and one-half mills on the dollar in addition to all other tax levies, the proceeds whereof may be used or paid into a fund for any of the purposes of acquiring a site, constructing, renovating, improving, remodeling, altering, adding to, repairing, erecting or maintaining a courthouse, office or jail building or may be paid into a fund for the purpose of constructing a courthouse, office or jail building. In addition, one mill of the one and one-half mill annual levy may be used or paid into a fund for any of the purposes of acquiring a site, constructing, renovating, improving, remodeling, altering, adding to, repairing, erecting or maintaining county exhibition buildings, 4-H and extension buildings, grandstands and bleachers, highway maintenance buildings, and public libraries; and, may cooperate in a joint undertaking for any of the foregoing purposes with any other county, municipality, or school district. (Emphasis added.)
7-25-3: The board of county commissioners shall have authority to provide for the erection, renovation, improvement, remodeling, alteration, addition to and repairing of courthouses, jails, memorial buildings, which may contain an auditorium, and other necessary buildings within and for the county and to make contracts on behalf of the county for such purposes; but no expenditure for these purposes, greater than can be paid for out of the annual revenue of the county for the current year, including for courthouse, office and jail buildings the revenue from the special levy provided by § 7-25-1, together with the amount of any debt service fund theretofore provided for such purpose, shall be made unless the question of such expenditure shall have first been submitted to a vote of the qualified voters of such county and shall have been approved by a majority of the votes so cast; and the board shall determine the amount and rate of taxes to be submitted to a vote for such purpose. (Emphasis added.)
Clearly, a building constructed to house a federal agency is not such a building as is contemplated by the above statutes. The county then is without power to fund such a facility.
IN RE QUESTION NO. 2:
The analysis set forth above also applies to this question. Therefore, the answer to this question is also NO.
IN RE QUESTION NO. 3:
Pursuant to SDCL 7-8-20(7) the board of county commissioners has the power '[t]o superintend the fiscal concerns of the county and secure their management in the best possible manner.' That provision as well as other powers enumerated in SDCL 7-8-20 surely give a county board the authority to rent vacant county property. However, that is not to say that the vacant property can be created solely for the benefit of a non-county organization.
A county's power to rent out facilities cannot be used as a subterfuge to circumvent the restrictions on a county's power to erect buildings contained in SDCL § § 7-25-1 and 7-25-3. The answer to Question No. 3 then is NO. To the extent this opinion is inconsistent with Report of Attorney General 74- 13, that opinion is overruled.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
