June 14, 1982

Mr. Jerry Scott 
Chairperson 
Mitchell Public Library 
Board of Trustees 
221 North Duff 
Mitchell, South Dakota 57301

Official Opinion No. 82-33

Disposition of Funds Generated From Fines

Dear Chairperson Scott:

You have requested an official opinion from this office in regard to the  following factual situation:

FACTS: 

The City Council of Mitchell, South Dakota, presently requires the Mitchell Public Library to turn over all fines and assessments made for lost materials to the city's general fund.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Is the Mitchell Public Library required to deposit such funds into the city's general fund? 

2.  If the answer to Question No. 1 is no, and the Mitchell Public Library may retain these funds, how is this accomplished?

IN RE QUESTION NO. 1:

In 1976 the South Dakota Legislature undertook to completely rewrite the laws governing operation of public libraries within this state.  As part of this general rewrite all of the prior statutes were repealed.  See SDCL 14-2-1  through 14-2-26; Chapter 14-3; and Chapter 14-4.  Nevertheless, many of the prior statutes were retained virtually without change.  For example, SDCL 14-4-12 (repealed) was carried over in pertinent part into SDCL 14-2-40(2) and SDCL 14-2-41(4).  SDCL 14-4-12 (repealed) has, on three separate occasions, been the basis of answers to virtually the identical question you raise.  See Attorney General's Report 1929-30, page 218, 1951-52, page 87; and 1959-60, page 222.  It was the conclusion of my predecessors that the library board has the authority to establish regulations regarding imposition of fines and similar charges and in addition may retain and use those funds for library purposes in excess of the funds generated through tax levies.  I see no reason to depart from the view of my predecessors; accordingly, the answer to Question No. 1 is No.

IN RE QUESTION NO. 2:

In the 1951-52 Attorney General's Report, page 87, issued in response to a similar question and to which I referred above, the then-Attorney General indicated that the funds could be deposited in a checking account in a bank in the name of the public library board and that withdrawals could be made upon checks signed by the librarian.  I also call your attention to SDCL 14-2-42(7) which enumerates as one of the duties of the librarian to 'keep an  accurate account of the financial transactions of the public library.' Accordingly, it is my opinion that funds generated through fines and other assessments can be deposited in a bank in a checking account assigned to the public library and that checks may be drawn on this account by the librarian. All payments made from this account must be submitted to the library board for approval and the account would of course be subject to audit.

Respectfully submitted,

Mark V. Meierhenry
Attorney General