April 23, 1981
Mr. Myles J. DeVine
Marshall County State's Attorney
809 6th Street
Britton, South Dakota 57430
Official Opinion No. 81-14
Sale of Existing Attached Clinic to County Hospital
Dear Mr. DeVine:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
Approximately twenty years ago the Marshall County Board of Commissioners submitted the question of establishing and maintaining a county hospital and of issuing bonds for that purpose to the electors of this county pursuant to SDCL 34-8-4 and it passed. The county has owned and operated the hospital ever since. Several private individuals constructed and operate a clinic that is connected to the county hospital. They now wish to sell the clinic to the county.
Attorney General Opinion #74-15 interpreted 'medical facility' described in SDCL 34-8-1 to include a medical clinic, SDCL 34-8-4.1 authorizes any county operating a county hospital to erect additions thereto, and SDCL 34-8-4.2 provides that an election is not necessary to authorize the erection of such addition.
Based on the above facts, you have asked the following questions:
QUESTIONS:
1. Would the clinic in this case, since it is attached to the hospital, be considered an addition to the existing hospital, therefore not requiring an election?
2. Can erect and purchase for the purposes of this statute be read synonymously so that the county commissioners could by resolution purchase it?
3. Since the clinic is an existing structure already attached to the county hospital can the state bid laws be ignored?
If the answers to the above questions are all yes:
1. How should the purchase price be arrived at?
2. Can the purchase be made out of the 'Hospital Depreciation Fund' now in existence pursuant to SDCL 34-8-20 which had $113,464.12 in it as of March 1, 1981, or if not, can the county commissioners declare a surplus out of general funds for the purchase?
SDCL 2-14-11 reads as follows:
Provisions contained in any title, part, or chapter of the code of laws enacted by § 2-16-13 may be construed and considered in the light of such arrangement and such position in any case where such arrangement or such position tends to show the intended purpose and effect thereof.
SDCL 2-14-12 reads as follows:
The rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the code of laws enacted by § 2-16- 13. Such code establishes the law of this state respecting the subjects to which it relates and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice.
SDCL 34-8-5 reads as follows:
When a petition, as provided for in § 34-8-3 for such purposes has been filed and the election provided for in § 34-8-4 held, in lieu of issuing bonds for the purpose of purchasing an existing hospital, with or without equipment and supplies, or other suitable buildings or for purchasing of a site, erection, establishment, and maintenance of such county hospital, the board of county commissioners may levy a tax, not to exceed one mill, upon the assessed taxable property of such county in any one year to provide a sinking fund for the purpose of purchasing an existing hospital, with or without equipment and supplies, or other suitable buildings or for purchasing a site, erecting, establishing, and maintaining or lease to be maintained such a county hospital and when a sufficient amount has been raised for such purposes, the board of county commissioners shall proceed to purchase or to erect, equip, and maintain or lease to be maintained such a county hospital in the manner provided in this chapter.
It is my opinion the tests in SDCL 34-8-5 have been substantially complied with. Twenty years ago a petition was filed pursuant to SDCL 34-8-3. The election was held as provided in SDCL 34-8-4. The permissive phraseology then indicates that the board may fill a fund either by issuing bonds or by levying a tax. The Board also may provide a sinking fund for the purchase of an existing hospital which according to Attorney General Opinion No. 74-15 and SDCL 34-8-1 may be a clinic.
The test would be whether or not a sufficient amount has been raised for the purchase of the facility. It matters not in my opinion whether the SDCL 34-8-20 fund was filled by bonding, taxation or by the operation of payment of receipts into the funds. SDCL 34-8-5 states that when a sufficient amount of money has been collected, then the Board is authorized to 'proceed to purchase' . . . 'in the manner provided in this chapter.' SDCL 34-8 speaks of purchasing existing hospital and site upon an appraisal by a board established by the usual procedure.
It is therefore my opinion that the Board of County Commissioners has the authority pursuant to SDCL 34-8 to purchase existing facilities with SDCL 34-8-20 funds upon an appraisal procedure established by the board.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
