February 29, 1980
Mr. Jeffry L. Bloomberg
Deputy State's Attorney
Butte County Courthouse
Belle Fourche, South Dakota 57717
Official Opinion No. 80-12
Federal in lieu payments
Dear Mr. Bloomberg:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
The Butte County Auditor has raised several questions regarding the proper distribution of federal in lieu payments made to Butte County under Public Law 94-565, codified at 31 U.S.C. 1601-1606. These payments are made to Butte County in lieu of tax proceeds for United States BLM land located within Butte County.
Under the Federal In Lieu Payments Act, supra, payments are made directly to the eligible units of general purpose governments, which in South Dakota are counties, and expenditures are to be for the purposes designated by the federal law and accompanying regulations. As to the intent of Congress on eligible units see Senate Report 94-1262 and the Comptroller General of the United States decision B-167553 dated October 16, 1978. Also see South Dakota Attorney General's Opinion #77-95.
Your predecessor, in Attorney General's Opinion 77-95, states that 'the federal act and regulations adopted pursuant thereto quite clearly established the purpose for the payments, the recipients thereof and the method of distribution.' The Opinion goes on to state:
SDCL 4-3-17 is enabling legislation which authorizes the receipt by the State of South Dakota of certain monies derived from federally owned lands. This provision also implies that said monies, by the terms of federal legislation appropriating the same, may be distributed to local units of government. By contrast, P.L. 94-565 provides for payments directly to defined units of local government. The State does not become a party to the transaction, nor is it given the discretion to determine if the monies are, in fact, to be distributed to local governments or placed in the State treasury for State purposes.
The 54th Session of the South Dakota Legislature passed S.B. 153, codified at SDCL 5-11-6, which directs the distribution of federal and state payments in lieu of tax proceeds in the same manner as taxes are distributed.
Since the July 1, 1979 effective date of SDCL 5-11-6, Butte County has received an adjustment payment for Fiscal Year 1978, a period prior to the amendment to SDCL 5-11-6. That adjustment payment was made to Butte County as a result of a Comptroller General of the United States Opinion which determined that a number of local governmental units including Butte County, had been wrongly deprived of in lieu payments in the past.
Based upon the above facts, you have asked the following questions:
QUESTIONS:
1. Is SDCL 5-11-6 applicable when the authorizing federal legislation, P.L. 94-565, specifically directs the payments to a general purpose unit of government?
2. Does SDCL 5-11-6 supersede SDCL 41-16-11 through 41-16-15, SDCL 13-14-3, and SDCL 13-14-3.1, and if so, are these payments to be distributed on the same basis?
3. Does the language of SDCL 5-11-6 direct the distribution of payments to all taxing entities or only to those entities which contain 'entitlement lands'?
4. Should adjustment payments made to Butte County for Fiscal Year 1978, but not received by Butte County until after July 1, 1979, be distributed as permitted under the law prior to the effective date of SDCL 5-11-6 or must the payment be distributed in accordance with the amendment to SDCL 5-11-6?
IN RE QUESTION NO. 1:
In my opinion the answer to your first question is yes. It is a well recognized principle of law that statutes passed by the Legislature are presumed to be constitutional, State ex re. Jensen v. Kelly, 65 S.D. 345, 274 N.W. 319 (1937); State ex rel. Oster v. Jorgensen, 81 S.D. 447, 136 N.W.2d 870 (1965).
Further, it is not the role of the Attorney General's Office to advocate the unconstitutionality of state statutes.
Accordingly, it is my opinion that SDCL 5-11-6 does not conflict with federal law (P.L. 94-565), and that SDCL 5-11-6 is lawful and is applicable to the payments received by Butte County under Public Law 94-565.
As noted in your question, P.L. 94-565, § 6(c) defines 'unit of government' as a unit of general purpose of government. Payments under P.L. 94-565 are made to local units of government as defined above, except for certain exceptions which are not relevant in section 3 of that act.
These statutory provisions, however, do not make it unlawful or inappropriate for a state legislature to require that such funds be utilized in a manner similar to any other tax monies raised by the county. Absent federal restrictions on the use of these funds for school purposes, these funds can be used for legitimate governmental purposes such as schools. Kendall v. Towns County, 274 S.E.2d 577 (1978).
IN RE QUESTION NO. 2:
In my opinion the answer to your second question is no. The law does not favor repeals by implication, State v. Myott, 246 N.W. 786 (1976). The provisions of the statutes you refer to are specifically related to certain specific federal payment in lieu programs, i.e., payments under the 'Agricultural Act of 1906' and the 'Bankhead-Jones Farmer-Tenant Act.' Consequently, these special specific statutes would under rules of statutory construction constitute an exception to a general provision such as is found at SDCL 5-11-6; it would not be repealed by such a general provision. Glenham Independent School District No. 12, Walworth County v. Walworth County Board of Education, 78 S.D. 63, 98 N.W.2d 348; In re Heartland Consumers Power District, 180 N.W.2d 398 (1970); Antonan v. Swanson, 74 S.D. 1, 48 N.W. 2d 161, 28 A.L.R.2d 1 (1951).
IN RE QUESTION NO. 3:
SDCL 5-11-6 does not contemplate funds being distributed to tax entities which contain no 'entitlement lands' which are the basis for the federal in lieu of taxes payments being made in the first place.
IN RE QUESTION NO. 4:
After the effective date of the amended version of SDCL 5-11-6, all future payments covered by the act must be made under the amended version of the statute. This would include in my opinion 'adjustment' payments you refer to. The former language of SDCL 5-11-6 cannot be resurrected by an in lieu of payment 'adjustment' since the provisions of the statute, once in effect, can be changed only by the Legislature or by court interpretation. The 'adjustment' payment in this situation is authorized by neither of these methods.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
