July 17, 1980

Mr. William H. Coacher 
State's Attorney 
Meade County 
Sturgis, South Dakota 57785

Official Opinion No. 80-47

Legitimacy of Issuing County Revenue Bonds Under SDCL 9-54-1 for the Construction of a Vocational-Technical Institution

Dear Mr. Coacher:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

Pursuant to statute the Black Hills Vocational-Technical School was created and began operation in Rapid City in 1968.  Later, pursuant to statute, Northwestern Vocational-Technical Training School was organized and began operations in Sturgis, South Dakota in 1970.  Initially both schools were financed by fifty percent federal money and fifty percent capital outlay funds.  The facilities house both high school and post-secondary students and the present facilities of both institutions are inadequate to serve post- secondary students.  Capital outlay funds are no longer available for new development; therefore, a non-profit corporation known as Western Dakota Vocational-Technical Foundation, Incorporated, was established to promote and raise funds to establish a combined vocational-technical institution in the area between Rapid City and Sturgis to serve the needs of post-secondary students in western South Dakota.  The Foundation has established as one of its goals the construction of vocational school facilities in a series of four phases.  To implement this goal the Foundation has approached the board of commissioners of Meade County for authorization to issue county revenue bonds in an amount originally set at two million dollars. 

If allowed to construct the proposed facilities the Foundation would lease  the facilities to the Meade School District.  Attempts to secure funding from the Legislature have been unsuccessful.

Based upon the above facts, you have asked the following question:

QUESTION: 

Under SDCL 9-54-1, is the construction of a vocational-technical institution a legitimate and lawful purpose for the issuance of county revenue bonds?

SDCL 9-54-1 provides: 

The purposes of this chapter is to stimulate and develop the general economic welfare and prosperity of the state through the promotion and advancement of industrial, commercial, manufacturing, agricultural, natural resources, research, data collection, health service and recreational development and the reduction of water and air pollution resulting from such developments; to encourage and assist in the location of new business and industry in this state and the expansion of existing business development; and to promote the economic stability of this state by providing greater employment opportunities and diversification of industry thus promoting the general welfare of the citizens by authorizing all municipalities of the state to issue revenue bonds to finance projects comprising real or personal  property or both, useful for any of these purposes.

SDCL 7-18-16 provides: 

All powers conferred upon the municipalities under Chapter 9-54 relating to the power to issue revenue bonds shall also be applicable to any county.

Promotion and advancement of educational opportunities is conspicuously absent from the designated purposes of SDCL 9-54-1 in spite of two amendments expanding the list of purposes.  It has been held 'not permissible to construe a statute on the basis of a mere surmise as to what the legislature intended and to assume that it was only by inadvertence that it failed to state something other than what it plainly stated.'  U.S. v. Deluxe Cleaners and Laundry, Inc., 511 F.2d 926 (4th Cir.1975).    Although 'providing greater employment opportunities and diversification of industry' are listed as purposes, and vocational education could arguably help achieve these purposes, it must be presumed, especially in the absence of any specific references to education, that a more direct attainment of these purposes was intended by the Legislature.

Several other statutes specifically authorize funding and the issuance of bonds for a project such as that proposed by the Western Dakota Vocational- Technical Foundation, Inc.

Under SDCL 13-39-19 the State Board of Vocational Education is authorized to distribute funds appropriated by the Legislature or granted by any federal  agency to post-secondary vocational schools.  SDCL 13-39-37(7) authorizes the State Board of Vocational Education to make rules governing the construction of new facilities.

Under SDCL 13-39-27 any school district in the state is authorized to expend its monies for vocational education.  SDCL 13-19-7 authorizes the school districts to issue bonds to secure such funds.

Pursuant to SDCL 5-12-7 the South Dakota Building Authority is allowed to construct classrooms and similar facilities.  SDCL 5-12-20 authorizes the Building Authority to issue revenue bonds to fund such projects.

Since the above-mentioned statutes, unlike SDCL 9-54-1, specifically authorize funding and the issuance of bonds for educational purposes, it is reasonable to conclude that the Legislature did not intend that county revenue bonds be issued for the purpose of the proposed construction.  The ineffectiveness of one or more of the authorized channels of funding does not alter the apparent intention of the Legislature when it enacted SDCL 9-54-1.

Based on the above, it is my opinion that the construction of a vocational-technical institution is not a legitimate and lawful purpose for the issuance of county revenue bonds under SDCL 9‑54-1.

Respectfully submitted,

Mark V. Meierhenry
Attorney General