April 27, 1979

Mr. Gordon Milbrandt 
Auditor General 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 79-11

The Sale of Farm Animals, Harvested Crops, and Other Farm Products by Various State Institutions

Dear Mr. Milbrandt:

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

FACTS: 

A state institution, e.g. South Dakota State University, South Dakota Human Services Center, South Dakota State Penitentiary, etc., owns farm animals, harvested crops, and other farm products.

Based on the above factual situation, you have asked the following specific questions:

QUESTIONS: 

1.  If a particular state institution wishes to sell its farm animals, harvested crops, or other farm products, must the institution comply with SDCL § § 5-23-32 and/or 5-24-9? 

2.  If the answer to question number 1 is yes, does a sale through a grain or livestock exchange satisfy the procedural requirements? 

3.  If the answer to question number 1 is no, what procedure should be followed if the farm animals, harvested crops, or other farm products are to be sold?

IN RE QUESTION NO. 1:

In my opinion, the answer to your first question is no.  SDCL 5‑23-32 deals with sale of surplus furniture, fixtures, equipment or supplies.  These terms, in my view, do not encompass matters such as farm animals, harvested crops, and other farm agricultural products.

IN RE QUESTION NO. 2:

In view of the answer to your first question, no response to your second question is appropriate.

IN RE QUESTION NO. 3:

SDCL 13-49-15, 13-49-19, 1-15-10, and 1-15-16.1 indicate to me that the Board of Regents and the Board of Charities and Corrections, which operate the facilities you refer to, do have authority to sell such farm products which result from their farm operations.  If the Legislature had intended these matters to be handled through SDCL 5-23 and 5-24 they could easily have provided for that procedure.  This not being specified, I can only conclude that the Legislature must have intended this to be a matter to come under the general authorities of the boards cited above.

In the conduct of this sale, I believe it is important that the members of the various boards and officers and employees of the institutions make every effort to make these sales of products in such a way that they do not become personally involved with the sale and that there is no favoritism or even an appearance of impropriety in making these sales.  In this regard, it would be my view that a sale through a grain or livestock exchange would normally be sufficient and appropriate to satisfy the requirements of the above-cited provisions of law.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

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