September 26, 1979
Mr. George H. Danforth
Beadle County State's Attorney
312 Kansas Avenue, S.E.
Huron, South Dakota 57350
Official Opinion No. 79-36
Procedure for notice and sale under SDCL 7-32-1
Dear Mr. Danforth:
You have requested my official opinion concerning the disposition of county property pursuant to SDCL 7-32-1, which provides:
The board of county commissioners shall constitute boards of survey for their respective counties and when any personal property in the custody of the county officers shall become unfit for use by reason of change, wear, tear, or otherwise and is beyond repair, it shall be the duty of the said board to inspect, condemn, appraise, and sell such property at public or private sale as, in its judgment, will be most expedient, or it may exchange such property for other personal property required for use of the county. All money derived from the sale of such property shall be paid to the county treasurer. A note shall be made in the inventory for that year of the condemnation and sale of such property.
QUESTIONS:
1. What specific procedure is contemplated by SDCL 7-32-1 for the notice and sale of unfit personal property?
2. Does SDCL 7-32-6 affect this procedure?
IN RE QUESTION NO. 1:
In my opinion SDCL 7-32-1 requires the commissioners to first find that the property is unfit for use by reason of change, wear, tear, or otherwise is beyond repair. They then must inspect, condemn, and have the property appraised. After this is properly done, the commission should made the determination whether a public or private sale will be most expedient. It then may proceed with the sale in the manner that it feels in their best judgment will obtain the highest price. The statute gives the commissioners discretionary powers, and the commissioners thus are acting in a fiduciary capacity and must exercise good faith. Bosworth v. Hagerty, 99 N.W.2d 333 (S.D. 1959). One court has described the standard for commissioners' action in such a situation as being one of reasonable care and prudence customarily exercised by competent individuals in disposing of their own properties. Butler County v. Campbell, 182 S.W.2d 589, 592 (Mo. 1944). It should be noted that any sales of such property to county officials are precluded as being contrary to public policy. Bosworth v. Hagerty, 99 N.W.2d 334 (S.D. 1959).
Although its procedures apply only to the disposal of personal property in the custody of state officials, SDCL 5-24-9.2 may serve as a useful guide to any county sale of personal property under SDCL 7-32-1. SDCL 5-24-9.2 reads:
The property described in § 5-24-9 shall be sold only for cash at public auction or upon sealed bids. Before any sale shall be made, except sales to other agencies, departments or political subdivisions of the state, notice shall be given of the sale by the commissioner of the bureau of administration, which notice shall be published in three of the daily newspapers in the state, once each week for two successive weeks next before the day on or after which the sale is to be made. The notice shall state a day on or after which the sale will be made, and the location where such auction will be held, or a place where offers or bids will be received, which day shall be at least fifteen days from the first publication of notice. The right to reject any or all bids shall be reserved. The sale shall not be made before the day set but shall be made within sixty days thereafter. If bids or offers are used, the bids or offers shall be in writing and shall be filed in the bureau of administration at Pierre.
See also 1949-50 A.G.R. 125, 1957-58 A.G.R. 84.
IN RE QUESTION NO. 2:
The procedure specified in SDCL 7-32-6, provides:
If such property consists of personal property under five hundred dollars in valuation as determined by an appraisement and resolution providing for such sale and reciting such appraisement duly made by the county commissioners, the same may be sold at public auction to the highest bidder for cash, under direction of the county auditor after giving notice of such sale by publication once each week for two successive weeks in the official county newspapers. Any number of different items of personal property may be sold at such sale.
SDCL 7-32-6 would appear to have no application to the disposition of property under SDCL 7-32-1. SDCL 7-32-6 is the necessary completion of SDCL 7-32-2, which provides:
Whenever any county of this state shall abandon or is about to abandon any county property held for public use, or whenever any county shall select a new location for any public buildings, by which any public property shall cease to be used for public purposes, or when such property consists of personal property of over five hundred dollars in value and which is not required for public use, thereupon the board of county commissioners shall by resolution, duly acted upon at a regular meeting, direct the state's attorney to make and prepare a petition, duly executed by the chairman of such board, attached to which shall be a true copy of such resolution, praying the judge of the circuit court of the county wherein such public property is located to issue an order to show cause, directed to the electors of such county, why the court should not make a final order empowering such commissioners to proceed to sell such property.
As one can see, this statute makes no mention of any procedure for disposal of personal property which is not required for public use and has a value of less than five hundred dollars. SDCL 7-32-6 is therefore logically the procedure contemplated for the disposal of such property and should have no effect on the procedures set forth in SDCL 7-32-1. Further, the source note for § 7-32-6 reveals that it was formerly found at SDC 1939, 12.2209. SDCL 7-32-2 also has its source in SDC 1939, 12.2209. SDCL 7-32-1 has its source in SDC 1939, 48.0503.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
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