South Dakota Attorney General Opinions
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Minnehaha and Turner Counties may be asked to endorse and participate in a private nonprofit community action corporation. Can a county create or participate in such a corporation, contribute money to it, appoint county commissioners as board members, and was the counties' inclusion in the state community action agency through the Governor's 1974 executive order valid?
A county cannot itself create or be a corporate officer/incorporator of a private nonprofit, but county officials can serve as incorporators or directors as individuals. Counties can support a properl…
When a county union is certified as the exclusive bargaining representative for highway department employees, is the county commission's mandatory duty to negotiate salaries with the union an unconstitutional delegation of the commission's legislative authority over county compensation?
No. Janklow concluded SDCL chapter 3-18 is constitutional. The county commission's duty to negotiate does not transfer its decision-making authority. Under SDCL 3-18-7 and 3-18-8 the county commission…
Must the South Dakota Department of Health accept a tribal court order of adoption as the basis for issuing a new birth certificate under SDCL 34-25-16.1?
No. AG Janklow concluded the state had no duty to accept a tribal court order of adoption for purposes of issuing an amended birth certificate. The Full Faith and Credit Clause covers state judgments …
When state employees who live in Pierre have to fly somewhere on official state business, can they be reimbursed for the mileage from their home to the Pierre airport?
Only for the portion that is outside the Pierre city limits, and even then only with Travel Commission approval. Rule 51:01:02:01 of the State Board of Finance prohibits mileage reimbursement for trav…
When the Sioux Falls Bicentennial Commission held celebrations and sold tickets to bicentennial events in 1975-76, did the proceeds from ticket sales have to bear South Dakota sales tax?
No. SDCL 10-45-13 exempted gross receipts from sales of tickets or admission to community-operated celebrations sponsored by certain municipal nonprofit corporations or associations. The Sioux Falls B…
If a person elected to the board of trustees of a South Dakota sanitary district moves outside the district during her term, must she give up her seat? Does state law require board members to live inside the district?
No. SDCL chapter 34-17 contains no express requirement that a sanitary-district trustee reside within the district. SDCL 37-14-18 requires the nominating petition to be signed by qualified electors of…
When the South Dakota Legislature adopted the Multistate Tax Compact but stripped out the line that said Article VIII (interstate audits) would be in force, did the state still get the interstate audit authority, or was that piece left out?
South Dakota got the interstate audit authority. Janklow concluded that Article VIII's section 1 (saying it would be in force only as specifically provided) was prefatory surplusage that did not survi…
Can Campbell County use its snow removal equipment on the streets of Mound City and Artas at county expense, or does it need a formal agreement first?
It needs an agreement. South Dakota's intergovernmental cooperation statute SDCL 1-24-3 allows political subdivisions to enter agreements for joint or cooperative action, and SDCL 31-12-41 specificall…
Lawrence County's Board of County Commissioners had statutory zoning authority under SDCL Chapter 11-2. The organized township of St. Onge within Lawrence County wanted to take over full zoning powers (not just fact-finding) for its territory. The St. Onge township board had been making zoning recommendations to the county zoning commission. Could the county commissioners delegate full zoning authority to the township board?
No. SDCL 8-2-9 specified the limited circumstances when a township could pass zoning ordinances (only townships near a city of 50,000+ people, which St. Onge was not). SDCL 8-2-10 expressly limited or…
The 1973 Personnel Policy Board, created by Senate Bill 71, has authority to make 'non-conflicting rules' on sick leave, vacation leave, and other fringe benefits. May the Board pass rules letting state employees use sick leave for maternity, funeral leave, or to care for ill children or spouses?
Maternity yes; funeral and family care no. Sickness has long been interpreted to include confinement caused by child birth, so maternity sick leave is permissible. But sick leave is statutorily limite…
South Dakota Highway 50 ran through Vermillion. In 1951, the state acquired an extra 35 feet of right-of-way by warranty deed in anticipation of highway widening, but the widening did not use all the new right-of-way. Vermillion now wanted to build sidewalks along Highway 50, and the sidewalks would fall entirely within the state's right-of-way, with a narrow strip of state land between the sidewalk and the private properties. Who paid for the sidewalk construction and repair: the state (which technically owned the land where the sidewalk would sit) or the abutting private property owners?
The abutting property owners. Even though the state had taken the right-of-way by warranty deed (which sounds like fee simple), Article VI, Section 13 of the South Dakota Constitution provided that 't…
The 1972 South Dakota Constitution amendment allowed the Governor to reorganize state agencies, boards, and commissions by executive order. But the same amendment carved out an exception for elected constitutional officers (Governor, Lt. Governor, Attorney General, Secretary of State, Auditor, Treasurer, Commissioner of School and Public Lands). Could the Governor use his executive-order reorganization power to strip the Office of the Commissioner of Consumer Affairs out of the Attorney General's office and move it to a different department?
No. Article IV, Section 8 of the Constitution expressly excepted elected constitutional officers (including the Attorney General) from the Governor's reorganization authority. Once the Legislature had…
Several South Dakota school teachers are also serving in the Legislature. Can a school district continue to pay a teacher's regular salary during the legislative session, and can individual school board members be held personally liable if it does?
Yes, the district may continue paying. SDCL 3-8-4's dual compensation ban applies only to people paid from the state treasury, and teacher salaries come from the school district, not the state. Board …
The 1972 Legislature passed three acts (Chapters 38, 39, 44) raising salaries for elected county officials including treasurers, auditors, clerks of courts, registers of deeds, states attorneys, and sheriffs. The acts did not specify an effective date. The state Constitution said compensation of public officers could not be 'increased or decreased during his term.' Did the new salary acts take effect July 1, 1972 (the default date for legislation without a specified date), or did they have to wait until each official's next term started in 1973?
July 1, 1972. The constitutional ban on mid-term salary changes (Article XII, Section 3) had been effectively superseded by a 1946 amendment to Article XXI, Section 2, which allowed the Legislature by…
Are privately or federally sponsored low-rent or elderly multi-family housing units in South Dakota classified as hotels under the state Fire Safety in Hotels law, subject to state Fire Marshal inspection?
No. SDCL 34-34-1 defines hotel by reference to transient occupancy. Low-rent housing and housing for the elderly are designed for permanent residents who qualify under continuing housing-authority cri…
A Lawrence County assessor accidentally added an extra zero to a property's valuation sometime before 1962, making the value appear as $27,900 instead of $2,790. The error went undetected through 1969 tax years. When the taxpayer applied for an abatement and refund in August 1971, the county commissioners approved refunds for 1964-1969 but refused to refund earlier years because of the six-year statute of limitations. Was the statute of limitations a valid bar?
No. The statute of limitations did not bar abatement and refund of taxes that were illegally levied to begin with. The state Constitution prohibited assessing property at more than its actual value, a…
Could South Dakota's Educational Television stations legally produce and broadcast programs giving time to candidates running for local, state, and federal offices, as long as they followed FCC Fairness Doctrine equal-time rules?
For federal candidates: yes, and they had to. The 1971 Federal Election Campaign Act required all broadcasting stations (commercial and noncommercial educational alike) to give legally qualified feder…
The 1972 Legislature appropriated $50,000 to the Legislative Research Council for a tax study. Governor Kneip signed the appropriations bill but then ordered the State Budget Officer to 'encumber' the $50,000 until he received a written justification from LRC about how the money would be used. Did the Governor have authority to block release of an appropriation pending his approval of the spending plan?
No. Appropriating money is a legislative function the Governor may not perform. The Governor's only constitutional power over appropriations is the line-item veto, which Governor Kneip had not used on…
South Dakota's compulsory school attendance statutes (SDCL 13-27-1 through 13-27-7) list reasons a child can be excused from attending school. Do those statutory grounds also limit a school district when it lets a student miss a few days for an educational trip, or can the school board write its own policy on field-trip absences?
The statutory excuse grounds apply only to releasing a student from membership in the school, not to day-to-day field-trip excuses. School boards have broad implied authority to adopt their own rules …
A county auditor wanted to send deputies into the community (workplaces, shopping centers, nursing homes) to register voters, rather than requiring all registrations at the auditor's office. Was that legal? Could the auditor use existing deputies or appoint special outside-the-office deputies? Could auditors register voters from other counties who happened to be in their county temporarily? And how flexibly could 'physically unable to appear' in the absentee-registration statute be interpreted?
1) The auditor could not appoint special outside-the-office deputies, but could use existing deputies (authorized by county commissioners) to register voters outside the office, prescribing the hours …
When a South Dakota highway construction project pushes a utility's power lines off private property and onto a new highway right-of-way (with federal aid paying for the move), can the State Highway Commission sign a subordination agreement promising that the utility will not have to bear future relocation costs if subsequent highway construction makes another move necessary?
No. South Dakota law treats utility facilities on highway right-of-way as subordinate to the state's dominant easement. If a future highway change requires relocation, the utility company pays. A subo…
Can a South Dakota board of county commissioners agree to settle a real-estate tax delinquency by accepting the full amount of back taxes from the former owner, without interest or penalty, when the property has since been taken over by a town?
Yes if the commissioners reasonably conclude the deal is in the county's best interest. SDC 57.0802(2) authorizes compromises on platted real property when the full tax amount cannot be realized by ta…
Can the South Dakota Board of Finance lawfully say that a state employee stops earning new annual leave once they put in notice that this vacation is the last thing before they quit?
No. Board of Finance Regulations 40.00800 and 40.00801 conflict with SDCL 3-6-6. As long as a person remains a state employee, including during a vacation that ends with termination, the employee cont…
The federal Mineral Leasing Act sent 37.5% of mineral revenues from public lands to the state where the land sat, to be used for public roads, schools, or other educational institutions as the state legislature directed. South Dakota had been crediting these funds to the school principal and interest fund. SDCL 4-3-17 and 4-3-18 said the state treasurer should receive federal payments and remit them to county treasurers for distribution to taxing subdivisions in tax-distribution proportions, but those sections were not explicitly written for Mineral Leasing Act monies. Did those statutes govern Mineral Leasing Act distribution, or should the existing school-fund crediting practice continue?
Yes, SDCL 4-3-17 and 4-3-18 governed. Mineral Leasing Act monies should be remitted to the county where the federal land was located, then distributed among the county's taxing subdivisions in the sam…
South Dakota's school funding law made an independent school district ineligible for general support foundation funds if it operated a one-teacher rural school with an average daily membership (ADM) of five or fewer pupils, when there was another elementary school within five miles. What is the minimum enrollment a one-teacher rural school could have without putting the district's foundation funding at risk?
Six students. ADM is calculated by aggregating each day's actual membership and dividing by total school days. If a school had only five students enrolled, every student would have to be present every…
In a South Dakota public-school collective bargaining negotiation, what topics is the school board required to negotiate with the teachers, and what topics can it keep off the table as management rights?
The Public Employees' Unions Law (SDCL chapter 3-18) requires negotiation over wages, hours, and 'other conditions of employment,' but Mydland read the federal NLRB cases (Westinghouse, McCall, Seattl…
1970 Senate Bill 219 added a new section to SDCL chapter 3-5 letting the Director of Purchasing and Printing buy a blanket bond covering many state officials, with the approval of the Attorney General and the Insurance Commissioner. Does this mean blanket bonds are now mandatory, can only one bond be issued, and what role do the AG and Insurance Commissioner actually play?
Blanket bonds are permissive, not mandatory. The Director of Purchasing and Printing has discretion to purchase or not. If he chooses to purchase, the AG and Insurance Commissioner must each independe…
Can a South Dakota school board buy group insurance that pays its employees a wage substitute when they are out with a disability or sickness, or is that off-limits because the board's enabling statute only mentions 'health' insurance?
Yes. Mydland concluded that wage-protection insurance for disability or sickness fits inside the statutory definition of 'health insurance' in SDCL 58-9-3, so SDCL 13-10-3 authorizes school boards to …
The Small Business Administration proposed that South Dakota's permanent school fund invest in the guaranteed portion (90%) of SBA-guaranteed bank loans to small businesses. The state Constitution allowed the fund to be invested only in 'securities guaranteed by the United States.' Could the fund buy a 90% SBA guarantee on a bank's small-business loan?
No. Article VIII, Section 11 of the South Dakota Constitution restricted the permanent school fund to United States bonds and securities 'guaranteed by the United States.' The implementing statute SDC…
When a common school district was carved up and merged into two different independent districts in 1969, who got to decide whether the elementary school in one of the new pieces stayed open or closed: the people in the closing-vote area only, the people in the original common district, or the school board?
Only the people who lived in the area that originally operated the elementary school (the 'A-1' area in the example) got to vote on closing it. Once the reorganization carved away the 'A-2' area into …
South Dakota's 1969 Minimum Wage Law set a one-dollar-per-hour minimum for workers 'over the age of seventeen' in listed industries including restaurants. Does coverage start when the worker turns seventeen, or when the worker turns eighteen? And does the law apply to car hops working at a drive-in?
Coverage started at seventeen, not eighteen. 'Over the age of seventeen' meant the worker had reached his seventeenth birthday, so a seventeen-year-old car hop was covered. And yes, a drive-in qualifi…
A candidate for Aberdeen mayor had lived in Aberdeen for 25 years total, but had spent about two years living and registered to vote in Sioux Falls before moving back. The statute said a city commissioner must have been 'a resident of the city for at least two years prior to his election.' Did the two-year residency have to come immediately before the election, or could it have been at any earlier time in the candidate's life?
It had to be immediately before the election. The AG ruled that reading the statute to allow any two-year residency from any point in the candidate's past would lead to absurd results (a person who li…
If a small South Dakota independent school district contracts with an Iowa school to send some of its students there for high school, can that same district also send students to a South Dakota '12-year' district under the same kind of contract arrangement? Or does choosing one path lock out the other?
The district could do both. SDC 1960 Supp. 15.3302 authorized an independent school board to assign secondary students and pay their tuition at any public school in South Dakota or in another state. S…
Yankton and Clay Counties have a new District County Court that also absorbs the municipal courts of Yankton and Vermillion. How is the court's annual budget split between the two counties and the two cities, and who actually does the math?
Only the District County Judge's $16,500 salary is split among the counties and the two cities; the rest of the budget falls on the counties alone. The split uses the latest federal census, counting e…
Could Brookings County use its mill levy or historical-display budget to help the privately owned Brookings County Historical Association build, equip, or maintain a historical museum building, and could the answer change if the association leased the museum to the county?
Substantially no. The AG concluded the county could not contribute to constructing or maintaining a privately owned museum, although the existing 5-cent-per-inhabitant budget under SDC 12.2310 could b…
We are a South Dakota public school district. The two Hutterite Colonies inside our boundaries want us to set up a public school on each colony. The colonies would furnish the building, maintain it, pay operating costs, and possibly contribute to the teacher's salary. We would employ and supervise the teacher. Is this legal under the South Dakota Constitution and statutes?
Yes, if (and only if) the on-colony school is truly a public school: open to all children of school age regardless of religion, free of any religious instruction or religious control during school hou…
If a city is going to build something like a water main extension and pay for it with special assessment bonds, does the city council have to pass a separate appropriation ordinance to spend the bond proceeds? Or can the bond authorization itself be the spending authority?
The bond authorization itself was enough. Once a city issued special assessment bonds under SDC 45.2114 to fund a public improvement, the municipality could spend the bond proceeds on the improvement …
If a retail merchant gets Class 4 compensation plates for his truck and then uses the same truck on separate trips to haul previously sold merchandise to customers (an exempt use), does he violate the law, and can a police officer rely on the displayed plates as proof the load is lawful?
No violation, but a police officer cannot rely on the displayed plates as proof. The 1961 amendment to SDC 44.0422(6) made the exemption turn on how a vehicle was used, not whether the vehicle had pla…
Does a South Dakota township have the legal authority to buy workmen's compensation insurance for its township employees, including township officers and the board of supervisors?
Yes. Although no statute expressly granted townships authority to buy workmen's compensation insurance, SDC 64.0106(5) of the Workmen's Compensation Law expressly allowed political subdivisions (inclu…
A serviceman stationed in South Dakota wants to register his car here. He bought it in his home state and paid sales tax there, but later moved to a state without sales tax and re-registered it there before being assigned to South Dakota. Does South Dakota's additional registration tax apply to him, or does the federal Soldiers and Sailors Civil Relief Act exempt him?
South Dakota's additional registration tax was essential to registration (a registration fee, not an ad valorem tax), so it could be charged to non-resident servicemen who chose to register their vehi…
Can a South Dakota city sign a 30-year lease to operate a privately built home for the aged next to its municipal hospital, and can the existing hospital board manage it, without a public vote?
Yes, with no public vote required. Under SDC 45.0201(13) and 45.0202(2), a city had express authority to lease and operate a home for the aged as part of its hospital function, no electorate approval …
If a new Natural Resources Conservation District is electing its five supervisors at the general election, what kind of legal notice does it have to publish? Newspaper notice? Posting in public places? The statute doesn't say.
South Dakota law did not require any specific public notice of the openings for Conservation District supervisor positions. The district could publish notice if it chose (whether by newspaper publicat…
When a South Dakota official saw that an Iowa municipality had financed a library building through a lease-purchase agreement, could a South Dakota municipality also enter into a lease-purchase agreement to build a library building?
No. The AG concluded that South Dakota municipalities have only the powers expressly granted by statute or fairly implied from those powers. The legislature had granted lease-purchase authority for sp…
A Huron business association offered to donate a heating system for the State Fair Hippodrome, paying for installation and getting nothing in return except the chance to rent the building later like anyone else. Can the State accept the gift, and what's the proper process?
Yes, the State may accept the gift. The five donor-imposed conditions (state-engineer-approved installation, irrevocable transfer to state, no consideration to donor, no rental priority, all at donor'…
In South Dakota, who actually sits on a county political party's central committee, and who decides who fills a vacancy if a county nominee or a joint legislative district nominee drops out?
The county central committee is just the precinct committeemen and committeewomen elected at the primary. They are the only people who can vote to fill a nomination vacancy in a county office (or, wor…
Our private ambulance company is shutting down. The city and county want to step in and either run ambulance service themselves or pay a private operator to keep it going. We did not budget for this in our 1968 budget. Can we pay the bill out of the County Poor Relief Fund? Can we set up a special levy to raise the money? Do we have to take competitive bids if we contract with a private operator?
No, no, and no. The County Poor Relief Fund could not subsidize ambulance service for the general public (it was restricted to aid for the poor). Neither the city nor the county could establish a spec…
If a State Hospital inmate at Yankton is hurt while taking a Vocational Rehabilitation training course using dangerous equipment, can the State, the State Department of Public Instruction, the individual official who approved the course, or the teacher running it be held liable?
Not the State, not the Department of Public Instruction, and not the official who approved the course or funding. All three were protected by governmental immunity because the Vocational Rehabilitatio…
If a state construction contract was advertised to be opened at one place (Springfield, SD), but the bidder instructions told contractors to mail bids to a different place (Pierre), and a contractor submitted his bid at Pierre instead of Springfield, can the State still accept his low bid?
Yes. The advertisement and the bidder instructions contained conflicting addresses, which created the confusion. The State Engineer's workaround (open the Pierre-delivered bid in Pierre, telephone the…
When an heir refused to accept his share of a probate estate in the 1930s, the share was placed in a bank trustee administered by the circuit court, and the trustee bank thereafter sent annual interest cashier's checks made out to the refusing heir which the clerk of courts could not deposit or process, how should the clerk and county treasurer handle the accumulated checks?
Petition the circuit court administering the trust. The AG concluded that because the trust was being administered by the circuit court under SDC ch. 33.26, the court had inherent equitable authority …
When parents who had moved from out of state to Mitchell, South Dakota in fall 1966 had two intellectually disabled children attending out-of-state and later in-state private special-education schools, did the children acquire South Dakota school residence (and thus tuition liability for the Davison County School District) when the family arrived in Mitchell, or only when the Department of Public Instruction tried to assign them to the Hope School in Sioux Falls in 1968?
The children acquired school residence in Mitchell when the family arrived in 1966. The AG concluded school residence under SDC 1960 Supp. 15.3003 was the place where the student actually lived with p…
Can a South Dakota municipality issue revenue bonds to build a multi-use auditorium that includes a city liquor store, a youth hall, and a permanent space exclusively for the local American Legion post?
The municipality can build the auditorium and include the liquor store and a public youth hall, but not the dedicated American Legion space. Giving exclusive use of part of a public building to a priv…
Clark County had to split a municipal ward across two county commissioner districts to satisfy one-person-one-vote. Does that violate the South Dakota statute requiring each municipal ward to be a separate election precinct? If not, how should the election precincts be set up for the primary and general elections?
The split is valid. One-person-one-vote, anchored by Bailey v. Jones, overrides any state statutory provision that would create an artificial barrier to reapportionment. The split ward should be divid…
Can a South Dakota county invest its courthouse building fund and other accumulated county funds in Farmers Home Administration (FmHA) insured loans?
Yes, within the limits of SDC 48.0507. That statute let public funds (including county building funds) be invested in 'securities of the United States,' which the AG read to include any fully governme…
I am a sitting state legislator and I have been offered the job of director of my county's welfare department. Can I hold both positions at the same time, or does one of South Dakota's constitutional provisions prohibit it?
Yes, the positions are compatible. A county welfare director is an employee of the county (not a state officer), so Article III, Section 3 of the South Dakota Constitution (which restricts state legis…
Our common school district contracts with a neighboring district to bus our high school students there. But some students decided to attend a different high school instead, and never used our contracted bus. Now their parents want us to pay three years of mileage to the other school. Do we have to pay?
No. SDC 15.3309 entitled students to transportation or board-and-room allowance only when they did not have access to bus service furnished by their school district. Students who had access to the dis…
If a teenager has gone by his stepfather's surname his whole life, even though no court ever changed his name and his stepfather never adopted him, should South Dakota issue his driver's license in his birth-certificate name or his everyday name?
In his everyday assumed name. The 1968 SD AG concluded that, under the common law, a person may use any name they choose so long as it is not for fraud or to harm others. The purpose of license regist…
Can the manager of a livestock auction barn fire the state veterinary inspector who is stationed at his auction, if the manager is unhappy with the inspector?
No. Under SDC 40.2007, veterinary inspectors at livestock auction agencies were hired by the State Livestock Sanitary Board (with USDA Animal Disease Eradication Branch approval) and worked under Boar…
If a South Dakota town's new municipal sewer system makes the old outhouse on an indigent person's home a public nuisance, can the county pay to install indoor plumbing for that person and pick up the quarterly sewer bill, using county poor-relief money?
Yes. The 1968 SD AG concluded that county commissioners' duty under SDC 50.0101 to provide 'maintenance or allowance for necessaries' for the county poor was broad enough to cover both installing indo…
Do the people who work the polls at a city election (the 'judges' and 'clerks' of the election) get paid for their time? If so, who actually pays them, the city or the county?
Yes, they are paid, and the city pays. South Dakota's specific municipal election statutes did not fix a compensation rate, but the general election laws (which the municipal statutes incorporated by …
Could a South Dakota county judge who was statutorily authorized to engage in the private practice of law personally keep the statutory compensation paid by the county for representing an indigent criminal defendant, or did he have to turn the fees over to the county treasurer under SDC 48.0608?
The county judge could keep the fees. The AG concluded that compensation paid for serving as appointed counsel was for duties outside the official duties of the county judge office, not by virtue of t…
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Attorney general opinions in South Dakota are written by the South Dakota Attorney General's office in response to questions from state agencies, legislators, and prosecutors. They are not binding like court decisions, but courts and agencies treat them as persuasive guidance on how state law applies. Every opinion above has a plain-English question and short answer, plus a link to the full original text.