Can Hyde County levy a 1.5 mill 'courthouse, office, or jail building' tax to buy an existing privately owned building to use as a library, and if not, can the county commissioners buy the building anyway?
Plain-English summary
Hyde County's Library Board told the County Commissioners that the existing library was inadequate and that they had found a suitable privately owned building they wanted to buy and convert into a new library. The Board asked the Commissioners to levy a 1.5 mill tax under SDC 1960 Supp. 12.2303, the courthouse-and-public-buildings levy, which would have generated enough to fund the purchase. The Commissioners forwarded three questions to the AG: could the 1.5 mill levy be used for this purpose; if not, could the building be purchased some other way; and if so, what procedure was required.
The AG broke the analysis into the standard county-powers framework. A county is a creature of statute with no inherent powers; it can exercise only those powers expressly granted by the legislature, or necessarily implied from express grants. Pomerane v. Washabaugh County, State ex rel Bell v. Board of County Commissioners, and State ex rel Jacobson v. Hansen all stood for that core proposition. And under the AG's own 1963-64 opinion, when there was reasonable doubt about whether a county had a particular power, the doubt was resolved against the county.
On question one, the AG said no. SDC 12.2303 authorized a tax levy of up to 1.5 mills for "acquiring a site, constructing, renovating, improving, remodeling, altering, adding to or repairing a courthouse, office, or jail building." Buying an existing building for use as a library did not fit any of those categories. Acquiring an existing building was not "acquiring a site" (the site language presupposed a building project to follow). And a library was not a "courthouse, office, or jail." So the courthouse mill levy could not be used to fund a library purchase.
On question two, the AG said yes, with a separate statutory hook. SDC 1960 Supp. 12.2302 authorized county commissioners to provide for the purchase of library buildings out of regular county funds. The Library Board's authority to provide "suitable accommodations" under SDC 12.2503, combined with the commissioners' general power to expend county funds for county purposes, gave the legal foundation. A 1963-64 AGR 120 opinion had already held that commissioners could expend county funds to acquire existing buildings for county purposes; libraries were a county purpose.
On question three, the answer turned on the cost of the building relative to current-year revenue. SDC 12.2302 imposed a referendum requirement: any library-purpose expenditure "greater than can be paid out of the annual revenue of the county for the current year" had to be submitted to a vote of qualified electors and approved by majority. If the purchase price fit within current revenue, the commissioners could include it in the regular budget and proceed. If it did not, they had to determine the amount and rate of taxes needed and submit the purchase to a public vote.
Currency note
This opinion was issued in 1966. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The county library statutes have been renumbered (SDC to SDCL Title 14, Libraries). The county building mill levy statutes are now in modern SDCL Title 7. Modern referendum rules under SDCL 7-25 differ in detail from the 1966-era SDC 12.2302 framework. A county considering a library acquisition today should consult the current code, current Department of Education library regulations, and applicable bonding statutes.
What the opinion meant at the time
For Hyde County, the answer was practical but inconvenient. The 1.5 mill levy shortcut was off the table. The commissioners had to either fit the purchase into their existing budget or put it on the ballot. Either path could work, but each carried its own headaches: budget pressure on the first, political risk on the second.
For other counties considering library facility upgrades in 1966, the opinion was a useful map of the statutory choices. Mill levies are limited to their specific authorized purposes; a court would not allow a library expenditure to be hidden inside a courthouse levy. Regular county funds and bond issuances were the right vehicles for library capital projects, with the referendum requirement kicking in when the cost exceeded annual revenue.
For library trustees, the opinion confirmed that SDC 12.2503 gave the trustees the duty to provide "suitable accommodations," which translated into authority to evaluate facilities and recommend improvements to the commissioners. The trustees could not unilaterally commit county money, but they could drive the procurement conversation.
For voters, the opinion meant a real role in big library capital decisions. Anything larger than what the current year's regular budget could absorb required their assent, with a majority of those voting controlling the outcome.
Common questions
Q: Why was a library not a "courthouse, office, or jail building" within SDC 12.2303?
A: The statutory list was specific to government-administrative functions: the courthouse where the courts and county offices sat, jails for prisoners, and the offices needed to run county government. A library, although a public building, served a different statutory purpose and had its own funding mechanisms under SDC 12.25.
Q: Could the county have rented the building instead of buying it?
A: The opinion did not address a lease scenario. A lease would have implicated different statutes (general municipal/county lease authority) and might have avoided the referendum requirement if the annual rent fit within current revenue. Whether a lease was a practical option depended on the property owner's willingness and the county's long-term plans.
Q: Could the county have used bonded indebtedness to fund the purchase?
A: The opinion did not discuss bonding. Bonds are a separate authority under different statutes, with their own referendum and procedural requirements. For a library capital project too large for the annual budget, bonds were a common alternative to a single-year referendum-approved expenditure.
Q: Did the existing one-half mill library maintenance levy under SDC 12.2304 help at all?
A: The opinion noted that levy in passing. It funded "maintenance and extension," not capital acquisition. So it could support the library's ongoing operations but not the purchase of a building.
Q: What counted as "annual revenue of the county for the current year"?
A: The opinion did not parse the phrase. In context, it likely meant the county's regular operating revenue (property taxes, fees, intergovernmental transfers) available to the general fund in the current fiscal year, net of obligations already committed. A close legal call on the phrase would have required reading SDC 12.2302 against other budget-process statutes.
Q: Did the referendum have to be at a general election or could it be a special election?
A: The opinion did not specify. Under standard South Dakota practice for county referenda of the era, special elections were authorized for time-sensitive questions, with general elections used for routine ones. The choice would have depended on the urgency of the library project and the county's election calendar.
Background and statutory framework
South Dakota's county-library statutes (SDC chapter 12.25) created a tiered structure: county commissioners established the library, appointed library trustees, and provided funding through a one-half mill maintenance levy under SDC 12.2304. The trustees ran the library day to day under SDC 12.2503, including the duty to provide accommodations.
For capital projects beyond what the maintenance levy could fund, the system pushed back to the commissioners and, beyond a certain expenditure size, to the voters. SDC 12.2302's referendum trigger was the key voter-protection mechanism. The legislature wanted big library capital decisions to have explicit voter buy-in.
The courthouse-and-public-buildings levy in SDC 12.2303 was a separate, limited-purpose authority. Counties used it for courthouse projects, county office construction or renovation, and jail facilities. The 1963 amendment (Chapter 49) had expanded the list of permissible uses, but not to include libraries. The AG read the expansion strictly, consistent with the canon that doubtful county powers are resolved against the county.
The 1963-64 AGR 120 opinion the AG relied on was important because it had already addressed the broader question of whether commissioners could buy existing buildings for county purposes. That opinion had said yes for legitimate county purposes. The 1966 opinion extended the same logic to libraries, while emphasizing that the funding mechanism had to be the appropriate one for library expenditures.
The opinion did not address some adjacent questions: whether the Library Board had standing to challenge a commissioner refusal to buy a building it considered adequate; whether the county could partner with a municipality or school district to share library facility costs; or how to handle a library facility that served multiple counties under SDC 12.25's regional-library provisions.
Citations and references
Statutes:
- SDC 12.25 (county free library framework)
- SDC 12.2303, as amended by Chapter 49 of the 1963 Session Laws (1.5 mill levy for courthouse/office/jail)
- SDC 12.2503 (library trustees' duty to provide accommodations)
- SDC 12.2304 (county library maintenance levy, up to one-half mill)
- SDC 1960 Supp. 12.2302 (commissioners' authority and referendum requirement)
Cases:
- Pomerane v. Washabaugh County, 61 S.D. 422, 249 N.W. 734
- State ex rel Bell v. Board of County Commissioners, 68 S.D. 237, 300 N.W. 832
- State ex rel Jacobson v. Hansen, 75 S.D. 476, 68 N.W.2d 480
Prior AG opinions:
- 1963-64 AGR 120 (commissioners may expend funds to acquire existing buildings for county purposes; doubtful powers construed against the county)
Treatises:
- 20 CJS 852 (notes 30 and 31) (county powers strictly construed)
- 37 Am Jur 725 (notes 16 and 17) (same)
Source
Original opinion text
Libraries. Purchase of existing privately owned building for use as a library.
You have requested an official opinion relative to the following factual situation:
"The Hyde County Library Board has notified the County Commissioners that in its opinion the existing library facilities of the county library maintained in pursuance to SDC 12.25 and acts amendatory thereof is inadequate for library purposes. The board may purchase an existing privately owned building which it has determined will be adequate as a library. The board has requested that the commissioners levy a tax in the amount of one and one-half mills as provided by SDC 1960 Supp. 12.2303, as amended in Ch. 49 of the Session Laws of 1963, which levy would more than pay the costs of purchasing such building to be used as such library."
You have asked the following questions in regard to such factual situation:
"1. Can the County Commissioners make a one and one-half mills levy in pursuance to SDC 1960 Supp. 12.2303, as amended by Ch. 49 of the Session Laws of 1963 for the purpose of purchasing such existing privately owned building to be used for library purposes?
"2. If such levy cannot be made, can the Commissioners purchase such building for library purposes?
"3. If such purchase can be made, what procedure must be followed to make a valid purchase of such building?"
It is fundamental that a County, being an artificial being, and a creature of statute, has no inherent powers but may exercise only such powers as have been expressly conferred upon it, or that can be necessarily inferred from its express powers.
Pomerane v Washabaugh County, 61 SD 422, 249 NW 734:
State ex rel Bell v Board of County Commissioners, 68 SD 237, 300 NW 832; State ex rel Jacobson v Hansen, 75 SD 476, 68 NW(2) 480.
It is also fundamental, as I stated in my opinion reported in 1963-64 AGR 120, that in case there is a reasonable doubt as to the existence of a particular power of the governing board of a county, the right to exercise such power must be resolved against the board. (See also 20 CJS 852 (notes 30 and 31) and 37 Am Jur 725 (notes 16 and 17.)
SDC 1960 Supp. 12.2303 as amended by Ch. 49 of the Session Laws of 1963 authorizes a tax levy not to exceed one and one-half mills for the following purposes:
of acquiring a site, constructing, renovating, improving, remodeling, altering, adding to or repairing a courthouse, office, or jail building...
Certainly, the acquisition of an existing building for library purposes cannot qualify within the terms "acquiring a site, the construction, remodeling, altering, adding to or repairing" of public buildings. Nor can such acquisition qualify as being a "courthouse, office, or jail building."
I must answer question No. 1 "No". Such tax cannot be levied for the reason that the purpose as above described does not come within the express grant of authority, nor can it be implied from such express grants of power.
SDC 12.25 and acts amendatory thereof authorizes the establishment of free libraries under the control of the counties, which library is managed under the jurisdiction of county library trustees appointed by the commissioners. Such trustees by SDC 12.2503 have the duty "to provide suitable accommodations for the free public library and for the accommodations of the public in using the same." Such trustees (SDC 1960 Supp. 12.2304) must estimate the expenses for the following year for the "maintenance and extension of the county free public library for the ensuing year" and certify such to the county commissioners. The county commissioners have the duty to levy a tax, not exceeding one-half of one mill, the proceeds of which shall be used for maintenance and extension of such library.
It is apparent that the furnishing of such libraries to its citizens is a county purpose. It is also apparent that if any facilities are necessary for library purposes that such monies must come from the county funds by levy of taxes made by the county commissioners.
In my opinion reported in 1963-64 AGR 120, and opinions of my predecessors therein cited, it has been held that the commissioners may expend public funds to acquire existing buildings to be used for "county purposes".
In answer to question No. 2, I must answer such "Yes". The county commissioners may authorize the expenditure of county funds for the purchase of an existing privately owned building to be used as the county free library.
SDC 1960 Supp. 12.2302 provides the authority for the county commissioners to provide for the purchase of such building, but such statutory authorization provides that no expenditure for such purpose "greater than can be paid out of the annual revenue of the county for the current year, shall be made unless the question of such expenditure shall have first been submitted to a vote of the qualified electors of such county and shall have been approved by a majority of the votes so cast; and the board shall determine the amount and rate of taxes to be submitted to a vote for such purposes."
This statutory limitation must guide you in answering question No. 3. If there are sufficient county funds available, and excluding the levy provided in SDC 1960 Supp. 12.2303, as amended by Ch. 49 of the Session Laws of 1963, the county commissioners may place such funds necessary for such purpose in the regular county budget for the ensuing year and purchase such building without submitting such to the vote of the electorate. On the other hand, if there are not sufficient funds, or the commissioners are unwilling to expend such amounts from existing county funds, it must determine the amount and rate of taxes necessary and submit such purchase to the vote of the electorate.