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?

Plain-English summary

The Brookings County Historical Association, a nonprofit corporation, had acquired a site and proposed to build a building to house its collection of historical objects. It intended to fund the construction through local subscription. But the Association also expected to ask the Brookings County Commissioners to make a tax levy under either Chapter 28 of the 1966 Session Laws or SDC 1960 Supp. 12.2310 to help with construction, equipment, or maintenance costs.

The Brookings County State's Attorney asked the AG two questions:

1. Could the county use its levy funds to help with construction, equipment, or operating expenses (salary of a caretaker, heat, light, etc.) of a privately owned museum?

2. Could the county pay the full maintenance and operating costs if the Association leased the museum to the county?

The AG's framework was Dillon's Rule applied to counties. He cited Bailey v. Lawrence County and Town of Dell Rapids v. Erving for the proposition that counties are involuntary political subdivisions "vested with only such powers as are expressly granted, or which may be reasonably implied from the powers expressly granted." The AG then worked through each levy authority and what it permitted.

SDC 1960 Supp. 12.2310 (5-cent-per-inhabitant budget)

The statute authorized county commissioners, "at its discretion, to acquire without cost to the county, historical sites, and objects of historical interest and may provide for the preservation, display and maintenance of such objects." Display could be in the courthouse or in a separate room. The annual budget was capped at 5 cents per inhabitant per the last official census.

The AG concluded:

• No funds could be spent for construction of a privately owned museum.
• No funds could be spent for maintenance and supplies of a privately owned museum that did not house county-owned objects.
• Funds could be spent on maintenance of county-owned historical objects displayed in a privately owned museum, in proportion to the county's ownership share of the displayed collection.

That last point was a partial victory for the association: if the county acquired historical objects (without cost) and the association displayed them, the county could pay some of the maintenance burden, up to the 5-cent-per-inhabitant cap.

Chapter 28 of the 1966 Session Laws (one-half mill levy)

The 1966 chapter authorized counties to levy up to one-half of one mill, with proceeds usable "only for the purchase, erection, renovation, improvement, remodeling, alteration, addition to and repairing of county historical museums."

The AG concluded:

• The "County Historical Museums" referred to had to be either owned outright by the county or under its control. Chapter 28 sat in SDC 12.23 ("County Buildings and Monuments"), and the chapter as a whole dealt with property owned by the county (with limited exception for joint county-municipal construction under SDC 12.2304). So funds from this levy could not flow to a privately owned museum.
• The funds also could not be used for ongoing maintenance, even of a county-owned museum, because the statute listed specific authorized uses (purchase, erection, renovation, improvement, remodeling, alteration, addition, repairing) and maintenance was not on the list. The AG relied on State ex rel Jacobsen v. Hansen, where the court held that bond authority for "erection, equipment and maintenance" of a county hospital did not extend to purchase of an already-constructed hospital, because the legislature specifically defined the purposes.

Leasing the museum to the county

The second question reframed the analysis. If the Association leased the museum to the county, the building would be under county control, and the museum could be a "county historical museum" in a functional sense.

The AG analyzed county lease authority by reference to prior AG opinions:

• 1911-12 AGR 574 (county may rent office space for State's Attorney and County Judge when courthouse space unavailable)
• 1919-20 AGR (county may rent office space for County Agent)
• 1919-20 AGR 106 (county may lease building for county fair)
• 1919-20 AGR 216 (county may rent polling places)
• 1955-56 AGR 372 (county may rent road equipment)
• 1955-56 AGR 27 (county may lease real estate for county fair)
• 1957-58 AGR 52 (county may rent office space for County Judge)
• 1957-58 AGR 98 (county may rent photostatic copy equipment)

The common thread: leasing is permitted when a lawful county purpose is involved and the commissioners find the lease beneficial to the county.

The AG concluded that housing historical objects is a lawful county purpose, so a county lease of an Association-owned museum was legally permissible. The 5-cent-per-inhabitant budget under SDC 12.2310 could then be used to maintain the leased building (because maintaining a county historical museum is what 12.2310 was for). But the Chapter 28 of 1966 levy proceeds still could not be used for maintenance, because that statute's authorized uses did not include operating expenses.

Currency note

This opinion was issued in 1968 (approximate, based on the underlying 1966 statute and the contemporaneous Brookings County context). 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. South Dakota's modern county and museum funding statutes are in SDCL Title 7 and Title 1 (cultural and historical preservation); levy caps, authorized purposes, and procedural requirements may have changed since 1968.

What the opinion meant at the time

For the Brookings County Historical Association, the opinion was a mixed result. The Association could not get direct county contribution to construction or general operating support of its privately owned museum. But two paths remained open: (1) the county could acquire historical objects, donate them to display in the Association's museum, and pay a proportional share of maintenance under the 5-cent-per-inhabitant budget; or (2) the Association could lease the museum to the county, making it a county historical museum, with the 5-cent-per-inhabitant budget supporting maintenance.

For the Brookings County Commissioners, the opinion gave clear constraints. They could not pass the hat for a private museum from either levy authority. But they had real options for supporting historical preservation, just within the statutory boundaries.

For other county historical associations across South Dakota, the opinion was a precedent that would have shaped funding arrangements for years. Private historical societies could get partial county support, but only by structures that linked the support to county-owned objects or to county-controlled museum buildings.

For the South Dakota Legislature, the opinion implicitly invited reform if a different policy was wanted. The legislature had drawn lines (Chapter 28 of 1966 for capital expenditures on county-owned museums; SDC 12.2310 for display of county-owned objects up to 5 cents per inhabitant; nothing for direct support of privately owned museums). The AG was applying the lines as written. If the legislature wanted private museums to receive county money, it would have to say so.

For the Dillon's Rule case law generally, the opinion is a useful illustration of how AG opinions reinforce the rule. The AG did not stretch statutory purposes or imply unstated authorities. He read the statutes precisely and applied them to the facts.

Common questions

Q: Is this opinion still good law?
A: Possibly in part. The cited statutes (SDC 1960 Supp. 12.2310, Chapter 28 of 1966) have been recodified, and the modern South Dakota Codified Laws Title 7 (Counties) and Title 1 (cultural preservation) have their own provisions. The fundamental Dillon's Rule analysis still applies, but specific levy caps, authorized purposes, and county-historical-society funding paths may have changed substantially since 1968.

Q: What was the relationship between SDC 12.2310 and Chapter 28 of 1966?
A: Two separate authorities with different scopes. SDC 12.2310 was the smaller, older authority (5 cents per inhabitant, focused on display and preservation of historical objects). Chapter 28 of 1966 was the newer, larger capital authority (one-half mill, focused on acquiring, erecting, and improving county-owned museum buildings). The two existed side by side, with different purposes. Neither extended to ongoing maintenance of a privately owned museum.

Q: Why did the AG read Chapter 28 of 1966 so narrowly?
A: The statute's list of authorized purposes was specific: purchase, erection, renovation, improvement, remodeling, alteration, addition to, and repairing. Maintenance and operating costs were not on the list. The AG followed State ex rel Jacobsen v. Hansen, which had held that a similar specific list (erection, equipment, maintenance of a county hospital) did not allow extending to purchase of an existing hospital. Specific lists are read as exclusive.

Q: Could a county donate county-owned historical objects to a private museum?
A: The opinion does not directly address that. It does say the 5-cent-per-inhabitant budget can be used to maintain county-owned objects displayed in a private museum, which implies the objects can be placed there. Whether a full donation (transferring title) is permitted is a separate question that would turn on county property-disposal statutes.

Q: What about counties without historical associations? Could the county build its own museum?
A: Yes, under Chapter 28 of 1966, if the county levied the one-half mill and used the proceeds for purchase, erection, renovation, etc. The 5-cent-per-inhabitant budget under SDC 12.2310 would then maintain the county-built museum. This was the cleanest path for counties without an existing private museum.

Background and statutory framework

The opinion is a comprehensive map of 1968-era South Dakota county museum funding authority. Three legal frameworks intersected:

1. Dillon's Rule for counties: counties have only the powers expressly granted by statute or fairly implied. The opinion's case-law string cite (Bailey, Dell Rapids, Davis, Meek, Pierson, Pomerane, Poage, Bell, Jacobsen) repeatedly reinforces this.

2. Specific statutory authorities for museums and historical preservation: SDC 12.2310 (display and maintenance, 5 cents per inhabitant) and Chapter 28 of 1966 (capital costs of county-owned museums, one-half mill). Each had specific scope and specific dollar caps.

3. County lease authority: prior AG opinions had established that counties can lease property when a lawful county purpose is involved. This permitted the Association-to-County lease structure for the museum.

The interaction of (2) and (3) gave the Association a workable path: lease the museum to the county; county uses 5-cent-per-inhabitant budget for maintenance; Chapter 28 one-half mill provides capital funds if the county wants to improve the leased building.

The opinion is unusually detailed for the era and shows the AG taking time to map all the available paths and constraints. That mattered because the result was a partial yes / partial no, and the State's Attorney needed clear guidance on what the commissioners could and could not do.

Citations and references

Statutes (as cited in the opinion):
- SDC 1960 Supp. 12.2310 (county authority for historical sites and objects; 5 cents per inhabitant)
- Chapter 28, Session Laws of 1966 (one-half mill levy for county historical museums)
- SDC 12.2304 (joint county-municipal construction)

Cases (as cited in the opinion):
- Bailey v. Lawrence County, 5 SD 393, 59 NW 219
- Town of Dell Rapids v. Erving, 7 SD 310, 64 NW 149
- State v. Davis, 11 SD 111, 75 NW 897
- Meek v. Meade County, 12 SD 162, 80 NW 182
- Pierson v. Johnson, 59 SD 163, 238 NW 644
- Pomerane v. Washabaugh County, 61 SD 422, 249 NW 734
- South Dakota Employee Protection Association v. Poage, 65 SD 198, 272 NW 806
- State ex rel Bell v. Board of County Commissioners, 68 SD 237, 300 NW 832
- State ex rel Jacobsen v. Hansen, 75 SD 476, 68 NW 2d 480
- Schomer v. Scott, 65 SD 353, 274 NW 556
- Williams v. Book, 75 SD 173, NW 2d 290

Prior AG opinions:
- 1949-50 AGR 213 (joint county-municipal construction)
- 1911-12 AGR 574 (office space rental for State's Attorney and County Judge)
- 1919-20 AGR (County Agent office space)
- 1919-20 AGR 106 (county fair building lease)
- 1919-20 AGR 216 (polling place rental)
- 1955-56 AGR 372 (road equipment rental)
- 1955-56 AGR 27 (county fair real estate lease)
- 1957-58 AGR 52 (County Judge office space)
- 1957-58 AGR 98 (photostatic copy equipment rental)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1737

Original opinion text

County Commissioners. County Historical Museums-Construction and Maintenance with County Funds.

You have requested an official opinion based upon the following factual situation:

"The Brookings County Historical Association, a non-profit corporation, has acquired a site and is proposing to build a building to house a collection of historical objects. It is their intention to build the building by local subscription. The County Com missioners anticipate that they will be requested to make a levy under either Ch. 28, Session Laws of 1966, or 12.2310 1960 Supp., for the purpose of assisting in the cost of building, equipping the same and/or providing maintenance."

Based upon this factual situation, you have asked the following questions:

"1. Can Brookings County use funds derived from a levy made under these statutes or any other statutes to assist in the cost of constructing such a building, equipping the same or to pay any of the expense of maintenance, such as salary of a caretaker, heat, light and general operating expenses, as long as the building IS owned and operated by the Brookings County Historical Association?

"2. Could Brookings County use funds derived from a levy made under these statutes or any other statutes to assume the entire cost of maintenance and operation if the Historical Association were to lease the facility to the County?"

You have advised the County Commissioners that you do not believe that county funds may be used either under SDC 1960 Supp. 12.2310 or Ch. 28, Session Laws of 1966, or any other statute to contribute to the cost of erecting a building or equipping the same so long as it is and will be owned by the Historical Association.

As our Supreme Court said in Bailey v Lawrence County, 5 SD 393, 59 NW 219, 49 AM. St. Rep. 881:

"Counties are involuntary political subdivisions of the state, created for governmental purposes and are organized without regard to the consent or dissent of individuals. . . "

A county is vested with only such powers as are expressly granted, or which may be reasonably implied from the powers expressly granted.

Town of Dell Rapids v. Erving, 7 SD 310, 64 NW 149, 29 LIRA 222;

State v. Davis, 11 SD 111, 75 NW 897, 74 Am. St. Rep. 780;

Meek v. Meade County, 12 SD 162 80 NW 182;

Pierson v. Johnson, 59 SD 163, 238 NW 644;

Pomerane v. Washabaugh County, 61 SD 422, 249 NW 734;

South Dakota Employee Protection Association v. Poage, 65 SD 198, 272 NW 806;

State ex rel' Bell v. Board of County Commissioners, 68 SD 237, 300 NW

832;

State ex rel Jacobsen v. Hansen, 75 SD 476, 68 NW 2d 480.

As Judge Corson stated in Town of Dell Rapids v. Erving, supra, in discussing involuntary quasi corporations such as counties:

"They are not bodies corporate and politic with the general power of corporation but are mere political subdivisions of the state, having the power expressly granted to them, and such implied powers as are necessary to enable them to perform their duties, and no more. They are denominated in the books, and known to the law, as quasi corporations rather than as corporations proper. They possess some corporate functions and attributes, but are primarily political subdivisions,—agencies in the administration of civil governments,—and their corporate functions are granted to enable them more readily to perform their public duties."

The Legislature exercises supreme power over the counties except insofar as the Legislature is restricted by the Constitution, by express terms therein or by necessary implication.

Schomer v. Scott, 65 SD 353, 274 NW 556:

Williams v. Book, 75 SD 173, NW 2d 290.

An examination of SDC 1960 Supp. 12.2310 will show that the Legislature has authorized the County Commissioners at its discretion, to acquire without cost to the county, historical sites, and objects of historical interest and may provide for the preservation, display and maintenance of such objects and writing either in the courthouse or elsewhere in said county in a room or rooms for such display. The County Commissioners are further limited, to budgeting not more than five cents per inhabitant of said county, as determined by the last official census, for such preservation and display of such historical objects.

Certainly, there can be no question that under this statute no public funds could be expended for the purpose of constructing the historical museum, or provide maintenance and supply expenses of such museum. It should be noted that if the Board of County Commissioners does obtain certain objects of historical interest, that such statute would authorize such to be displayed and preserved in such private museum, and within the limitation, expend such budgeted funds for the necessary maintenance.

Chapter 28, Laws of 1966, provides that the County Commissioners may levy annual tax not to exceed % of one mill on a dollar, but the moneys raised by such tax may be used only "for the purchase, erection, renovation, improvement, remodeling, alteration, addition to and repairing of county historical museums…"

Chapter 28 was placed by the Legislature in SDC 12.23. An examination of such chapter and the amendments thereto will disclose that it is entitled, "COUNTY BUILDINGS AND MONUMENTS." An examination of the individual section comprising such chapter will disclose that the monuments and buildings therein authorized are property owned by the county, with the exception of the construction permitted jointly by the county and the municipal corporation which is the county seat of such county as provided in SDC 12.2304.

It is my opinion that the "County Historical Museum" referred to in Chapter 28, Laws of 1966 must be limited to County Historical Museums either owned outright by the county or under its control. (See the opinion of my predecessor reported in 1949-50 AGR 213 in regard to a jointly constructed building). Certainly, your advice to your county board in regard to Question No. 1, in most of its aspects was proper. The answer to such question is "NO". However, this answer must be tempered with the realization that the moneys budgeted in pursuance to SDC 1960 Supp. 12.2310 may be used for the expenses of "maintenance" of any county owned historical objects on display in such privately owned museum. The extent and purposes of such "maintenance" must be left to the discretion of the county commissioners. Whether such should extend to furnishing the salary for the caretaker, and paying the costs of heat, light and general operating expenses of the privately owned museum is a question that only the commissioners can answer. It is my opinion the extent to which such budgeted item may be so expended would depend almost entirely upon the number of county owned historical objects therein on display. If there are no county owned historical objects therein housed, none of this budgeted item could properly be furnished to such museum. If the entire collection therein housed was county owned, the commissioners in their honestly exercised discretion could furnish all of the maintenance necessary. They should consider the extent of the county owned historical objects (received by the county without cost) in such privately displayed collection, and within their own honest and fair discretion determine the extent, if any, to which the county is to furnish maintenance for the "county owned" historical objects on display in such privately owned museum.

Question No. 2 involves a more difficult problem. It at first involves the right of the county to lease property for a county historical museum, in which case such property would be under its control, and the conclusion reached might be different from the conclusion reached when such museum was under the control of a private non-profit corporation.

I have never been called upon to render an opinion as to the validity of a county leasing privately owned property for county use, although I have rendered several opinions relating to the propriety of leasing publicly owned property to private entities. My predecessors in office, have been faced with the question of the leasing of property by counties, and they have expressed the opinion that the county commissioners may rent or lease property for a variety of purposes. See the following opinions:

1911-12 AGR 574—When space in the Courthouse is unavailable, the Commissioners may rent office space for the State's Attorney and the County Judge;

1919-20 AGR rent office space for the County Agen.t; 1919-20 AGR 106—May lease building to be used for county fair purposes;

1919-20 AGR 216—May rent polling places for an election;

1955-56 AGR 372—May rent road equipment to construct and maintain county roads;

1955-56 AGR 27—May lease real estate to be used for county fair;

1957-58 AGR 52—May rent office space for County Judge when such space is unavailable in the Courthouse;

1957-58 AGR 98—May rent photostatic copy equipment.

Upon analysis these decisions reveal that the right to lease such property is based upon the fact that a lawful county purpose was involved, in which case the county commissioners, if such seems to be to the advantage of the county and its citizens, may legally enter into a lease agreement in order to satisfy such lawful county purpose.

The housing of objects of historical interest is a lawful county purpose. I must find that there is nothing illegal for the commissioners to lease a building to house such county historical objects, if they find that it is for the best interest of the county, and its inhabitants to so act.

It is also my opinion that the five cents per inhabitant item that may be budgeted in pursuance to SDC 1960 Supp. 12.2310 may be used to maintain such building leased by the county as the county historical museum. Such moneys may be used to "preserve, display, and maintain" such historical objects. This of necessity must include the maintenance of the building in which such historical objects are placed upon public display.

Chapter 28, Laws of 1966 authorizes a levy of not to exceed % of one mill "to provide for the acquisition of sites, purchase, erection, renovation, improvement, remodeling, alteration, addition to and repairing of county historical museums." Can the proceeds of such annual levy be used to maintain the county historical museums?

Our Supreme Court in State ex rel Jacobsen v. Hansen, 75 SD 476, 68 NW 2d 480 was met with a similar problem in determining the extent to which a county could go under a relatively similar statute. Said our Court:

"The statute under consideration grants power to issue bonds for certain specified purposes. It grants power as we have stated to issue for the 'erection, equipment and maintenance' of a county hospital. The legislature has confined the authority conferred to a specific and clearly indicated purpose or purposes and defendant board has no authority to issue bonds and exceed the proceeds thereof for the accomplishment of a different purpose outside and beyond such limitations, namely, the purchase of a hospital already constructed."

Our Court has pointed out that the grants of power coming from the Legislature to the county cannot be extended beyond the clear import of the power granted. I must hold that maintenance of such county historical museum does not come within the clearly indicated purposes for which such tax could be levied and the proceeds thereby collected could not be used to accornplish a different purpose outside and beyond the limitations provided by the Legislature. Clearly the funds raised by taxation in pursuance to Chapter 28, Laws of 1966 cannot be used to rent or maintain such county historical museum.

I believe that I have answered Question No. 2, but to reiterate, while I find that the lease of such museum is proper, only the amount of moneys budgeted in pursuance to SDC 1960 Supp. 12.2310 could be used to maintain such leased historical museum, and no funds derived by the levy of the tax in pursuance to Chapter 28, Laws of 1966 could be used for such purpose.