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?
Plain-English summary
Sanborn County faced a real squeeze. A municipality in the county had been ordered by a court to build a municipal sewer system. The voters approved it and approved quarterly sewer charges on every resident to pay for it. As part of the same package, the town declared the old outhouses and septic tanks public nuisances. That meant low-income residents who still relied on those facilities now had two compliance problems at once: they had to connect to the new sewer (which meant paying to install indoor plumbing), and they had to pay the quarterly sewer rent. Either failure was enough to make their home a public nuisance, possibly costing them their housing.
Two groups of residents were in trouble. The first group qualified for state welfare. The second did not (either they did not meet the state's program rules or the state had denied them), but they still could not afford the plumbing or the sewer bill. The State's Attorney asked the AG whether the county could use its county poor-relief budget to cover indoor plumbing installation and the ongoing sewer charges for both groups.
The AG read SDC 1960 Supp. 50.0101 as imposing a broad statutory duty on the county to "relieve and support all poor and indigent persons" with a county settlement when they stood in need. The South Dakota Supreme Court in Sioux Falls Paint & Glass Co. v. Knutson had previously read that obligation as a duty to provide "maintenance or allowance for necessaries," and an earlier AG opinion had treated shelter (paying necessary house rent for an indigent) as one of those necessaries because of the South Dakota climate.
The AG built on those two prior authorities. If shelter was a necessary, and if losing your only shelter to a public nuisance declaration was the consequence of not getting the indoor plumbing installed, then installing the plumbing was a permissible county expense to preserve the shelter. Paying the ongoing sewer charges followed the same logic. So the answer to question one was yes: the county commissioners could, subject to their budget, install the indoor sanitary facilities in indigents' homes and pay the quarterly municipal sewer charges.
On the second question, about residents not on state welfare, the AG split it into two subgroups. People in this group whom the commissioners independently found to be poor or indigent under the county's own assessment got the same answer as group one: yes, the county could fund both the plumbing and the sewer rent. The county welfare duty was statutorily distinct from the state welfare programs; state-program denial was relevant evidence but not controlling.
For the third subgroup, people the commissioners did not find indigent at the moment but who would become indigent if forced to pay the plumbing cost out of pocket, the AG pointed to SDC 50.0205. That provision gave commissioners discretionary authority to make annual allowances to certain potential county charges who were of mature years and sound mind and who would probably be benefited by the assistance, capped at what their maintenance would cost in the ordinary mode. If the commissioners found those conditions met, the county could fund the plumbing installation and pay the sewer rent for that subgroup too.
Currency note
This opinion was issued in 1968. 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 SDC sections cited in this opinion have been recodified into the current SDCL. Modern South Dakota poor-relief and indigent-assistance authority is found primarily in SDCL Title 28 (Public Welfare and Assistance), and county-level relief authority has been substantially restructured since 1968 as federal and state assistance programs (Medicaid, SNAP, LIHEAP) have taken over many of the functions the county once carried alone. Counties evaluating analogous spending today should consult current SDCL provisions and coordinate with the South Dakota Department of Social Services and federal programs.
What the opinion meant at the time
For county commissioners staring at a bill from indigent residents who could not afford the new sewer hookup, the opinion confirmed they had legal authority to pay. The 1968 commissioner did not have to decide between letting an indigent's home be condemned as a nuisance and finding a way around a statute that did not literally say "plumbing." The general duty to support the poor reached far enough to cover what was needed to keep the person's shelter habitable and legal.
For municipal sewer administrators, the opinion clarified that the county could become a paying party for quarterly sewer accounts on behalf of indigent residents. The town did not have to write off bad debt or pursue collection against people who could not pay; the county budget could absorb the charge as part of the welfare line.
For people not on state welfare but still genuinely poor, the opinion confirmed that they were not cut off from county assistance. The commissioners had independent authority to find them indigent and provide the necessary support. The state program denial mattered as a fact but did not override the county's own determination.
For commissioners considering aid to borderline cases, those people who were not yet on county relief but who would slide into it if forced to pay the cost themselves, SDC 50.0205 gave a separate discretionary tool. The conditions (mature years, sound mind, probable benefit, cost not exceeding the ordinary mode of maintenance) had to be found explicitly, but where they were, the commissioner could authorize the plumbing installation and the sewer rent as a preventive payment.
For state's attorneys and county auditors processing the warrants, the opinion provided the statutory citation chain to defend such payments against an audit objection: SDC 50.0101 for the basic duty, the Sioux Falls Paint & Glass case and the AGR opinions for "necessaries" reading, SDC 50.0205 for the borderline-case discretionary authority.
Common questions
Q: Could the county refuse to pay and let the home be condemned?
A: The opinion did not require the county to pay every indigent's plumbing bill; it found that the county had authority to do so. Whether to act in any particular case was within the commissioners' discretion, subject to budgetary limits and their assessment of indigence.
Q: Did the indigent have to qualify for state welfare first?
A: No. The county poor-relief duty under SDC 50.0101 was statutorily separate from state welfare. The commissioners could make their own determination of indigence, and state-program denial did not foreclose county aid.
Q: How long could the county keep paying the sewer rent?
A: The opinion did not set a time limit. It treated the ongoing sewer charge as part of "maintenance or allowance for necessaries." So long as the person remained indigent and the commissioners continued to fund them, the payments could continue. Budget appropriations were the practical ceiling.
Q: What if the indigent owned the home? Did the county get a lien or interest in it?
A: The 1968 opinion did not address liens directly, but it noted a prior AGR opinion (1931-32 AGR 588) that allowed county commissioners to take conveyances of homes from indigents in exchange for lifetime support. That is a different transaction from a plumbing installation, and the 1968 opinion did not require the county to take any property interest in exchange for the work.
Q: Could the county install plumbing in a home the indigent did not own (a rental home)?
A: The opinion did not directly answer that question. The factual situation appeared to involve homes that the indigents lived in, and the AG focused on the connection between the plumbing and avoiding nuisance condemnation. Plumbing in a rental would have raised separate questions about landlord obligations and benefit accruing to the landlord.
Q: What about people the commissioners did not currently classify as indigent but who would become indigent if they had to pay the plumbing bill out of pocket?
A: SDC 50.0205 covered them. If they were of mature years and sound mind, would probably be benefited by the help, and the cost would not exceed what their maintenance would have cost in the ordinary mode, the commissioners had discretion to fund the plumbing and the sewer rent for them too.
Q: Did the budget have to specifically appropriate for plumbing installations?
A: The opinion noted that all payments were "subject of course to the budgetary limitations." Commissioners would have built the costs into the poor-relief budget line. A finding of an unforeseen emergency could potentially have supported an emergency appropriation if the budget had been set before the sewer issue arose.
Q: What was the public-nuisance trigger here?
A: The municipality, as part of authorizing the sewer system, declared outhouses and septic tanks public nuisances. Once that ordinance was in force, an indigent's outhouse violated the nuisance code, exposing the indigent to abatement (and the loss of usable shelter) unless the outhouse was replaced with indoor plumbing connected to the new municipal sewer.
Background and statutory framework
South Dakota in the 1960s placed the primary duty for indigent relief on counties. SDC 1960 Supp. 50.0101 imposed an unqualified statutory duty on every county to "relieve and support all poor and indigent persons having a lawful poor relief settlement therein whenever they shall stand in need thereof." That language was old, broad, and historically litigated.
The South Dakota Supreme Court in Sioux Falls Paint & Glass Co. v. Knutson, 66 SD 261, 281 NW 201, had read the statute as authorizing "maintenance or allowance for necessaries," including hospitalization, medical care, education, visitation, and supervision. The Court drew the line at activities outside that necessaries framework, citing earlier opinions that disapproved using county relief funds for premiums on a workmen's compensation policy for federal work-relief workers.
A 1931-32 AGR opinion treated necessary house rent as covered by the county's duty because shelter was as essential to survival in South Dakota's climate as food was. That precedent was load-bearing for the 1968 plumbing question because it linked physical-property expenditures to the necessaries category when those expenditures kept the indigent in habitable shelter.
SDC 50.0205 added a discretionary tool. It authorized county commissioners to make annual allowances to poor persons who might become county charges, subject to four findings: the person was of mature years and sound mind, would probably be benefited, and the allowance would not exceed the cost of maintenance in the ordinary mode. That discretionary track covered borderline cases who were not currently on county relief but who needed preventive help.
The 1968 opinion synthesized those statutes and authorities. It read the duty to relieve broadly enough to cover indoor plumbing installations and sewer charges, both as immediate "necessaries" for current county indigents and, through SDC 50.0205, as preventive aid for borderline cases who might otherwise slide into indigence.
Citations and references
Statutes:
- SDC 1960 Supp. 50.0101 (county duty to relieve and support poor and indigent persons)
- SDC 50.0205 (county discretion to allow annual payments to poor persons of mature years and sound mind)
Cases:
- Sioux Falls Paint & Glass Co. v. Knutson, 66 SD 261, 281 NW 201
- South Dakota Employers Protective Ass'n v. Poage (referenced in Sioux Falls Paint & Glass)
Prior AG opinions referenced:
- 1931-32 AGR 692 (rent for indigent housing as a necessary)
- 1931-32 AGR 588 (county taking conveyance of indigent's home in exchange for lifetime support)
Source
Original opinion text
Poor Relief. Poor Relief may include costs of modernizing an indigent's home to escape being declared a public nuisance and the payment of periodic municipal sewer charges.
You have requested my official opinion based upon the following factual situation:
"Municipality 'X' in Sanborn County, was required by Court order to construct a municipal sewerage disposal system. At an election the electorate approved the construction of such sewage disposal system, and authorized the city to levy a quarterly sewer rent upon all of its citizens to defray the costs of such construction. At the same time outhouses and septic tanks for the disposal of human and other wastes were declared to be public nuisances."
Based upon this factual system you have asked the following question:
"1. May the County Commissioners in providing relief for the indigent poor, under SDC 50.0101, install indoor sanitary facilities in the homes of such indigent poor and pay the quarterly sewer rent to the municipality for such indigents?
"2. May the County Commissioners install such sanitary facilities and pay the municipal sewer rent for those residents in Municipality 'X' who are without funds to pay the cost of such installations or sewer rental but who are not qualified to receive state welfare relief?"
In South Dakota the legal duty to furnish support for and to relieve the poor is statutory. SDC 1960 Supp. 50.0101 provides that every county shall relieve and support all poor and indigent persons having a lawful poor relief settlement therein whenever they shall stand in need thereof. In Sioux Falls Paint & Glass Co. v. Knutson, 66 SD 261, 281 NW 201, Judge Roberts stated as follows:
"The duty to relieve and support the poor is expressed in general terms, but the mode and nature of the relief extended is not left entirely to the judgment and discretion of the board of county commissioners. Poor persons may be committed to the county asylum as provided in Section 10057, Rev. Code 1919, and in counties where no asylums for the poor have been established boards of county commissioners are authorized under Section 10040, Rev. Code 1919, to contract for the maintenance of the poor. Provision is also made for temporary aid and medical services, and recognizing that complete dependency may be prevented, provision is made for the payment of allowances, as to which there are restrictions imposed (Sections 10041, 10047, 10052 and 10055, Rev. Code 1919). Concerning the nature of the relief permissible under these statutes, this court in the recent case of South Dakota Employers Protective Ass'n v. Poage, supra, in considering an application for mandamus to require a county auditor to countersign warrants for premiums on a workmen's compensation policy covering relief workers employed on a federal work relief project, said: 'The support and relief contemplated by the Legislature, as evidenced by the statutes, is direct in character and is primarily for the benefit of those unfortunate persons having a lawful settlement in the county who, through incapacity or circumstances over which they have no control, have lost the ability to help themselves. It includes, among other things, maintenance or allowance for necessities, hospitalization, medical care and treatment, education, visitation and supervision. Much latitude is permitted, but the power is not unlimited. In ascribing intent to the Legislature, the fact that it placed limitations upon the power of the county to raise revenue cannot be overlooked. Nothing in the statute points to an intention that the county engage in activities directed to the promotion of other welfare programs, or that it solicit or bargain for outside assistance to the poor. Its power to spend is intimately related to its power to raise revenue.'"
Question 1 raises the question as to the extent of such support for the county indigent and poor. As above stated our courts have held that such includes "maintenance or allowance for necessaries." In the situation you have given, is the modernization of the homes of such indigents within the broad comprehension of maintenance or allowance for necessaries? Does such extend to the payment of the requisite sewer rent for the use of the municipal sewage disposal facilities?
My predecessor in office has ruled that the support of the poor may include the payment of necessary house rent for such poor, for the reason that in a climate such as South Dakota enjoys, shelter is as necessary for the support of the poor as is food. (1931-32 AGR 692). My predecessor also ruled (1931-1932 AGR 588) that it would be proper for the County Commissioners to take conveyances of their homes from its indigent poor on the condition that they could reside in such homes and the county would provide them with support during the rest of their natural lives.
It is my opinion that subject to the limitations as mentioned by Judge Roberts in the Sioux Falls Paint & Glass Co. case, that the Commissioners have certain broad and honest discretion in furnishing such relief to the county poor. There is nothing I can find that prohibits them from allowing the poor to remain in their own homes, it being assumed that your county has no poor house nor has it entered into agreements and contracts for such facilities to be provided for the county poor. If one accepts, as it is my opinion he must, the fact that in South Dakota shelter is as essential to life as is sustenance, if the shelter provided for the county poor is declared to be a public nuisance so that the poor may be forced to leave such shelter, the conditions of the statute requiring the county to relieve and support its poor and indigent whenever they shall stand in need thereof are shown, and the County Commissioners may, subject of course to the budgetary limitations, under their broad authority to furnish "maintenance or allowance for necessaries" expend county money to install indoor sanitary facilities in the homes of such indigents and pay the municipal sewer tax for such homes.
My answer to question No. 1 is "YES". The County Commissioners may, in furnishing relief for the county poor and indigent, install the necessary sanitary facilities so that such homes of the poor will not be public nuisances, and pay municipal sewer charges.
Question No. 2 presents a little different situation and comprehends two different types of poor or indigent.
It is my opinion that the statutory duty placed on the county to relieve and furnish support for its poor and indigents is a separate and distinct duty from that placed upon the state by virtue of the statutes concerned with state welfare. Qualifying for state welfare is not a condition precedent to being classified as a poor person or indigent residing within a particular county any more than qualifying as a county indigent is a condition precedent to being placed upon the state welfare rolls. There is no question, of course, that many may qualify as indigents under both programs and receive assistance from one and supplementary aid from the other. However, it should be emphasized that the two programs are exclusive and are not dependent upon each other. A person may be determined to be a county indigent even though state relief has been denied to such person.
It is my opinion that the determination of who may be properly categorized as county poor or indigent is a question the county commissioners must answer. They may consider the denial of state public welfare in making such determination, but such is not the controlling criterion. If the Commissioners decide that a particular person or group of persons within the group described in Question 2 are in fact indigent and poor, the answer to Question 2, as to these people, is the same as the answer to Question 1: "YES" the county may as a part of furnishing relief to the county poor and indigent install the necessary sanitary facilities so that the homes of such indigents are not public nuisances, and in addition pay the municipal sewer charges from the funds budgeted for the county poor.
There still remains in group two those persons who have been denied state welfare assistance and who are considered by the Commissioners not to be indigent or poor. As to this group your attention is called to the provisions of SDC 50.0205 which authorizes the Board of County Commissioners in its discretion to allow and pay to poor persons who may become county charges and who are of mature years and sound mind and who from their general character will probably be benefited thereby, such annual allowance as will not exceed the charge of their maintenance in the ordinary mode.
The exercise of this authority is discretionary. It is my opinion that if the County Commissioners should determine that the cost of installing indoor sanitary facilities would be such that it would result in a person going from a "non-indigent" status to a status of a county indigent, and if it determined that such person was of mature years and sound mind, and who from their general character will probably be benefited thereby, and there is a further finding that the cost will not exceed the ordinary charges for maintenance, then as to these persons, the answer to Question 2 must be "YES" the Commissioners may furnish the costs of installing such facilities so that the home will not be considered a public nuisance, and in addition the Commissioners could furnish the necessary funds to pay for such sewer charges.