Can a South Dakota county build an addition to the county 4-H building if the sole purpose of the addition is to rent space to federal agencies (ASCS, Soil Conservation Service, Farmers Home Administration)?
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This page answers the general question as of 1978. Ask about yours and see what current South Dakota law means for your facts, with citations you can check.
Plain-English summary
Moody County's commissioners wanted to expand the county 4-H building. The reason was not a 4-H program need; the addition would be built specifically to provide office space for federal agencies that wanted to rent in the county (Agricultural Stabilization and Conservation Service, Soil Conservation Service, Farmers Home Administration, and similar). The question came to AG Kermit Sande.
Sande compared the request to an earlier opinion (Official Opinion 72-62) that had approved a county renting existing courthouse space to the Soil Conservation Service. The earlier opinion read SDCL 1-24 (the joint-exercise-of-powers chapter) to authorize a county to cooperate with other public agencies, including by leasing existing space.
But Sande drew a line between renting existing space and building new space. The earlier opinion involved space the county already had; the Moody County proposal was construction solely to rent to federal agencies. That was not a joint exercise of powers under SDCL 1-24-2. Looking up "joint" in Webster's Seventh Collegiate, he noted that it takes more than one to act jointly. SDCL 1-24-4 and 1-24-5 address an agreement and provisions for control of the agency and property.
The path forward, Sande said, was actual joint construction. If the proper procedures were used and the building was a joint effort of public agencies, including joint funding, he said construction would be proper. The Moody County plan as described did not meet that standard.
Currency note
This opinion was issued during AG Kermit Sande's tenure in the late 1970s. 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. SDCL 1-24 may have been amended since 1978, and the federal agencies named in the opinion (ASCS, Soil Conservation Service, Farmers Home Administration) may have been renamed or restructured.
What the opinion meant at the time
For Moody County, the answer was no on the proposal as described. The AG said construction could be proper if the public agencies used the required procedures and made it a joint effort, including joint funding.
For other counties contemplating similar federal-landlord arrangements, the opinion drew a sharp distinction. Renting unused space in an existing county facility was fine. Constructing a new facility on the rental theory was not.
For federal agencies seeking space in county buildings, the opinion distinguished renting space already available in a courthouse from jointly constructing new space under SDCL 1-24.
Common questions
Q: Why did the AG reject Moody County's proposal?
A: SDCL 1-24-2 permits public agencies to exercise powers jointly. The AG said the county's proposed construction solely to rent to federal agencies was not a joint act of governmental agencies.
Q: Could the county rent space it already had?
A: The AG described an earlier opinion, No. 72-62, that allowed a county to rent existing courthouse space to the Soil Conservation Service. He distinguished that arrangement from building a new structure solely for rental.
Q: What does "joint" require under SDCL 1-24?
A: The AG said the undertaking must be by agreement of two or more governmental agencies. He cited SDCL 1-24-4 and 1-24-5 on the agreement's contents and control of the agency and property, and said joint construction would include joint funding.
Q: Does the opinion decide whether a county may build space to rent to private businesses?
A: No. It addresses a proposed lease to federal agencies and interprets the joint-exercise-of-powers statutes governing public agencies.
Background and statutory framework
SDCL ch. 1-24 concerns joint exercise of powers by public agencies. The opinion quotes SDCL 1-24-2 and says that acting "jointly" takes more than one agency. It points to SDCL 1-24-4 and 1-24-5 for agreement terms and control of the agency and property. The AG said construction would be proper if public agencies followed the required procedures and acted jointly, including joint funding.
The earlier Opinion 72-62 had read SDCL 1-24 generously enough to permit rental of existing space, treating that as a form of cooperation. Sande's 1978 opinion declined to extend that reading to new construction. The distinction was between using existing capacity and creating new capacity solely for the rental relationship.
Citations and references
Statutes:
- SDCL 1-24 (joint exercise of powers)
- SDCL 1-24-2 (joint exercise authority)
- SDCL 1-24-4 and 1-24-5 (agreement contents and control provisions)
Prior AG opinions:
- Official Opinion 72-62 (county may rent existing courthouse space to Soil Conservation Service)
Source
Original opinion text
County Commissioner may not build a building for the purpose of leasing to various United States Government agencies.
Dear Mr.:
You have requested an official opinion on the following factual situation:
The Board of County Commissioners of Moody County wants to erect an addition to the Moody County 4-H building. The only purpose in doing this is to lease the building to various governmental agencies including the A.S.C.S., Soil Conservation Service, Farmers Home Administration, and other federal agencies.
In connection with the above factual situation, you have asked the following question:
Can the County of Moody erect an addition to the Moody County 4-H building? The purpose of erecting the addition would be to lease the building to various Federal governmental agencies.
This office considered a similar question in Official Opinion No. 72-62. In that instance, the question was whether the Board of County Commissioners could rent out space in the courthouse to the Soil Conservation Service. That opinion stated that the county could rent space in the courthouse to the agency in light of SDCL 1-24 which gives authority to the counties to cooperate with other public agencies.
The question you asked is different, however, from that in Opinion No. 72-62. In that opinion, the space was available in an existing structure; in the present case, the county would have to build an entire new structure for the purpose of renting to the public agencies.
SDCL 1-24-2 states:
Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state having such power or powers, privilege or authority, and jointly with any public agency of any other state or of the United States to the extent that the laws of such other state or of the United States permit such joint exercise or enjoyment. Any agency of South Dakota state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges, and authority conferred by §§ 1-24-2 to 1-24-9, inclusive, upon a public agency.
The key word in the section is jointly. Webster's Seventh Collegiate Dictionary defines the word "joint" as follows:
1: united, combined
2: common to two or more: as
a(1) involving the united activity of two or more
(2) constituting an activity, operation, or organization in which elements of more than one armed service participate
(3) constituting an action or expression of two or more governments
b shared by or affecting two or more
3: united, joined, or sharing with another
The clear meaning of the word is that it takes more than one to act jointly.
The building of the 4-H building would not be a joint act of governmental agencies under that definition.
When the statutes SDCL 1-24-2 to 1-24-9 are considered together, it is apparent that the Legislature intended the undertaking to be by agreement of two or more governmental agencies. SDCL 1-24-4 and 1-24-5 set out the contents of the agreement and the provisions for the control of the agency and property, respectively.
Therefore, the answer to your question is, NO, that the County Commissioners of Moody County cannot build a 4-H building for the sole purpose of renting it to other governmental agencies.
However, if the proper procedures are used and the construction of the building is a joint effort, including joint funding, etc., between the various public agencies, I would say that the construction would be proper.
Respectfully submitted,
Kermit A. Sande
Attorney General
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