November 28, 1977

Mr. Jack Merwin, Secretary 
Department of Game, Fish and Parks 
Anderson Building 
Pierre, South Dakota 57501

Official Opinion No. 77-97

Snowmobile program

Dear Mr. Merwin:

You have requested an opinion from this office based upon the following factual situation:

FACTS: 

For several years a snowmobile program has existed in South Dakota.  Funding for such services has been derived from the sale of snowmobile licenses which cost $10 per machine.  SDCL 32-5 provides for such fees and establishes that monies so collected accrue to ten individual snowmobile funds.  Nine such funds are in the nine western counties of South Dakota, one fund for each county.  The other fund is a fund in the Game, Fish and Parks Department.  Monies collected in each of the nine western counties remain with those counties and monies collected in all remaining counties of the state are deposited in the one fund within the Game, Fish and Parks Department. 
    
The 1977 legislative session passed House Bill 835 which was signed into law.  This law provides for the transfer of motor fuel tax based upon a formula.  House Bill 835, now SDCL 10-47-60.1, states that fuel tax should be transferred as provided in SDCL 32-5-9.2 which outlines the nine county funds and the one fund in the Department of Game, Fish and Parks. 
    
In making the first transfer of motor fuel tax as provided by SDCL 10- 47-60.1, the State Treasurer's Office transferred the entire tax to the one fund in the Game, Fish and Parks Department.

Based on the above factual situations you ask the following question:

QUESTION: 

Since license fee legislation established ten snowmobile funds and SDCL 10-47-60.1 increased the funds available for expenditure for snowmobile activity, can the transfer of fuel tax be into the same ten separate snowmobile funds as originally established?

SDCL 10-47-60.1 provides: 
    
Prior to any other expenditure or transfer authorized by chapter 10-47, the state treasurer shall transfer funds from the motor fuel tax fund for snowmobile trails, as provided in § 32-5-9.2, in an amount equal to the product of multiplying the number of licensed snowmobiles times one hundred gallons times the rate of tax provided in § 10-47-2 for fuel except motor fuel sold for use in aircraft.

SDCL 32-5-9.2 provides: 
    
Except as herein provided, the department of public safety shall retain two dollars of each fee collected under §  32-5-9.1 and shall transfer the remainder of each fee collected to the state treasurer who shall deposit such funds in a special revenue fund to be established and known as the snowmobile trails fund.  In each instance where an application is made in Butte, Custer, Fall River, Harding, Lawrence, Meade, Pennington, Perkins, or Shannon counties, the counties shall retain and deposit in a special county snowmobile trails fund eight dollars and remit the remaining two dollars to the department of public safety.

The answer to your question is not readily apparent from the language in the above-cited statutes.  SDCL 10-47-60.1 indicates that the transfer of funds shall be “as provided in § 32-5-9.2.” This would seem to me to be recognition of intent on the part of the Legislature that the funds to be transferred pursuant to § 10-47-60.1 would be according to the distribution procedure set forth in § 32-5-9.2, but in amounts computed pursuant to the formula in § 10-47-60.1.

It is my opinion that this interpretation most closely gives effect to what must have been the intent of the Legislature in inserting the condition in § 10-47-60.1 that such transfer be as provided in § 32-5-9.2.  If the intent of the Legislature were to limit the reference there to the statute wherein the special fund known as the snowmobile trails fund was established, language could have been chosen to limit SDCL 10-47-60.1 to that extent. The choice of the words “as provided in § 32-5-9.2,” however, indicates to me an intent that the distribution procedure established in § 32-5-9.2 would be followed in the distribution of funds under § 10-47-60.1.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:rw