September 20, 1984
The Honorable G. F. Mortimer
State Representative
500 East Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 84-39
Tax collection and predator control districts
Dear Representative Mortimer:
You have requested an official opinion based on the following factual situation:
FACTS:
Pursuant to the provisions of SDCL Chapter 40-37, predator control districts have been formed in several West River counties. However, taxes are not being paid by the stockgrowers because the taxes are not being collected for the districts by the counties as required by SDCL 40-37-17.
Concerning these facts you have asked the following question:
QUESTION:
Can the county be forced to carry out its statutory duty and, if so, how?
In order to answer your question it is necessary to review the statutes in question to determine the legislative intent as to the procedure for this tax collection.
In 1974 by Chapter 75, Laws of 1974, the Legislature enacted in an emergency measure HB 756, which authorized the creation of Predator Control Districts in certain counties and authorized a special levy on certain livestock to support the predator control. This was approved and became law on February 20, 1974. Under that Act as it now stands, with some amendments, resident owners of 51% of the cattle or sheep in a county may petition the Secretary of Agriculture to designate the county as a Predator Control District. A petition may also be filed to join one county with another district already established.
The Director of Equalization in a county shall conduct an annual livestock survey. At the formation of the district the Director of Equalization makes a list of all persons who are owners of livestock, mails them notice, publishes a copy of the notice and sets the date of the meeting. Thereafter, the directors and officers are picked to handle the affairs of the district. These directors may pay employees, may pay bounties, and contract with federal, state or local governments.
In fulfilling their duties the Board of Directors is authorized thirty days prior to the annual levy of the county to determine the amount of any special levy for the district and to certify such levy to the Board of County Commissioners. The law then provides that the county commissioners shall at the time of the annual levy of the general tax levy an additional special tax as specified by the directors which cannot be more than 25 cents each for sheep six months old or older on the preceding January 1st which are held for breeding and six cents per head of cattle one year and older not located in the feedlots. In addition a further tax may be levied if a referendum is carried out as authorized by the statute which tax then would stand for a three year period.
In the original Act the statute was silent as to the collection of tax except to specify in Section 12 that the board of county commissioners should levy the additional tax and that in Section 18 all funds received by the Predator Control District should be placed in the county treasury of one of the counties in the district. Apparently there was a problem at that point as to how the money was to be collected and thus in 1875, by Chapter 262, Laws of 1975, SB 268 was enacted which related to the funds of the predator control district. That Act, presently in existence, reads as follows:
Proper tax collecting officials shall collect all predator control district taxes, together with interest and penalities thereon, if any, in the same manner as the general taxes are collected, and shall pay over to the predator control district secretary-treasurer on the tenth day of each month all taxes so collected during the preceding month, with interest and penalties collected thereon. The district secretary-treasurer forthwith shall enter these receipts to the credit of the predator control district fund.
In reality then your inquiry comes down to these questions:
1. What is the nature of the 'special tax' authorized by SDCL 40-37?
2. What tax collection procedures are authorized in collecting these special taxes?
3. Who are the 'proper tax collecting officials' who are required to collect these predator control district taxes?
4. What remedies exist if such 'proper tax collecting officials' fail to do their job in collecting the tax?
In 1974 the state of South Dakota had both real and personal property taxes and therefore the annual levy of general taxes referred to in SDCL 40-37-11 contemplated the time in the tax process when the general levy took place. This is spelled out in SDCL 10-12-8 and is on the first Tuesday in September of each year or within ten days thereafter. Under that section the Board of County Commissioners levy the necessary taxes for the current fiscal year on all taxable property in the county.
Taxes are occasionally classified as general or special. This classification is made most commonly with respect to the distinction between the imposition known as 'special assessments or special taxes' and the customary annual tax imposed upon all property to provide revenue for the usual and ordinary day to day expenses of the government. Taxes are termed 'special' if levied for a special purpose in the sense that they are not imposed generally upon all the property or persons with the taxing unit. In some instances the expense of a particular public function is met in whole or in part by a tax on those who will benefit by the maintenance of such function or who may be supposed to have caused the expense to be incurred. 71 Am.Jur.2d State and Local Taxation, Section 21, 13 A.L.R. 828, 833-835. This tax is a special tax of that character. It is levied with the avowed purpose of bountying predatory animals and making contracts with respect thereto with agencies of the federal, state or local governments. And with respect to the levy it is to be made only against sheep held for breeding purposes and cattle not in feedlots.
As previously noted in the original enactment there were no procedures spelled out for the collection of the tax. This must have become apparent to the people in the districts as the Legislature the next year passed a law which, at least, give a minimum amount of direction on this matter. That directed that the proper tax collecting officials should collect the predator tax with interest and penalty thereon in the same manner as general taxes are collected. It, perhaps, would have been clearer had the Legislature spelled out the obligations of each of the tax collecting officials; however, since the duties of those officials are already contained within the law, it should not be too difficult for them to determine who they are.
In the usual assessment practice, the assessor is the one who is required to find the property and determine its value, SDCL 10-3. The county auditor is required, after receiving the levy from the commissioners, to make out a tax list for each assessment district, calculate the extension of mill levies and the total tax, prepare a duplicate tax list and charge the county treasurer with the amount of the tax list, SDCL 10-17. The county treasurer is by law the collector of all taxes extended upon the tax lists of the county and all delinquent taxes for any other purpose, SDCL 10-21-1. Procedure to be followed by county treasurers are spelled out in SDCL 10-21 and need not be repeated here except to note that the statute fixes a due date for taxes as of January 1st of each year following the assessment levy or extension of the same, SDCL 10-21-4, and speaks to the delinquency of such taxes in SDCL 10-21-33 and 10-21-24 relating to real or personal property taxes. In actuality the delinquency dates for both are the same, i.e. the taxes are due on January 1st preceding and they are delinquent unless one-half is paid in full on or before April 30th and the second half on or before the first of November. The county treasurer thus, is the proper tax collecting official acting after the director of equalization and the county auditors have performed their respective functions.
In collecting these taxes, if they are not paid and become delinquent, several remedies exist for the county treasurer such as permitting the delinquent taxes to be turned over to a special delinquent tax collector, SDCL 10-23-34. A distress warrant may also be issued to the sheriff for delinquent taxes, SDCL 10-22-8. Likewise there is a deduction authorized from any taxpayer who owes money to the county from any warrant the county might hold for such taxpayer and there also is an offset of claims against the county by any person owing delinquent taxes. These are contained in SDCL 10-22-5 to SDCL 10-22-7. The various notices as to delinquency are also contained in SDCL 10-22 which, although ostensibly relate to personal property taxes, are available for any form of delinquent tax if the manner of advertising the fact of delinquency is not otherwise provided for.
With this discussion then as to the law of this state concerning these taxes I would preface my concluding remarks with this: that although the statute could be more clearly worded as to the procedural details and the matter of penalty and interest, it is my opinion that the Legislature plainly intended that special assessments with respect to predator control districts should stand on the same basis and be treated exactly like the general taxes which are used to run the government, the difference being that the levy is made against and collected from only those individuals who are supposed to be benefiting from the proceeds of the special tax levy. Thus, the interest provisions provided for delinquent taxes in SDCL 10-21-33 and SDCL 10-21-24 apply and attach to these special taxes.
It should be noted that a civil action is also authorized for the collection of taxes when the same is not paid within the time prescribed by law, SDCL 10-22-53, and the county treasurer whose duty it is to collect such taxes in addition to any other remedy provided by law is expressly authorized to enforce the collection thereof by a civil action in the circuit court for his county in the name of such treasurer as against such person for the recovery of such unpaid taxes. The treasurer is also empowered to invoke ancillary remedies and proceedings, including attachment, garnishment, and receivership, SDCL 10-22-55. These ancillary powers came about as a result of a decision of the State Supreme Court which said that unless it was specifically provided by law, civil actions could not be resorted to since a tax is not a debt. Hansen County v. Gray, 80 N.W. 175 (S.D. 1899).
This then returns us to the gist of your question having to do with the enforcement of these taxes. The Secretary of Revenue is given power to direct proceedings and actions and prosecutions to enforce the law relating to penalties, liabilities, and punishment of public officers for failure or neglect to comply with the provisions of the law relating to the assessment and taxation of property and to cause their removal from office for official misconducts of neglect of duty, SDCL 10-1-31. He may also direct the State's Attorneys to assist in the commencement and prosecution of actions or proceedings in these instances. In the event that the director of equalization should fail to do his duties with respect to taxes, it is provided by SDCL 10-3-39 that he or his deputies and their sureties are liable on their official bonds and the State's Attorney is required to commence an action against such director, SDCL 10-3-40.
In the event that it shall appear the treasurer has not collected the full amount of taxes and interest which, according to the tax list he should have collected, the auditor is required to charge the treasurer the amount that such receipts falls short of the true amount and the treasurer is then liable on his official bond to account for and pay over the same, SDCL 10-21-21. All civil officers are required to have bonds sufficient to cover the official duties of their office, SDCL 3-5-11.
In the event that it is necessary to obtain a judgment against the bond of a tax collecting official due to the failure to collect specified taxes, SDCL 3-4-1 provides that the act of obtaining that judgment for the breach of his bond automatically vacates the office which he held.
It would seem to me that there is ample authority to require the proper county officials to carry out the duties of their offices under the conditions which you have raised and the fact of personal liability would likewise seem to furnish a fair incentive for them to act.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
