November 26, 1985

Mr. Glen W. Eng 
Moody County State's Attorney 
Post Office Box 331 
Flandreau, South Dakota 57028-0331

OFFICIAL OPINION NO. 85-51

The distribution of funds collected by the county tax levy for fire fighting purposes

Dear Mr. Eng:

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

FACTS: 

Moody County has for several years assessed a fire tax levy pursuant to SDCL 34-31-1.  The money raised by the county-wide tax has traditionally been distributed in two ways.  Most of the township boards direct the County Commissioners to distribute their share of the levy money to the fire departments which provide them with service.  Three townships, however, have received their share of the money directly, deposited it in a specially earmarked savings account and from this fund have paid the fire departments which provide them with service. 

These three township boards have asked the County Commissioners to discontinue the county fire levy in their township because they have been able to obtain fire protection at a lower rate and, therefore, have excess money in their accounts.  Instead of returning this money to the County, they are keeping this money in a special township fund earmarked for fire protection.

Based upon the above facts, you have asked the following question:

QUESTION: 

Whether a county can levy money pursuant to SDCL 34-31-3 on less than all of the real property in a county (taking into consideration that municipalities are not included unless they petition to have the tax assessed)?

SDCL 34-31-3 authorizes the Board of County Commissioners to levy a tax not to exceed one mill upon all the taxable property in any organized or unorganized county outside the limits of the municipalities.  The proceeds of this tax levy are to be used only for the purposes of §  34-31-1 and 34-31-2 which state in pertinent part: 

The funds are to be used for the purchase and operation of any fire- fighting equipment or fire protection to safeguard the range, farm and forest lands within their respective counties and in prevention of fire nuisances thereon.  The fire levy is taxed on the real estate of the county on a county-wide basis.

Fire is a unique menace which can strike anywhere, at any time, and with any degree of frequency in any township.  The present distribution scheme for tax levy funds does appear to give the townships some degree of discretion as to which fire department they will contract with and pay for fire protection services.  As stated in the facts, several townships which received their share of the levy money directly, have been able to negotiate a lower rate for their fire protection services and, therefore, have accumulated excess funds.  These  excess funds have not been returned to the County but have been placed by the townships in specially designated accounts.  Now the townships are asking the County Commissioners to lift the tax levy from their townships for the next several years until the excess funds are depleted.

It is my opinion that any excess funds available after the townships have paid the respective fire departments which provide them with protection should be returned to the County Board of Commissioners to be maintained in a separate account for the purpose of providing additional fire protection or equipment for additional township needs in compliance with SDCL 34-31-1 and 34-31-2.

SDCL 34-31-3 firmly states: 

That the proceeds of such tax shall be used only for the purposes of 34-31- 1 and 34-31-2 in the county in which the tax is levied and unexpended balances at the end of the fiscal year shall not revert to the general fund but shall be permitted to accumulate and shall be available for carrying out the provisions of the sections.

Thus, the excess funds should be kept in a special county fire protection account, and not revert to the general county fund or be comingled with other county funds.  The purpose of Chapter 34-31 is to provide for fire protection for all of the townships within the County.  If excess funds are returned to the County Commissioners, the fire fund may grow to such a degree that the fire  protection tax levy may be decreased county-wide.  The townships which simply designate the fire department which provides them with protection so the County Commissioners can pay them are not given or permitted to retain excess funds. It is my opinion that this use of excess funds is more equitable, for it provides for the welfare of the County as a whole, rather than allowing individual townships to retain excess funds for their personal fire protection needs.

Therefore, the answer to your question is no.  For the purposes of the fire protection tax levied on the County as a whole, individual townships must return excess funds to the County rather than be exempted from the tax levy.

Respectfully submitted,

Mark V. Meierhenry
Attorney General