December 11, 1978

Mr. Rodney C. Lefholz 
Deputy State's Attorney 
Pennington County Courthouse 
Rapid City, South Dakota 57701

Official Opinion No. 78-55

Allocating fire insurance premiums to local fire districts

Dear Mr. Lefholz:

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

FACTS: 

The Pennington County Commission is presently dividing the fire insurance premiums tax among the various fire departments located in Pennington County.  This division is to be accomplished according to the provisions of SDCL 10-44-9.1 through -9.6.
    
When the formula contained in SDCL 10-44-9.5 is used, a certain amount of money is thereby determined to go to each fire district within the county.  However, in some cases this amount is less than what was allocated to a given district on July 1, 1976.  SDCL 10-44-9.1 states in part: 
     
Notwithstanding any provision of this chapter or any other statute, each fire department receiving funds from the fire insurance premiums tax shall continue to receive an amount not less than the amount received on July 1, 1976.

Based on the above factual situation, you ask the following question:

QUESTION: 

How is the apparent contradiction between paragraphs -9.1 and -9.5 of SDCL 10-44 resolved so that the fire insurance premiums tax may thereby be properly divided?

SDCL 10-44-9.1 provides: 
    
On or before July first of 1978, and each year thereafter the director of insurance shall certify to the state auditor the amount of fire insurance premiums tax collected in the preceding year under the provisions of § § 10- 44-2 and 10-44-9.  Each year, the general appropriation act shall contain a determination of the amount of fire insurance premiums tax available for distribution. Notwithstanding any provision of this chapter or any other statute, each fire department receiving funds from the fire insurance premiums tax shall continue to receive an amount not less than the amount received on July 1, 1976.

SDCL 10-44-9.5 provides: 
    
Upon receipt of the funds as provided in §  10-44-9.4 each board of county commissioners shall determine the amount to be received by each certified fire department servicing the county, including those domiciled outside the county.  All the funds received shall be divided one-half in the same ratio as the assessed valuation of all property within the service area of the department to the assessed valuation of all property within the service areas of all fire departments within the county, and one-half in the same ratio as the population within the service areas of all fire departments within the county.  The board of country (sic) commissioners shall base the allocation on figures contained in the most recent published and annual statistical report of the department of revenue and census or population estimates of the United States department of commence (sic) bureau of the census.

Although there may appear to be an apparent contradiction between the above-cited statutes, it is a fundamental rule of statutory construction that the statutes be read in pari materia and be interpreted in such a fashion that both statutes can be given force and effect.  I believe the statutes are capable of being interpreted in this fashion.

The provisions of SDCL 10-44-9.1 obviously are intended to provide a “hold harmless” or “guarantee” that no fire department will receive under the new legislation, less than they received during the last year of the old program, i.e. July 1, 1976.  Thus, SDCL 19-44-9.1 constitutes an exception of the general provisions of SDCL 10-44-9.5.

Respectfully submitted,

William J. Janklow
Attorney General

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