August 31, 1976
Mr. Tom Tobin
City Attorney
430 Main Street
Winner, South Dakota 57580
OFFICIAL OPINION NO. 76-83
Discharge of special assessment tax sale certificates
Dear Mr. Tobin:
You have requested an opinion regarding the following facts:
FACTS:
Early in the 1950's the City of Winner levied special assessments for the construction of curb and gutter. The assessments were payable in installments. No special assessment certificates were issued to the contractor under SDC 45.2109 (SDCL 9-43-55).
In some instances the special assessment levy was not paid and the property was sold for taxes with the county taking the tax sale certificate. SDC 1960 Supp. 45.2111(4) (SDCL 9-43-39). This took place in 1957. The tax sale certificates remain in the hands of the county and no tax deed proceedings have been commenced.
The City of Winner has at various times abated some or all of the taxes against parcels involved in this assessment plan. Taxes against the lots in question have not been abated.
Based on the above facts you ask:
QUESTION:
Is the collection of these outstanding special assessment liens outlawed or barred?
It is necessary to differentiate between special assessment certificates and tax sale certificates.
Special assessment certificates are authorized by SDC 45.2109 (SDCL 9-43-55). This method permits the issuing of the contractor of certificates evidencing his entitlement under the contract to monies collected from the property owners. The special assessment certificate method is merely one of the financing plans available to municipalities. Others include the issuance of special assessment bonds, SDC 45.2114 (SDCL 9-43-62) or the payment for the improvement from the general fund, SDC 1960 Supp. 45.2115 (SDCL 9-43-68).
By statute, SDC 45.2118 (SDCL 9-43-28), all special assessments are a perpetual lien against all persons except the United States and this State.
Proceedings for the sale of the property for nonpayment of special assessments are generally similar to other tax sale proceedings although recent enactments, not applicable to this opinion, have amended some of these procedures.
The law in effect at the time of the making of these special assessments provided that, where the holder of a special assessment tax sale certificate had commenced no proceedings under the same for a period of 15 years, all rights and interest of the owner and holder of such tax sale certificate ceased and was forever barred and the certificate together with the lien should be cancelled, SDC 57.1110 (SDCL 10-23-20). This section was repealed by Section 6, Chapter 78, Laws of 1974.
By its terms, however, it applied only to the holder of the tax sale certificate. That is one who purchased at a tax sale as distinguished from the county which bids in the property if no purchaser appears. The second paragraph of SDC 57.1110, now SDCL 10-23-31, likewise repealed by Chapter 78, Laws of 1974, provided that nothing in such section:
Shall in any manner affect nor limit procedure or enforcement of any such special assessment certificate held by any city or county, and the assignee of same from any such city or county shall have a period of six months after date of such assignment to enforce the same by tax deed or other proceedings.
While this section, SDCL 10-23-31, refers to special assessment certificates; that terminology must be taken in context with the original Act, SDC 57.1110, and means “tax sale certificates."
There is no question, based on the law in effect in 1957, that were there a holder of a special assessment certificate or the private holder of a special tax sale certificate (SDC 45.2121; 57.1110), the same would not be enforceable after 1972. Such is not the case, however. SDCL 10-23-31 did not bar the enforcement of delinquent special assessments where the holder of the same was the city or county.
The answer to your question is NO.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:JD:dh
