STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

January 2, 1973

Dr. Don Barnhart
State Superintendent of Public Instruction
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 73-02

School taxes. School board cannot make a dollar levy in excess of adopted budget. SDCL 10-12-29; 13-11-2.

Dear Dr. Barnhart:

You have requested my official opinion in answer to the following question:

Maya board of education levy in excess of the current budget for general fund purposes?

It is my opinion that the answer to this question is, NO.

Under our scheme of raising moneys to support public education in the school system, other than college or university level, the levy for school purpose is made by the school board in accordance with the adopted and approved school budget. This levy is in dollars. Both SDCL 13-11-2 and 10-12-29 emphasize that:

By resolution the school board shall adopt a levy in dollars sufficient to meet the school budget for all the funds.

Such levy in dollars is reported by the school district clerk or business manager to the county auditor. Both SDCL 13-11-3 and SDCL 10-12-29 then provide:

The county auditor shall spread a levy in mills over the taxable property of the school district subject to the legal mill limitations on any of the funds as provided by law.

Our Supreme Court in Salem Independent School District v. Circuit Court, 60 S.D. 341, 244 N.W. 373 pointed out that the levy of a tax is a function separable from the mathematical computation of the rate upon valuation or the amount of tax chargeable to any individual .or particular piece of property. The latter functions being ministerial in nature. The Court approved of this distinction later in City of Plankinton v. Kieffer, 70 S.D. 329, 17 N.W. 2d 494.

Because of the statutory limitations of the mill levy for school purposes, school boards do frequently arrive at what is a reasonable budget but which in fact does exceed such limitations. This, of course, must be reduced.

It would appear from your question, some school districts are in the envious position that the amount required by the school budget is not in excess Of the amount of money that could be raised if a maximum levy in mills were in fact made by the county auditor, in performing such ministerial act of translating such "levy" in dollars, to attach to all taxable property in the school district.

It is certain that once the county auditor receives such levy in dollars, that he cannot add to such amount to be collected by the mill levy. His only activity in regard to amending or changing such "dollar levy" is to advise the school board that under the limited levy, the maximum amount of money that can be raised by taxation cannot realize the requested monetary amount. Likewise, the report of the school district clerk or business manager of such levy in dollars is at best a ministerial duty. The clerk or business manager cannot change or add to such levy as made by the school board.

The school board by law has to adopt a school budget. When this is adopted, it acts by resolution to adopt a tax levy in dollars sufficient to meet the school budget for all the funds. It cannot after having adopted a budget, "pad" such budget in order to ask more in the dollar levy than is required by such budget. It should appear to the school board at the time of preparing the annual budget that excess funds remain on hand from taxation in the previous years, such funds should be anticipated as being available to operate the school system to the end that the amount of money necessary to be raised by taxation be reduced. However, in the use of such excess funds, the school board may not allocate such moneys to any appropriate school fund, but rather, such excess must be allocated to the school fund for which such taxes were levied.

Respectfully submitted,

Kermit A. Sande
Attorney General