February 28, 1985

Mr. John Fitzgerald 
Butte County State's Attorney 
Butte County Courthouse 
Belle Fourche, South Dakota 57717

OFFICIAL OPINION NO. 85-11

Predator control

Dear Mr. Fitzgerald:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Butte County is a member of a predator control district set up under  SDCL 40-37.  The Butte County Director of Equalization has sent two written requests to sheep growers in Butte County for a statement of the number of sheep.  The assessor has had only sixty-five percent of the sheep growers respond. 

The Director of Equalization would like to levy the tax upon the sheep of the thirty-five percent that have not responded.  The director wishes to use numbers of sheep from previous years and estimate the present number of sheep based upon sheep shown by the non-responding growers in the past.  She would then use those figures to calculate the tax levy as provided in Chapter 40- 37.

Based on the foregoing facts, you have asked the following question:

QUESTION: 

Would it be appropriate to assess the tax for the predator control district based on estimates for the thirty-five percent of growers who have not responded to a written request by estimating their number of sheep?

ANSWER:

SDCL Ch. 40-37 provides for predator control districts pursuant to a petition by fifty-one percent or more of sheep or cattle growers, or fifty-one percent of sheep and cattle growers acting jointly.  Only resident owners are included in calculating the percentages.  If such a petition is received, the secretary of the Department of Agriculture is to designate the county as a predator control district.  The district is then organized in accordance with the provisions of Chapter 40-37.

One of the powers of the district board of directors is to levy a special tax for the operation of the predator district.  This is done in accordance with SDCL 40-37-9 through 15.

Your inquiry essentially involves a question of how the livestock subject to this tax is to be listed and assessed for purposes of collecting the tax.  It would be my opinion that the provisions of SDCL 10-6-5 through 10-6-10 apply in assessing livestock for purposes of this tax.  See also, SDCL 10-3-22 through 10-3-27.  Since repeal of the personal property tax, it is probable that the provisions of these statutes have fallen into disuse.  They are, however, still applicable to the assessment of property for purposes of those taxes that remain.

In accordance with these statutes, it is my opinion that the Director of  Equalization should demand, pursuant to SDCL 10-6-8, that all livestock owners give her the required statement of their sheep, or if applicable, cattle.  If the owners, or some of them, refuse to give the required statement, then the Director is authorized, pursuant to SDCL 10-3-28, to make an estimate of the amount of livestock that each stock grower has, and to note the neglect or refusal on the assessment book opposite the name of such persons.

It is also worth noting that a refusal to permit inspection of assessable personal property is not cause for estimating pursuant to SDCL 10-3-27.  State v. Stip, 246 N.W.2d 897 (S.D. 1976).    In order to justify such an inspection, a warrant must be obtained. Id.  The estimate may, however, follow if there is a refusal to give the information required by SDCL 10-6-8.  Id. at 899, SDCL 10-3-27.

Respectfully submitted,

Mark V. Meierhenry
Attorney General