STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 21, 1971

Mick Grossenburg
States Attorney, Tripp County
Winner, South Dakota 57580

OFFICIAL OPINION NO. 71-48

County Law Book and Library Fund applies to small claims action. Disposition of small claim fees by clerk of courts. SDCL 15-39; SDCL 14-6

Dear Mr. Grossenburg:

You have requested my official opinion in answer to these questions:

1. When the Judges of the Circuit Court have ordered the imposition of the fee for the County Law Book and Library Fund, in pursuance to SDCL 14-6-1, may such fee be imposed upon a small claim action held in pursuance to SDCL 15-39?

2. What is the proper method for the clerk of courts to pursue in handling the necessary moneys to notify the defendant in a small claims action, which, by virtue of SDCL 15-39-13, must be prepaid by the small claim plaintiff?

QUESTION ONE: The County Law Book and Library Fund, as found in SDCL 14-6, was the subject of an opinion issued by me and reported in 1969-70 AGR 39. You will notice that while I stated such would generally apply to all suits at law or actions in equity, wherein one party seeks redress for a private wrong or to enforce or protect a private right in any court whose papers are filed in the office of the clerk of courts. Such fee is also collectible in any action for a judicial remedy as provided in South Dakota statute, and in all proceedings within the probate jurisdiction of the District County Court. However, you should also notice that I specifically pointed out certain actions which while the same could be considered a "civil action" or a "proceeding for a judicial remedy," were not in my opinion, subject to the imposition of such fee.

This question raises the interesting and practical problem as to whether or not small claims proceedings are subject to the imposition of the fee for such County Law Book and Library Fund?

The Small Claims Procedures originated in Ch. 187 of the Session Laws of 1921. Section 1 of the 1921 Act provided, as the statute does now, for a "simple, informal and inexpensive procedure for the determination according to the rules of substantive law, of claims in the nature of contract or tort, other than slander and libel, where the plaintiff does not claim as debt or damage more than a designated amount in money." By the amendment of such designated amount by Ch. 149 of the Session Laws of 1971 (See SDCL 15-39-1 as amended) such designated amount is not more than one hundred dollars in justice court or police magistrate court, or not more than five hundred dollars in district county court or municipal court.

SDCL 14-6-2 provides the fee imposed for the County Law Book and Library Fund are taxable as costs in a lawsuit. SDCL 15-39-38 provides for costs to the prevailing party in a small claim action. I can appreciate that these costs shall include only the actual cash disbursements of the prevailing party for entry fees, mailing fees, witness fees, and officers' fees. However, the statute then provides "no other costs shall be allowed to either party, except by special order of the court."

I can concur with my predecessor in setting forth the ordinary costs in small claims court as set forth in 1921-22 AGR 105, and 1929-30 AGR 109. However, if there is any intimation in such opinions that the special order of the court in adding additional fees is limited solely to award costs, not exceeding twenty-five dollars, if in the discretion any party by his activities attempted to hamper a party or the court in securing a speedy determination of the claim upon its merits, I herewith overrule such determination.

It is my opinion that the small claim procedure is subject to the imposition of the County Law Book and Library Fund, unless it is an action within the exemptions provided by SDCL 14-6-1. It is also my opinion that by the special order of the court conducting such small claims court, if the plaintiff prevails that the court may order the addition of such $1.50 charge by way of costs to the plaintiff.

Question No. 1 is answered YES.

QUESTION TWO: As this office indicated in its opinion 1919-20 AGR 105, a plaintiff, to initiate a small claim proceedings, must pay the necessary "filing fee," the necessary prepaid mailing fee, and in conformity to the present opinion, the necessary County Law Book and Library Fee as a condition to commencing such action.

The clerk of courts should issue a receipt showing the complete payment as made by such plaintiff. The Law Book and Library Fee should be remitted in comformity with SDCL 14-6-3.

The prepaid collection for mailing to the small claim defendant, of course, is not a county fund properly deposited to the general fund of the county. It is in the nature of a fund collected in trust by the clerk of courts, who is duty bound to follow the statutes and to mail the required notice by registered or certified mail to the small claim defendant as required by SDCL 15-39-13.

I must assume that in the ordinary small claims case, such mailing is done contemporaneously with the filing of such small claim action. If the clerk collects such prepaid mailing charge in currency, he is faced with one of two alternatives. He can immediately change such moneys into the proper stamps at the United States Post Office, upon mailing such notice. His records should set forth this transaction so that his receipt book can balance with his deposit to the county treasury and expenses. The second alternative is that the clerk may in his discretion purchase a quantity of United States postage stamps for use for mailing of notice in small claims action. These stamps can be segregated from the ordinary postage of his office. Upon receipt of such prepaid postage charge, this money can be segregated to purchase more stamps, and the proper quantity of stamps taken to complete his duties under the Small Claims Act.

The only problem that may arise would come about if the regular filing fee together with such prepaid postage were collected in the form of a check or other negotiable instrument. The clerk is duty bound to deposit his fee with the county treasurer, segregate the County Law Book and Library Fund for its monthly remittance in accord with SDCL 14-6-3, and segregate the "prepaid postage fees" to comply with duties under the small claim procedures. Accepting such fees by way of a check might cause some problems, but it would seem most clerks of courts have successfully met with problems of this kind in the past, and have successfully solved any problems that may arise therefrom.

The clerks of court should always remember that they need not accept anything but lawful United States money in payment of fees. Perhaps to escape any embarrassment arising from insufficient fund checks, stop payment checks, and the bookkeeping caused by small claim procedure, each clerk of court would lighten their tasks in this area if they requested the small fees necessary to file a small claim action be paid in the coin and currency of the United States.

This opinion refers only to fees collected by the county clerk of courts.

Respectfully submitted,

Gordon Mydland
Attorney General