STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 16, 1974

Arthur L. Rush
States Attorney, Clay County
Vermillion, South Dakota 57069

OFFICIAL OPINION NO. 74-17

Municipal imposition of a mobile home parking fee.

Dear Mr. Rush:

You have presented the following factual situation:

The City of Vermillion has enacted an ordinance regulating the parking and location of mobile homes and regulating the licensing, location, erection, maintenance and conduct of mobile home parks.

Section 7.0216 of the said ordinance provides:

A mobile home parking fee shall be paid by the occupant of each mobile home located in the City of Vermillion whether within a mobile home park or without. Said fee to be paid to the City of Vermillion monthly at the rate of one dollar ($1.00) and shall be due and payable not later than the 15th day of the month following the month in which such fee is assessed.

Said parking fee has been levied and collected since its enactment in 1972.

In a recent audit of the City of Vermillion, the South Dakota Auditor General criticized the collection of this parking fee. In the comments to his audit he stated:

Since the municipality has no authority to charge and collect the $1.00 monthly mobile home parking fee, we recommend that the city (1) cease charging and collecting the parking fee and (2) honor requests for parking fee refunds.

Concerning this, you have inquired whether or not the City of Vermillion has the power to levy a non-ad valorem tax on trailers and mobile homes within the City of Vermillion, as provided in the above section of the municipal ordinance.

I have also reviewed the comments of the Auditor General, particularly noted in page X of his findings, "Municipalities have no inherent taxation powers. No authority, either constitutional or statutory, has been granted municipalities empowering them to collect a personal property tax in addition to that provided by SDCL 10-9-2 and 9-12-11." While the first part of that statement as to the lack of inherent taxation powers on the part of municipalities is correct, I cannot agree with the rest of that statement in view of the enactment by the Legislature of Chapter 190, Laws of 1969 (l0-52). The Auditor General's comments were possibly the result of a misleading title of the municapl ordinance. This section authorizes any incorporated city or town within the state to impose any non-ad valorem tax in accordance with the provisions of that chapter except upon fuel used for motor vehicles.

There can be no doubt that this is a tax, although by the ordinance denominated a fee. The question then is whether it is an ad valorem tax and thus not authorized under SDCL 10-52. "Ad valorem" means according to value and the term "ad valorem tax" means a tax or duty upon the value of the article or thing subject to taxation. Obviously this is not such a tax fixed on the value of the property and therefore is a non-ad valorem tax authorized by 10-52.

Respectfully submitted,

Kermit A. Sande
Attorney General