STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 25, 1975

Mr. Arnold C. Jones
Executive Secretary
Pennington County
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 75-165

County tax levy for fire fighting purposes within rural fire protection districts

Dear Mr. Jones:

You have asked my opinion on the following situation:

In the past year Pennington County has, through the procedure prescribed in SDCL 34-31 A, established three (3) rural fire protection districts. Due to individual problems, none of the three have prepared and submitted a budget to the county auditor as directed by SDCL 34-31 A-21 which enables them to levy for the next fiscal year. Counties also have the authority, under SDCL 34-31-3 to levy a tax to fund, among other things, rural fire departments.

It has been Pennington County's practice, in the past, to distribute the funds raised from 34-31-3 to all of the rural fire departments on a need basis while they solicited private donations to complete their budgets. On these facts we submit the following question:

Can the county levy under SDCL 34-31-3 on the property inside a fire district established under SDCL 34-31 A

(a) if the fire district is not levying a tax of its own, or

(b) in addition to a tax levied by the fire district?

County fire fighting levies are controlled by SDCL 34-31-3 and are limited to one mill in addition to other county levy limitations. Such money may only be used for the purposes set forth in 34-31-1,2. Among these purposes is the granting of assistance to certain named political subdivisions within or adjacent to the respective counties.

Rural fire protection districts organized pursuant to SDCL 34-31A are also empowered to make a tax levy of not to exceed one mill per dollar valuation upon the property; such levy is limited to the property in the rural fire protection district. These levies are exclusive of each other and it would be my opinion therefore that the county may make such a levy to carry out its function under 34-31 irrespective of whether the district makes a levy or not. The only restriction on the county levy is that it may not be spread against any property within the limits of any municipality which provides fire protection service. A rural fire protection district although a body politic and corporate (34-31A-16) is not a municipality (9-1-1(1)).

The answer to both questions therefore is YES.

Respectfully submitted,

William Janklow
Attorney General

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