October 28, 1982

Mr. Carl Ham 
South Dakota State Senator 
Caputa, South Dakota 57725

Official Opinion No. 82-57

Maximum mill levies for rural fire protection districts

Dear Senator Ham:

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

FACTS: 

The Rapid Valley rural fire district was formed under SDCL Ch. 34-31A.  Since 1975 it has been submitting an annual budget to the Pennington County Auditor as required by SDCL 34-31A-21 and has received a tax levy not exceeding one mill for maintenance of the fire district.

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

QUESTION: 

Since SDCL 34-31A-21 allows for a tax levy not to exceed one mill for maintenance of a rural fire protection district and SDCL 34-31A-22 allows for up to a one mill levy for the purchase of rural fire fighting equipment, is a county auditor legally obligated to collect a tax levy of up to two mills when a budget is submitted by such a district to the county auditor for maintenance and for fire fighting equipment?

The two statutes which are at the focus of your question are set out as follows: 

SDCL 34-31A-21:  The estimate provided by §  34-31A-20 shall be certified by the president and secretary to the proper county auditor or county auditors, on or before January thirty-first of each year, who shall levy a tax not to exceed one mill upon the taxable property within said district for  the maintenance of the fire protection district for the fiscal year as provided by law. 

SDCL 34-31A-22:  The rate of tax for functions pursuant to this chapter shall not exceed for the purchase of rural fire-fighting equipment in rural fire districts which may be organized upon petition of a majority of the electors, comprising an area of one or more townships, or for the purpose of assisting and contributing to the purchase and upkeep of fire-fighting equipment in adjoining cities or villages, one mill per dollar valuation upon the property in such rural fire district.

It is clear from a reading of these statutes that the tax levies for maintenance of the fire protection district and for the purchase of rural fire-fighting equipment are separate and distinct tax levies.  Therefore, the answer to your question is Yes; a county auditor may be legally obligated to collect a tax levy of up to two mills if the budget submitted to the auditor calls for a one mill levy for maintenance of the district and that budget also calls for a one mill levy for the purchase of fire-fighting equipment for the district.

Respectfully submitted,

Mark V. Meierhenry
Attorney General