July 17, 1980

Mr. William J. Ellingson 
Moody County State's Attorney 
Flandreau, South Dakota 57028

Official Opinion No. 80-42

Motor vehicle registration fee

Dear Mr. Ellingson:

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

FACTS: 

Motor vehicle registration fees are collected at the county treasurer's office.  A portion of the fee collected is forwarded to the State of South Dakota, while the remaining portion is kept in the county.  Occasionally, an overpayment is made or a payment is later discovered to have been paid by a bad check.

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

QUESTION: 

When an overpayment of a motor vehicle registration fee has been collected, or where a motor registration fee has been paid by a bad check, how can a county obtain a refund of the state's share of the fee after it has been forwarded to the state?

SDCL 32-5-24 provides: 

The department of public safety is hereby authorized to issue to the several county treasurers authorizations to refund to the lawful owner of any motor vehicle from current collections of motor vehicle license fees for overpayments, past or future, paid by such owner for any license plate fees. Such refunds shall be paid out of the motor vehicle fees collected by the various county treasurers, and accounted for in accordance with the existing  provisions of the motor vehicle licensing law.

Thus, according to 32-5-24, refunds for overpayments are authorized.  The procedure is for the county treasurer, following receipt of a written authorization from the Department of Public Safety, to pay a refund from current collections.  The county treasurer then receives a refund from the state by adjusting the balance on the next succeeding monthly statement prescribed by SDCL 32-11-22.

It should be noted, however, that SDCL 32-5-24 only authorizes refunds for overpayments.  It is my opinion that payments made by bad checks are not overpayments as contemplated by SDCL 32-5-24, and, therefore, a refund from the state to the county is not in order.

Respectfully submitted,

Mark V. Meierhenry
Attorney General