A nonresident had property in Clay County that was assessed and taxed, but the tax was never paid. He moved out of South Dakota. Can the county treasurer sue him under the long-arm statute, and can service be made by publication and certified mail instead of personal service?
Plain-English summary
In 1966 a South Dakota county tax official wrote the Attorney General about a familiar collection problem. A nonresident (designated "X" in the request) had owned personal property in Clay County. The property had been assessed and taxed. The tax was never collected. X then removed the property from the state and moved to "state A." With nothing left in South Dakota to seize and no resident to summon for personal service, could the county still pursue the unpaid tax?
The AG answered yes on both the jurisdictional and procedural questions.
On jurisdiction, the AG combined two statutes. The first was the recently enacted long-arm statute, Chapter 163 of the 1965 Session Laws. Section 2 of that act extended South Dakota court jurisdiction over any person whose cause of action arose from "the ownership, use, or possession of any property, or of any interest therein, situated within this state." X's prior ownership of taxable property in Clay County squarely fit. The second was SDC 1960 Supp. 57.1026, which expressly authorized the county treasurer to bring a civil action for unpaid personal property taxes "against such person for the recovery of such unpaid taxes," with venue in the county where the tax was of record "regardless of the residence of the parties," and which let the treasurer pursue the action against nonresidents and (with county commissioner approval) in another state's courts or in federal court.
Read together, the long-arm statute supplied the personal jurisdiction and SDC 57.1026 supplied the cause of action. The county treasurer could file the lawsuit in Clay County Circuit Court.
On service of process, the AG quoted Section 3 of the long-arm act: "Service of process upon the persons subject to this act may be made by service outside this state in the same manner provided for service within this state with the same force and effect as though service had been made within this state." So the treasurer could effect service on X in state A using whatever methods were authorized for in-state service. The AG flagged that after July 1, 1966, the brand-new South Dakota Rules of Civil Procedure would govern what those methods were; the prior code-of-civil-procedure rules governed before that date.
The treasurer also had a related authority under SDC 57.1026 to "employ assistance outside of this state to collect such delinquent taxes" (with the county commissioners' approval) and to pay a commission for that out-of-state work. That gave the county a second option: hire local counsel in state A rather than pursuing the case from Clay County.
Currency note
This opinion was issued in 1966. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The 1965 long-arm statute has been superseded by modern SDCL chapter 15-7 (long-arm jurisdiction). SDC 57.1026 has been renumbered into the modern SDCL Title 10 (taxation). Service-of-process rules have been substantially restructured under the modern SDCL Title 15 and the South Dakota Rules of Civil Procedure. Tax collection actions against nonresidents are also subject to current due-process limits from federal case law and the modern Federal Rules of Civil Procedure.
What the opinion meant at the time
For county treasurers in 1966, the opinion was an enabling one. It confirmed that the new long-arm act, although passed only the year before, was strong enough to pull former residents back into South Dakota courts for tax-collection purposes. Treasurers no longer had to write off unpaid personal property taxes when the taxpayer moved away.
For county commissioners, the opinion meant a procedural decision. They could approve out-of-state counsel under SDC 57.1026, sending the collection work to a lawyer in the debtor's new state. Or they could let the treasurer pursue the action in Clay County Circuit Court using the long-arm statute. Each approach had cost and enforcement tradeoffs; the legal authority for either was now clear.
For former-resident defendants, the opinion narrowed the available defenses. Moving out of state did not, by itself, defeat South Dakota's jurisdiction to enter a money judgment for unpaid personal property tax. Once the property was assessed while the defendant owned it in South Dakota, the tax liability followed the person, and the courts could reach the person under the long-arm act.
For civil procedure practitioners, the opinion flagged the July 1, 1966 transition date when the South Dakota Rules of Civil Procedure took effect. Service methods before and after that date were not identical; counsel had to consult the right rule depending on when service was attempted.
Common questions
Q: Did the long-arm statute apply retroactively to property ownership predating its passage?
A: The opinion answered yes implicitly by treating X's earlier ownership as enough to support jurisdiction. The cause of action (unpaid tax) was the trigger; as long as that cause of action existed when the long-arm act was in force, jurisdiction could be invoked even if the ownership predated 1965.
Q: What if X had only briefly owned property in Clay County?
A: The statute did not have a minimum-duration requirement. "Ownership, use, or possession" of property "situated within this state" was the textual trigger. Brief ownership that produced an assessed tax would meet the requirement.
Q: Did due process limit the long-arm reach?
A: The opinion did not discuss federal due process, but the U.S. Supreme Court had by 1966 already developed the "minimum contacts" framework from International Shoe (1945) and refined it in subsequent decisions. Property ownership and a related cause of action would meet the minimum-contacts standard for state court jurisdiction.
Q: Could the same approach be used for real property tax delinquencies?
A: The opinion focused on personal property tax under SDC 57.1026. Real property tax remedies were different (typically tax sale, with the land itself as security). The long-arm statute could in principle reach a former owner of real property, but the more direct remedy for real property tax delinquency was the property-based one.
Q: What did "publication and certified mail" mean as a service method?
A: Pre-July 1, 1966, South Dakota's code of civil procedure permitted certain forms of substituted service when personal service was impractical, typically by publishing the summons in a newspaper for a set number of weeks plus mailing it by certified or registered mail to the defendant's last known address. After July 1, 1966, the Rules of Civil Procedure governed; the comparable provisions had analogues but the precise mechanics changed.
Q: Could the county recover its costs and attorney's fees in such an action?
A: SDC 57.1026 contained a provision for paying out-of-state collection assistance "a commission of not to exceed [unspecified percentage]," suggesting the legislature contemplated some recovery of collection costs. Whether attorney's fees could be recovered from the defendant directly depended on other tax-collection provisions and the court's general fee-shifting rules.
Background and statutory framework
Long-arm statutes were a mid-twentieth-century innovation that let states extend personal jurisdiction beyond resident defendants. The federal constitutional framework, articulated in International Shoe Co. v. Washington, 326 U.S. 310 (1945), permitted such reach as long as the defendant had "minimum contacts" with the forum state and exercising jurisdiction did not offend "traditional notions of fair play and substantial justice."
By 1965 most states had enacted some form of long-arm statute. South Dakota's Chapter 163 of the 1965 Session Laws was the state's version, listing specific acts that subjected a person to court jurisdiction, including the property-ownership trigger relied on in this opinion.
SDC 57.1026 was an older statute (the 1960 Supp. designation indicates it was in the 1960 Supplement to the SDC), giving county treasurers a civil action remedy for unpaid personal property taxes. Without the long-arm statute, that remedy was limited to defendants who could be served in South Dakota. The 1965 long-arm act expanded the universe of reachable defendants without amending SDC 57.1026 itself.
The transition to the South Dakota Rules of Civil Procedure on July 1, 1966 was a generational shift. The prior code-pleading system had been in place for decades. The new Rules, modeled on the Federal Rules of Civil Procedure, modernized service, pleading, discovery, and motion practice. The AG's flag on the July 1 effective date was a practical reminder that procedural answers depended on which rule set applied at the moment of service.
The opinion did not get into the question of whether South Dakota courts' judgments would be recognized and enforced in state A. Under the Full Faith and Credit Clause and state-court enforcement statutes, a properly entered South Dakota judgment was enforceable in other states, but the practical enforcement (locating assets, obtaining writs) would happen under state A's procedures.
Citations and references
Statutes:
- Chapter 163 of the 1965 Session Laws (long-arm statute)
- Section 2, Chapter 163, 1965 Session Laws (property-ownership jurisdiction)
- Section 3, Chapter 163, 1965 Session Laws (out-of-state service)
- SDC 1960 Supp. 57.1026 (county treasurer's civil action for unpaid personal property taxes)
- South Dakota Rules of Civil Procedure (effective July 1, 1966)
Source
Original opinion text
Taxation. "Long Arm" statute and county property taxes owned by a non-resident.
You have requested an official opinion of this office based on the following factual situation:
"X, a non-resident, had certain personal property located in Clay County which was duly assessed and taxed. No tax was collected on this property and X has subsequently removed it and has no other property located in the state. X is now a resident of the state of A."
Two questions are presented:
"1. Can an action be commenced under the 'Long Arm statute, Ch. 163 of the 1965 Session Laws?"
I am of the opinion that an action can be commenced under Ch. 163 of the 1965 Session Laws used in conjunction with SDC 1960 Supp. 57.1026.
Chapter 163 of the 1965 Session Laws provides in part as follows:
"Section 2. Subject to jurisdiction. Any person is subject to the jurisdiction of the courts of this state as to any cause of action arising from the doing personally, through an employee, or through an agent, of any of the following acts: (3) the ownership, use, or possession of any property, or of any interest therein, situated within this state."
SDC 1960 Supp. 57.1026 provides as follows:
"When any personal taxes heretofore or hereafter levied shall stand charged against any person, and the same shall not be paid within the time prescribed by law, the county treasurer whose duty it is to collect such taxes, in addition to any other remedy provided by law for the collection of such personal taxes, is expressly authorized to enforce the collection thereof by a civil action in the Circuit Court of his county, in his name as such treasurer, against such person for the recovery of such unpaid taxes. The venue of such action shall remain in the county where the tax is of record regardless of the residence of the parties and such action may be so maintained against nonresidents of the state. The county treasurer may also, upon securing approval of the board of county commissioners institute and maintain such an action in another state or in the federal courts, at his election..."
"When any person having delinquent personal property taxes charged against him leaves the state and establishes residence outside the state, the board of county commissioners of the county wherein such taxes were levied, shall be authorized to employ assistance outside of this state to collect such delinquent taxes, and to pay out of the funds of the county for such collection services a commission of not to exceed..."
"2. If an action can be commenced, can service be made publication and certified mail or must it be done by personal service?"
This question can be answered by quoting Section 3, Chapter 163, Session Laws of 1965. "Service of process upon the persons subject to this act may be made by service outside this state in the same manner provided for service within this state with the same force and effect as though service had been made within this state." It should be noted that after July 1, 1966, the South Dakota Rules of Civil Procedure will be effective and will govern the standards necessary for service "within" the state.