VAN EMMERIK v. STATE

No. 13086.

298 N.W.2d 804 (1980)

Larry VAN EMMERIK, for himself and all others similarly situated, Plaintiff and Appellant, v. The STATE of South Dakota, David Volk, State Treasurer of South Dakota; Steven J. Zellmer, Secretary of Revenue, the State of South Dakota, and Montana-Dakota Utilities Co., a corporation and Northern States Power Company, a corporation for themselves and all individuals, partnerships, Associations, or corporations who or which have since January 1, 1976, engaged in the sales, furnishing or service of gas, electricity, or water to consumers or users in the State of South Dakota, Defendants and Appellees.

Supreme Court of South Dakota.

Decided November 19, 1980.


Attorney(s) appearing for the Case

George A. Bangs, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, Gale E. Fisher, Sioux Falls, for plaintiff and appellant.

Walter W. Andre, Asst. Atty. Gen., Pierre, for defendant and appellee, State of South Dakota; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, for defendants and appellees, Montana-Dakota Utilities and Northern States Power Co.

Leo P. Flynn, Milbank, for amicus curiae South Dakota Rural Electric Association.


FOSHEIM, Justice.

This is a class action brought by Larry Van Emmerik (appellant) for himself and on behalf of all residents of South Dakota who, since January 1, 1976, have paid a four percent sales tax on their gas and electric utility bills. From the circuit court's order of dismissal, this appeal is taken. We affirm in part, reverse in part, and remand.

The action originally sought a one percent refund from the State of South Dakota and from all retailers...

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