April 26, 1977

Mr. Albert L. Griffiths, Director 
Division of Conservation 
Department of Agriculture 
Anderson Building, 2nd Floor 
Pierre, South Dakota 57501

Official Opinion No. 77-37

Continued construction of project features of Mud Creek Watershed District, Revillo, South Dakota

Dear Mr. Griffiths:

You have requested an opinion from this office based upon the factual situation:

FACTS: 

A certificate of organization for the Mud Creek Watershed District was filed with the South Dakota Secretary of State on January 19, 1967.  Since that time all plans for the completion of project features have been completed on schedule with the exception of one, the lateral around the city of Revillo. 
    
Although all easements pertinent to the completion of the lateral are signed, the Board of Managers of the Watershed District has not yet begun construction of the lateral.  The problem is that the signers of the easement for the N 1/2 of the NW 1/4 of Section 22-118 N, 48 W have since changed their mind about allowing construction on their land. 
    
Recently, the Board of Managers has received pressure from all project sponsors to complete construction of the project feature. The result of such pressure is that all of the Watershed Managers have resigned.

Based on the above facts you ask:

QUESTION: 

Do project sponsors have sufficient responsibility and authority to proceed with the construction of project features in the absence of a Board of Managers?

SDCL 3-4-1 provides that an office becomes vacant upon the resignation of the officer from office.  Article IV, section 3 of the South Dakota Constitution says in part: 
    
Whenever a vacancy occurs in any office and no provision is made by the Constitution or laws for filling such vacancy, the Governor shall have the power to fill such vacancy by appointment.

SDCL 46-24-39 provides that vacancies of unexpired terms of district managers shall be filled by appointment by the remaining managers and such appointees will hold office until the next annual election.

In piecing together the above requirements of law, it is clear that there is not going to be a situation where the Watershed District does not have a Board of Managers.  If there are any remaining Board members to appoint successors pursuant to SDCL 46-24-39, that should be done.  It there are no remaining Board members to initiate procedures under SDCL 46-24-39, then the Governor has authority pursuant to the above-cited section of the South Dakota Constitution to make such appointments.

In reviewing the factual materials you presented, it appears that one of the managers of the Watershed District, Mr. Wold, was a candidate for reelection to his position on the Board prior to the February 28, 1977, meeting.  At that meeting, at which election of Board Managers was to have occurred, Mr. Wold informed the group that he would no longer seek the office for personal reasons.  It further appears that no other person was ever elected to fill the vacancy there created.  In this regard, the provisions of SDCL 3-14-1 are important: 
    
Except when otherwise expressly provided, every lawful incumbent of any public office, with a definite term, upon the expiration of such term shall continue to discharge its duties until his successor shall have been elected or appointed and has qualified, and shall be entitled to receive the prescribed compensation of such office during the time he shall so discharge its duties.

It would appear from the facts available to me that Mr. Wold, by virtue of SDCL 3-14-1, is still a manager of the Watershed District.  This is so even though he was not elected to a new term of office. By virtue of the holdover provisions of SDCL 3-14-1, Mr. Wold would seem to me to still be a manager and by virtue of SDCL 46-24-39 in a position to fill by appointment the remaining managers of the district.

It is possible, however, that Mr. Wold will want to take the same recourse as the other directors involved and resign from his position.  Although the law is somewhat unclear in this regard it does appear that Mr. Wold could accomplish this even though there would literally then be no other members of the Board to accept his resignation.  In that event, the only procedure to follow then would be pursuant to the South Dakota Constitution whereby the Governor would then fill the vacancies created by resignation.

I believe the answer to your specific question is that the Board of Managers has the duty and authority to implement the provisions of Chapter 46-24.  I do not see any reference in that chapter to the project sponsors having any legal authority to proceed with the construction of project features in the absence of a Board of Managers.  The proper approach would be to have the Governor or the remaining managers of the district appoint the necessary persons to the Board of Managers and continue with the Board of Managers conducting the business of the Watershed District.

Respectfully submitted,

William J. Janklow
Attorney General

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