June 23, 1977

Mr. Vincent J. Protsch 
Attorney at Law 
Mumford Building 
Howard, South Dakota 57349

Official Opinion No. 77-56

Effects of attorney's countersignature on bonds of governmental unit

Dear Mr. Protsch:

You have requested an opinion as to the obligation imposed upon an attorney by the following statutes: 
    
6-8-8. All bonds of every nature issued by any county, municipality, school district, township or other governmental subdivision of the state of South Dakota shall be countersigned by an attorney actually residing in the state of South Dakota and duly licensed to practice therein. 
    
6-8-9. In case such bonds are not countersigned as provided by 6-8-8, such bonds shall be void and unenforceable.

Generally, a countersignature is considered to be a signature of a subordinate attesting to the authenticity of the primary signer. The requirement of a countersignature is a directive from a legislative body and when affixed denotes the complete execution of a document.  (See Words and Phrases, Vol. 10, p. 59.)

Some courts have even held that the act of countersigning is merely ministerial and the failure to countersign pursuant to a legislative authorization does not operate to vitiate the instrument in question.  Town of Mt. Pleasant v. City of Racine, 137 N.W.2d 656.

There are a number of statutes in South Dakota which fit into this definitional category.  For example, SDCL 9-13-18 directs the municipal clerk or auditor, as a function of his appointive office, to countersign all bonds, warrants, etc., of the municipality.

However, to say that SDCL 6-8-8 is to be interpreted similarly would, in my opinion, overlook the intent of the Legislature.  SDCL 6-8-9 very clearly intimates that the countersignature of an attorney is more than a ministerial act.  Further, the signing attorney need not be an officer or employee of the political subdivision (i.e., city attorney) and it, therefore, cannot be said that the attorney is acting in a capacity as a subordinate to the principal signers.  I believe it is reasonable to conclude that the term “countersign” was used in some context other than the normal one.  Just what context was intended is not so easily determinable. Neither the legislative Journals nor the other files available through the Legislative Research Council shed any light on the matter.

By a process of elimination, the best interpretation I can give the statutes in question is that the attorney countersigning the bonds is, in effect, offering an opinion as to the legality of the bond issue.  If interpreted otherwise, the statutes are rather meaningless and unrealistic, since the mere addition of the signature of any attorney licensed in this state does not necessarily add anything.  I take this position fully realizing the counter argument can be advanced that the Legislature could have easily said an attorney must issue an opinion as to the legality of each bond issue if that is what it intended.

I am aware of at least one other similar statutory provision. SDCL 58-25-16 requires that no foreign insurance company shall issue a title insurance policy in this state without the countersignature of a resident abstractor.  The State Association of Abstractors, upon advice of counsel, has taken the position that the countersigning abstractor assumes joint and several liability on the policy and has advised all abstractors accordingly.  I am not here commenting on the position taken by the abstractors but merely illustrating the point that they have chosen to interpret “countersign” other than in its plain and ordinary sense.

Subject to legislative clarification, it is my opinion that the attorney's signature goes to the substance of the bond issue and is not merely a procedural requirement.

Respectfully submitted,

William J. Janklow
Attorney General

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