August 22, 1977
Mr. Gene Paul Kean
Minnehaha County State's Attorney
Minnehaha County Courthouse
Sioux Falls, South Dakota 57102
Official Opinion No. 77-71
Township meetings and elections
Dear Mr. Kean:
Your request an official opinion on the correct time and procedure for township special elections. This request is based on the following factual situation:
FACTS:
The time for township annual and special elections was formerly found in SDCL 8-3-6 which provided that the election would start between 1:00 and 2:00 p.m. on the day of the meeting. In chapter 78 of the 1976 Session Laws this specific time was deleted.
You ask the following specific questions:
QUESTIONS:
1. May the board of township supervisors set up by appropriate notice and publication the time when the election will be held pursuant to SDCL 8-3-6?
2. Are the general provisions of the election laws under SDCL 12-1, and specifically SDCL 12-1-2, applicable to this type of special election which would require the township to keep their polls open from 8:00 in the morning until 7:00 in the evening?
IN RE QUESTION NO. 2:
Your second question will be dealt with first. Title 12 governs elections in the State of South Dakota.
SDCL 12-2-3 provides that at elections held under Title 12 the polls shall be open from 8:00 a.m. to 7:00 p.m. SDCL 12-1-2 provides:
This title shall apply to townships, municipal, or school elections except as may be otherwise provided by the election statutes provided in Titles 8, 9 and 13, . . . .
Former SDCL 8-3-6 which provided a specific time for the holding of an election at an annual or special township meeting was such an exception as was contemplated by SDCL 12-1-2. It is my opinion that SDCL 8-3-6, as amended, remains an exception provided by Title 8 for purposes of SDCL 12-1-2.
SDCL 8-3-6, as amended, provides:
The electors present at the annual or special township meeting shall be called to order by the township clerk, if there is one present, and if not the electors shall elect one of their number chairman. Such electors shall elect three of their number judges, who shall be duly sworn and be judges of the qualifications of township electors. They shall then proceed to choose one of their number to preside as moderator. The township clerk shall be clerk of the meeting and keep full minutes of its proceedings, in which he shall enter at length every order or direction and all rules and regulations made by the meeting. If the township clerk is absent, then such person as is elected for that purpose shall act as clerk of the meeting.
The fact that there is no longer a specific statutory time at which the meeting shall be held does not negate the provision in the amended statute which provides that the election shall be held at the annual or special meeting. Nor does the amendment negate the statutory procedures found in SDCL 8-3-7 to SDCL 8-3-17 concerning such elections.
Therefore, the answer to your second question is no.
IN RE QUESTION NO. 1:
The answer to your first question is yes. Since SDCL 8-3-6 no longer specifies the time for the election at an annual or special township meeting, the board of township supervisors may set the time. Obviously, the requirements of notice must be met. Since the time of the special election in Clear Lake Township (the subject of this opinion) is not one fixed by law, failure to give the required notice will render it a nullity.
In order to avoid possible confusion by the township voters, if the special election is set for a time other than the formerly required time, you are advised to make a special effort to see that the electors are informed, in fact, of the scheduled time of the election. This would be in addition to the place and purpose of the election as required by SDCL 8-3-3 to 8-3-5, inclusive.
Respectfully submitted,
William J. Janklow
Attorney General
WJJ:JCW:pk
