January 3, 1978

Mr. Denis Eckert 
Union County State's Attorney 
Union County Courthouse 
Elk Point, South Dakota 57025

Official Opinion No. 78-1

Effect of Big Sioux Township annexation on status of township officers residing in annexed areas

Dear Mr. Eckert:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

In August of 1977, North Sioux City, South Dakota, passed a resolution annexing certain territory in Big Sioux Township, Union County, South Dakota.  The area annexed constituted approximately fifty percent of Big Sioux Township, both in area and taxable value, and perhaps eighty percent of the population of Big Sioux Township. 
    
Two of the three supervisors of the township board live in the annexed area, and both of the appointed township officers live in the annexed area. All of the township supervisors opposed the annexation.

Based on the above factual situation, you have asked the following specific questions:

QUESTIONS: 

1.  Can a duly elected township supervisor be disenfranchised and be deemed to have forfeited his office, so as to create a vacancy, by reason of his residing in a part of a township that is annexed by a municipality? 
    
2.  Can a duly appointed township officer be deemed to have forfeited his office, so as to create a vacancy, by reason of his residing in a part of a township that is annexed by municipality? 
    
3.  If the answer to either of the above questions is yes, when does the vacancy occur?

IN RE QUESTION NO. 1:

In analyzing whether an annexation which leaves the residence of a township officer outside the newly-drawn township boundaries operates to create a vacancy, SDCL 3-4-1 and SDCL 8-4-11 appear to be controlling.  SDCL 3- 4-1 provides: 
    
Every office shall become vacant on the happening of any one of the following events before the expiration of the term of such office: 
     
. . . . 
     
(4)  His failure to qualify as provided by law; 
(5)  His ceasing to be a resident of the . . . township . . . in which the duties of his office are to be exercised or for which he may have been elected.

SDCL 8-4-11 reiterates these basic rules concerning vacancies in public offices: 
    
Whenever any township fails to elect any township officer, or whenever any person elected to an office fails to qualify, or whenever any vacancy happens in any office from death, resignation, removal from the township, or other cause, the board of supervisors, or a majority of them, shall fill the vacancy by appointment, . . . and the person so appointed shall hold his office until the next annual township meeting and until his successor shall have elected and qualified, and shall have the same power and be subject to the same duties and penalties as if he had been duly elected.

From the foregoing statutes it becomes apparent that a vacancy exists in a township office when the person holding the office no longer qualifies, becomes a nonresident, or is removed from the township.

A.  Failure to Qualify as Provided by Law.

The qualifications for township office are succinctly stated in SDCL 8-4-1: 
    
Every person qualified to vote at a township meeting is eligible to any township office.

In order to be “qualified to vote at a township meeting,” a person must be duly registered to vote pursuant to SDCL 12-4.  SDCL 8-3-7.  A “duly registered” voter is one who possesses the qualifications of an elector and who is registered as a voter in the voting precinct in which he resides.  SDCL 12-4-1.  Although durational residency requirements have been abolished, residency requirements persist.  Therefore, if a township officer ceases to be a resident of the township, he is no longer qualified to vote at a township meeting and is thus ineligible for township office. Residency is determinative.

B.  Nonresidency.

When the annexation decree and map are duly filed with the Register of Deeds, the annexed portion of the township ceases to be a part of the township; it is completely absorbed by the annexing municipality.  SDCL 9-4-11.  Those persons living in the annexed area become residents of the municipality from the moment of annexation, since from that moment they actually do live in the municipality and have no present intention to remove themselves therefrom. SDCL 12-1-4.  At the same time, they lose their residence in the township, albeit in some cases involuntarily.

C.  Removal from the Township.

The Big Sioux Township Board of Supervisors has advanced the contention that only a voluntary removal from the township should operate to create a vacancy in a township office. There is some support for this theory as evidenced by the following dicta from a New Jersey court decision: 
    
In our opinion, a removal out of the township, in order to create a vacancy, must be a voluntary removal.  A removal by operation of law, resulting from an act of the Legislature cutting off the portion of the township, leaving a person out of the township, who, when elected, was a resident within its territory, would not be a 'removal out of the township' within the meaning of §  8 of the act.  State ex rel. Stewart v. Riverside Township, Burlington County, 68 N.J. Law 571, 53 A. 396 (1902).

However, it is my opinion that the better view is that adopted by the courts of New York and Pennsylvania.  In re Collins, 16 Misc. Rep. 598, 40 N.Y.S. 517, 519-20 (1896); Commonwealth ex rel. Boland v. Topper, 219 Pa. 221, 68 A. 666, 667 (1908).  Those jurisdictions take the position that a removal from office may occur either voluntarily, or by operation of law.

D.  Conclusion.

“When residence in the district is lost by operation of law, the tenure of office fails, and the office becomes vacant.” Commonwealth ex rel. Boland v. Topper, supra at 667.  Therefore, the answer to your first question is yes.

IN RE QUESTION NO. 2:

Persons appointed to offices must qualify in the same manner as those elected to offices.  SDCL 3-4-7.  The requirement that one must be an elector in order to hold a township office therefore applies to appointed as well as elected township officers.  87 C.J.S. Towns §  62, p. 58.

Residency in the township is a mandatory requirement for both elected and appointed township officers. Based on the same reasoning applied in answering Question No. 1, it is therefore my opinion that when appointed officers lose their residence in the township by operation of law, their offices become vacant.  The answer to Question No. 2 is also yes.

IN RE QUESTION NO. 3:

Vacancies in office occur “on the happening” of any of the events listed in SDCL 3-4-1.  There is no interim “grace period.”

In this case, the loss of residence in the township by municipal annexation occurred at the time the annexation map and decree were filed with the Register of Deeds.  SDCL 9-4-11. The township offices have thus been legally vacant since the date the annexation map and decree were filed.  The members of the Board of Supervisors have merely been de facto officers since that time. Walnut Township v. Jordon, 38 Kan. 562, 16 P. 812, 813 (1888).

Respectfully submitted,

William J. Janklow
Attorney General

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