August 26, 1983
Mr. Warren R. Neufeld
Secretary
Department of Water and Natural Resources
Foss Building
Pierre, South Dakota 57501
Official Opinion No. 83-28
Costs of Special Election
Dear Mr. Neufeld:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
The South Dakota Board of Water and Natural Resources (South Dakota Conservancy District) at its June meeting received petitions from Lawrence and Meade Counties seeking withdrawal from the Black Hills Conservancy Subdistrict. As SDCL 46-18-11 read at the time, 'the county commissioners of the county, which in whole or in part may be proposed for addition, transfer, or withdrawal, may call a special election to determine the question.' Both county commissions did in fact call a special election for August 30.
The 1983 Legislature amended SDCL 46-18-11, and since July 1, county commissions have no authority to call an election for withdrawal. With this and other statutory revisions affecting subdistrict elections taking effect July 1, there is uncertainty regarding the assignment of election costs.
SDCL 46-18-11 requires areas withdrawing from an existing subdistrict to form a new subdistrict. Lawrence and Meade Counties will do this if an election to withdraw is successful, i.e., a successful election in Lawrence County will result in forming a separate Lawrence County Subdistrict, and a successful election in Meade County will lead to forming a Meade County Subdistrict.
SDCL 46-18-11.2 provides that 'the costs associated with an election for withdrawal, addition, or transfer shall be assigned equally to the involved subdistricts, including a newly formed subdistrict in the event an election to withdraw and establish a new subdistrict is successful.' (1983 Session Laws, Ch. 325, Section 2.)
Based on the above facts, you have asked the following questions:
QUESTIONS:
1. By legally calling an election under the old law, are Lawrence and Meade Counties responsible for costs of the special election, i.e., publishing of notices, payment of election judges and clerks, canvassing of votes, etc.?
2. If SDCL 46-18-11.2 is applicable and both Lawrence and Meade County vote successfully to withdraw, would the Black Hills Subdistrict be responsible for one-half (1/2) of the respective election costs in Lawrence and Meade Counties and the newly formed Lawrence County and Meade County Subdistricts be responsible for one-half (1/2) of the election costs in their respective county?
IN RE QUESTION NO. 1:
The question you have asked involves whether or not an election process which has begun prior to the change of a law mandates that the entire election process be carried out pursuant to the old law or whether a statute which becomes effective during an ongoing process governs all the remaining steps of that process. As a general rule, statutes are not to be given retroactive effect unless there is a clear indication that retroactivity is intended. Matter of Adams, 329 N.W. 2d 882 (S.D. 1983); Johnson v. Kusel, 298 N.W.2d 91 (S.D. 1980).
It is not clear that the situation you have described constitutes a true case of retrospective legislation. See e.g.
Clark Implement Company v. Wadden, 149 N.W. 424 (S.D. 1914). If there is no retroactive effect of the statute it is clear that the new law applies to determine where the election costs lie.
In this case, even if there is a retroactive impact of the new law, I conclude that the new law rules nevertheless. The reason for this conclusion is the general principle that statutes which deal with procedure alone do apply to pending proceedings. The South Dakota Supreme Court accepted this principle in an early case. Dakota Central Telephone Company v. Mitchell Power Company, 188 N.W. 750 (S.D. 1922). Although other jurisdictions are not unanimous in adopting this rule, a majority of states have agreed with South Dakota's position. See generally Crawfis v. Gardner, 237 N.W.2d 509 (Mich. App. 1975); State v. Shiffbauer, 251 N.W.2d 359 (Neb. 1977); Maier Construction, Inc. v. Ryan, 260 N.W.2d 700 (Wis. 1978); Sutherland on Statutory Construction, § 41.04, Vol. 2, 4th Ed. But see Reiling v. Bhattacharyya, 276 N.W.2d 237 (N.D. 1979).
The assignment of election costs for a special election does not involve any vested substantive rights and therefore is procedural. Consequently, I conclude that the enactment of SDCL 46-18-11.2 with an effective date of July 1, 1983, controls the assignment of costs during this special election rather than the law which was in effect prior to July 1, 1983. Therefore the answer to Question No. 1 is NO.
IN RE QUESTION NO. 2:
SDCL 46-18-11.2 provides that the costs shall be assumed equally by the involved subdistricts if the withdrawal and establishment of a new subdistrict is successful. It must be assumed that the Legislature has given the word 'equal' its plain meaning which in this case would mean that each subdistrict shares one-half (1/2) of the cost. Therefore the answer to Question No. 2 is YES, the Black Hills Conservancy Subdistrict would be responsible for one-half (1/2) of the election costs in the Lawrence County election and one-half (1/2) of the election costs in the Meade County election. The new subdistricts would be responsible for the remaining half of the costs of their respective elections.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
