October 17, 1980

Mr. William R. Oliver 
Vice Chairman 
West Brown Irrigation District 
Warner, South Dakota 57479

Official Opinion No. 80-65

1980 West Brown Irrigation District Elections

Dear Mr. Oliver:

You have requested an official opinion from this office in regard to the following factual situations:

FACTS IN RE QUESTION NO. 1: 

According to South Dakota law, each prospective candidate for director must own at least 35 acres in the district.  A landowner in the district filed a nominating petition with the Board attesting that he met qualification requirements, and provided the Board with aerial photographs from the ASCS Office which shows he owns approximately 40-50 acres within the legal boundaries of the district. 

The district has an assessment list of the land assessed in the district.  This list, apparently, was based on estimated acreage. The list shows 30 acres in the name of the candidate.  The Irrigation Board received an opinion from its attorney that if the man could prove he owns more than 35 acres in the legal boundaries of the district, he could not be denied an opportunity to run for election, and it was not his fault if the district had been assessing him for less than that amount.  The Board accepted the petition and certified him as a candidate, September 30, 1980.

FACTS IN RE QUESTION NO. 2: 

Under the law, each voter must be the owner of at least 35 acres of land and must also be a resident of South Dakota.  An elector challenged several  names on the proposed voters list for Division #1 as not meeting residency requirements.  The County Assessor and Register of Deeds Offices show the people as owning land in the Irrigation District but shows their addresses as being outside South Dakota.  One couple lives in Arizona most of the year but are registered to vote in Brown County and come back often during the summer months.  The other couple is no longer registered to vote in Brown County, and their last address shown was Ashley, North Dakota.  They are missionaries who have since returned to Africa.

Based on the above facts, you ask the following questions:

QUESTIONS: 

1.  Was the action of the Irrigation Board accepting the petition and certifying the candidacy on September 30, 1980, appropriate? 

2.  Can persons who own land in the district and live outside South Dakota under these conditions vote in Irrigation District elections?

IN RE QUESTION NO. 1:

SDCL 46-12-2 states, in pertinent part: 

The term 'elector' . . . shall mean any resident of this state owning not  less than thirty-five acres of land within any district. . . .

Therefore, it is my opinion that the action of the board in certifying the September 30, 1980, candidacy was appropriate if the candidate, in fact, owns 35 or more acres within the district and was not appropriate if the candidate, in fact, does not own 35 or more acres within the district.  That is to say, in my opinion the relevant fact is what the candidate owns rather than what the district's assessment list contains.

IN RE QUESTION NO. 2:

SDCL 46-12-2 states, in pertinent part: 

The term 'elector' . . . shall mean any resident of this state. . . .

The issue then is what is meant by the phrase 'resident of this state' as it is used in § 46-12-2.

SDCL 2-14-4 states, 'Whenever the meaning of a word or phrase is defined in any statute such definition in applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears.'  SDCL 46-12-21 states 'Such election and the canvassing of the returns shall be conducted in accordance with the general election laws of the state for the election of county officers.'  It is therefore my conclusion that Constitutional Article VII, §  2, SDCL 12-1-4 and SDCL 12‑14-4.4 and 12-4-4.5  are the applicable statutes.

Constitutional Article VII, §  2 provides: 

Each elector who qualified to vote within a precinct shall be entitled to vote in that precinct until he establishes another voting residence.  An elector shall never lose his residency for voting solely by reason of his absence from the state.

SDCL 12-1-4 provides: 

For the purposes of this title, 'residence' shall be the place in which a person has fixed his habitation and to which, whenever he is absent, he has the intention of returning. 

A person who has left his home and gone into another state or territory or county of this state for a temporary purpose only shall not be considered to have lost his residence. 

A person shall be considered to have gained a residence in any county or city of this state in which he actually lives, providing such person has no present intention to remove himself therefrom. 

If a person moves to another state, or to any of the other territories, with the intention of making it his permanent home, he shall be considered to have lost his residence in this state.

SDCL 12-4-4.4 provides: 

Any overseas citizen shall have the right to register and vote in any  federal, state, county or local election held within South Dakota under the following conditions: 

(1)  The overseas citizen or the spouse of the overseas citizen was last domiciled in South Dakota immediately prior to departure from the United States. 

(2)  The overseas citizen does not maintain a domicile, is not registered to vote and is not voting in any other state. 

(3)  The overseas citizen is otherwise qualified to vote according to law.

SDCL 12-4-4.5 provides: 

The overseas citizen shall be allowed to register and vote absentee in the same county and election precinct in which the overseas citizen or spouse of the overseas citizen resided immediately prior to leaving the United States.

In view of the foregoing provisions, it is my opinion that persons who maintain their voting residence in South Dakota while wintering in Arizona are eligible to vote in South Dakota elections.  It is further my opinion that the missionary couple may vote if they have satisfied § § 12-4-4.4 and 12-4-4.5.  Insofar as their last known address was in North Dakota and insofar as the circumstances of their stay in North Dakota are not stated, I am unable to determine whether they can vote in the present election.  I suggest application of § § 12-4-4.4 and 12-4-4.5 to the specific facts of their situation.

Respectfully submitted,

Mark V. Meierhenry
Attorney General