October 19, 1978

Mr. Vern Butler, Secretary 
Department of Natural Resource
  Development 
Joe Foss Building 
Pierre, South Dakota 57501

Official Opinion No. 78-50

Separate election districts within the Conservancy Subdistrict

Dear Mr. Butler:

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

FACTS: 

At a special meeting of the Board of Natural Resource Development held in Pierre on August 30, 1978, the Board accepted separate petitions from the township of Franklin in Jerauld County, excluding the Town of Lane; the City of Artesian, the City of Letcher, and the Townships of Benedict, Diana, Elliot, Floyd, Jackson, Letcher, Logan, Silver Creek, Twin Lakes, Union, Warren and Woonsocket.  Petitions from the Town of Lane in Jerauld County, and the City of Woonsocket and the Townships of Afton, Butler, and Ravinia in Sanborn County, were not accepted as they lacked the sufficient signatures. Each municipality and each rural area of each township filed a separate petition to join the Lower James Conservancy Subdistrict. 
    
The Board of the Lower James Conservancy Subdistrict had passed a resolution to accept any areas of Jerauld and Sanborn Counties which petitioned and voted to join the subdistrict. 
    
SDCL 46-18-2 states:  Twenty-five per cent of the owners of real property in each separate geographical area within the district, as shown by the records in the offices of the register of deeds of the county wherein such real property is situated, may petition the district board to submit to an election, as hereinafter provided, the question of whether such geographical area shall become a subdistrict. . . .
    
SDCL 46-18-7 states:  Any municipality included within the area comprising a proposed subdistrict shall constitute a separate election district.  That area of any county wholly or partially included in a proposed subdistrict, and which is outside the corporate limits of a municipality, shall also constitute a separate election district. . . . 
    
SDCL 46-18-11 states:  Areas may be added to and become a part of an existing subdistrict by an affirmative vote of at least sixty per cent of the votes cast on the question as to such addition in the area proposed for such addition. . . .
    
The statute does not define “geographic area” or “area.”  As the township is the smallest political definable geographical area other than a municipality, I advised the staff that petitioning in by township would be the easiest way to determine the “geographical area.”  Originally, when the subdistricts were formed, all rural areas of counties, except for Marshall, petitioned in as entire counties.  Marshall petitioned in as an area comprised of several townships (the other townships were an Indian reservation), and its election was judged on sixty percent of the vote of all the townships together and not on a township-by-township basis.

Based upon the above facts, you have asked the following question:

QUESTION: 

Does the language “area of any county wholly or partially included in a proposed subdistrict . . . shall also constitute a separate election district” in SDCL 46-18-7, mean that each geographical area which petitioned into the district and is outside a municipality is a separate election district, or are all the rural areas in each county which petitioned to be included to be combined into one election district per county?

As pointed out in your opinion request, the statutes do not define the terms “geographical area” in SDCL 46-18-2, or “area” in SDCL 46-18-7 and SDCL 46-18-11.  Given the fact that the petitioning has been by township, it would appear to me that reference in SDCL 46-18-2 to a separate geographical area would be interpreted as being a reference to the township which had petitioned.  Further, it would be my opinion that the reference in SDCL 46- 18-11 to the addition of areas to a subdistrict upon an affirmative vote of at least sixty percent of the votes cast of the question in the area proposed for such addition, would have reference to the same separate geographical area, i.e. the township, not the total area of the proposed subdistrict excluding municipalities under SDCL 46-18-7.

In answer to your question, it is my opinion that each area which petitions is an area for purposes of SDCL 46-18-11 and that all rural areas in each county which petition are not combined into one election district per county by virtue of SDCL 46-18-7.

Respectfully submitted,

William J. Janklow
Attorney General

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