March 12, 1976
Mrs. Ruth Humphries
Brown County Auditor
Brown County Courthouse
Aberdeen, South Dakota 57401
OFFICIAL OPINION NO. 76-31
Procedure for incorporation of municipalities
Dear Mrs. Humphries:
You have presented the following questions relating to the initial election of officers pursuant to incorporation of a municipality under SDCL 9-3.
1) In view of the repeal of SDCL 9-3-15 and 9-3-16, what procedures for nomination and election of the initial officers are to be followed:
2) Does the County Auditor handle the election of officers?
3) Is the new municipality required to hire law enforcement officers?
The procedure for incorporation of municipalities is found in SDCL 9-3. SDCL 9-3-9 et seq. provides for an election on the question of incorporation and at the same time the election of three inspectors to supervise said election and canvas the vote. SDLC 9-3-17 then requires a subsequent election of certain officers without providing criteria for nominations, qualifications of candidates, etc.
Therefore, it is my opinion that SDCL 9-13-14, which reads as follows is applicable:
Every special election authorized by law shall be held upon the same notice, at the same polling places, be conducted, returned, and canvassed, and the result declared as provided herein for the annual municipal election.
The notice of such special election shall state any questions to be voted upon.
(See also 1953-54 AGR 13.)
Since an election of officers is a special election, those procedures not specifically provided for in SDCL 9-3 should be conducted in the manner specified in SDCL 9-13. For example, since there is no notice requirement in SDCL 9-3 (having been repealed in 1974), notice of election should be given pursuant to SDCL 9-13-13.
With regard to your Question No.2, I am of the opinion that the three inspectors, elected pursuant to SDCL 9-3-9 are in charge of the election of officers. The rationale for said determination is found in the provisions of SDCL 9-3 when examined cumulatively. First, the inspectors designate one of their number as clerk. (SDCL 9-3-9.) Second, pursuant to SDCL 9-3-18, the inspectors canvass the votes and determine who is elected to each office. In my opinion, it logically follows that the inspectors should also handle the other administrative and supervisory functions associated with the election. The role of the county auditor in such election is that of chief registration official. (SDCL 12-1-4 (12) and SDCL 12-4-2.)
The answer to your Question No.3 is found in SDCL 9-14-1 which provides:
In cities there shall be appointed an auditor, treasurer, attorney, engineer, assessor, chief of police, policeman, and such other officers as may be provided for by ordinance. In towns there shall be appointed an auditor, treasurer, assessor, marshal and an overseer of highways. In cities and towns, the assessor shall be appointed not later than thirty days prior to the legal assessment date and he shall hold office for one year and until his successor is appointed and qualified. By resolution of the governing board of a municipality the board may choose to appoint a finance officer instead of an auditor or clerk and treasurer. The finance officer shall perform all of the duties of the auditor or clerk and treasurer as provided by law and, except where duplicate records are required, only one set of records will be necessary. The finance officer shall be bonded in the same amount as is required by law for the treasurer.
The Legislature has mandated that municipalities have certain officers to provide services and manage the affairs of the city. Law inforcement personnel are included therein and must be appointed, or like services arranged for by the governing body pursuant to SDCL 1-24.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:LLV:dk
