June 4, 1976

Mr. Roland E. Grosshans
State's Attorney
Fall River County Courthouse
Hot Springs, South Dakota 57747

OFFICIAL OPINION NO. 76-58

Increasing number of county commissioners from three to five does not necessitate districting

Dear Mr. Grosshans:

You have requested an opinion based on the following factual situation:

At the present time there are three Fall River County Commis­sioners who run at large and this has been the situation for some years last past. Recently, citizens of Fall River County petitioned, pursuant to SDCL 7-8-3, to have the number of County Commis­sioners increased from three to five. This issue will be on the ballot and the ballot will read as mandated by SDCL 7-8-4 at the next primary election. SDCL 7-8-6 indicates at first glance that it is man­datory, that within ten days from the election, if the issue has car­ried increasing from three to five, that the three man board of com­missioners redistrict into five districts. SDCL 7-8-10 indicates that in 1982 they could then choose to have commissioners run at large.

You then raise the following question:

When the commissioners in the past have been at large and the peo­ple have petitioned for an increase from three to five, is it man­datory to go back to the district system or can the commissioners elect and choose to still have the commissioners run at large as they have the power to do pursuant to 7-8-10?

The following statutes as cited in your request, are relevant and provide:

7-8-3. The number of county commissioners of any county may be increased to five or reduced to three in the manner following:
Whenever the legal voters of the county, equal in number to twenty per cent of the votes cast for Governor in the county at the preceding general election, petition the board of county commis­sioners for an increase in the number of county commissioners, said board shall submit the question to a vote of the electors of the county at an election to be held at the next primary election. Notice of the submission of such question shall be given in the notice of such primary election.

7-8-6. When at such election a majority of all votes cast is for an in­crease from three to five commissioners, it shall be the duty of such board within ten days after the votes have been canvassed to redistrict the county into five districts numbered from one to five . . .

7-8-10. It shall be the duty of the board of county commissioners at its regular meeting in January, 1972 and every ten years thereafter, after giving notice by publication for one week in the official newspapers of the county, to change the boundaries of the commis­sioner districts whenever such change shall be necessary in order that each district shall be as regular and compact in form as prac­ticable and it shall divide and redistrict its county that each district may contain as near as possible an equal number of electors, as determined by the master registration list of the county; or the board may, at its discretion, choose to have all of its commissioners run at large.

A review of the legislative history of the above provisions reveals that the concept of commissioners elected at large was enacted into law in 1966 (SL 1966, chapter 22). However, the other statutes relating to changing the number of commissioners were not and have not been since amended. Therefore, the procedures outlined in SDCL 7-8-3, et seq., do not con­template or provide for a situation where the commissioners are elected at large.

For example, SDCL 7-8-6 requires a "redistricting" within ten days after the canvas. This necessarily presumes that districts existed prior to the elec­tion changing the number of commissioners.

For this reason, it is my opinion that should the voters of Fall River County decide to increase the number of commissioners from three to five, the said five commissioners shall be elected at large at least until 1982. At such time the commissioners, pursuant to SDCL 7-8-10, may determine if the county shall be districted. The Legislature has determined that redistricting or changing to an at large system is to be done only once every decennium. For me to hold that the voters by petition and election could require the com­missioners to effectuate a change at any time would be inconsistent with and contrary to the intent of the law.

In my opinion, the answer to your question is NO. It is not mandatory that districts be established and the commissioners should run at large until at least 1982.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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