June 15, 1976
Mr. John D. Manke, Sheriff
Fall River County
Hot Springs, South Dakota 57747
OFFICIAL OPINION NO. 76-62
Residence requirements of deputy sheriff
You have requested an opinion from this office in regard to the following factual situation:
In January, 1971, request was made to the Governor and to the County Commissioners of Fall River County that Mr. X, of Pine Ridge, South Dakota, be appointed Deputy Sheriff for that county. This was granted and he was deputized on January 5, 1971.
Mr. X remained in Pine Ridge for a time, then moved to Oglala and later, in 1972, due to the heavy traffic in the town of Oelrichs from the reservation, I moved him there. Mr. X has continued to vote in Shannon County and claims his residency in that county.
Based on the above facts, you ask:
Is it necessary that Mr. X reside in Shannon County, or may he continue to reside in Fall River County and act as Deputy Sheriff for Shannon County?
SDCL 7-17-6 provides:
In any county to which an unorganized county is attached for judicial purposes, the sheriff shall appoint a deputy who shall be a resident of the unorganized county, and who shall be compensated according to the provisions of § 7-12-9. Such appointment shall be subject to the approval of the Governor.
In my opinion, since Mr. X was a resident of Shannon County at the time of his appointment, and continues to vote in Shannon County and claims that county as his residence, Mr. X is a lawfully appointed deputy under SDCL 7-17-6 even though he now lives in the Town of Oelrichs in Fall River County. Mr. X is living in Fall River County to facilitate his function as deputy sheriff for Shannon County and as long as he continues to view Shannon County as his home and voting residence, it appears to me that he can continue to serve as a deputy sheriff for Shannon County under SDCL 7-17-6.
SDCL 12-1-4 provides for the following criteria for determining voting residence:
For the purpose 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.
In the case of Spurlin v. Siebrasse, et al., 74 S.D. 150, 49 N.W. 2d 604 (1951), and in the case of Appeal of Lawrence County, 71 S.D. 49, 21 N.W. 2d 57, 58 (1945), the South Dakota Supreme Court has held that "a residence is established by personal presence in a fixed and permanent abode with the intent of remaining there." Both physical presence plus the intention of remaining there are necessary to establish residence. In the fact situation you present, it appears that Mr. X was a resident of Shannon County at the time he was appointed and that he continues to consider Shannon County as his residence and that his living in Oelrichs in Fall River County is a proper condition of his new "residence." Accordingly, there does not appear to me to be a violation of SDCL 7-17-6, cited above.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:dk
