August 23, 1976
Ms. Lynn A. Moran
State's Attorney
Custer County Courthouse
Custer, South Dakota 57730
OFFICIAL OPINION NO. 76-77
SDCL 34-10-9, pertaining to hospital district formation
Dear Ms. Moran:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
A question has arisen in regard to the proper interpretation of SDCL 34-10-9 as regards a hospital district formation. The special election for the county-wide hospital district for Custer County will be held on Wednesday, August 18, 1976, and the County Commissioners must certify the results within 10 days from that date.
The questions you ask are:
QUESTIONS:
Does SDCL 34-10-9 require a 60% majority of all those people voting or does it require a 60% majority in each precinct? Also, if each precinct must vote for the district by a 60% majority, what is the effect of one or more precincts' failing to cast 60% vote even if the overall vote exceeds 60%?
SDCL 34-10-9 provides:
In the event that sixty per cent of the votes cast in each voting precinct or portion thereof, which is included in the proposed district, are in favor of the creation and establishment of said public hospital district, the board or boards of county commissioners shall within ten days after the election, by resolution certify such result and proceed with the organization of such district as specified by this chapter.
In my opinion, the above cited statute requires that for the district to be established, each voting precinct or portion thereof, which is included in the proposed district, must vote in favor of the proposal by at least sixty percent (60%) majority of the votes cast. If the Legislature had intended a sixty percent (60%) majority of all those voting, they could easily have so provided. In my opinion, the fact the language of SDCL 34-10-9 refers to sixty percent (60%) of the votes cast in each precinct being required indicates that the Legislature did not contemplate a sixty percent (60%) majority of all those voting being the standard.
In regard to your second question, it appears to me that if one or more of the precincts fails to cast a sixty percent (60%) vote for the district, the effect is that the proposal is defeated. I do not necessarily believe that this is wise or reasonable legislation, but I believe that is the effect of what the Legislature has enacted in SDCL 34-10-9. The law may need change and reconsideration in this matter, but that is within the scope and responsibility of the Legislature, not the Attorney General. On its face, the above cited statute can lead me to no other reasonable conclusions than those expressed herein.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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