November 29, 1976
Mrs. Patricia Walder
Office of County Auditor
Codington County Courthouse
Watertown, South Dakota 57201
OFFICIAL OPINION NO. 76-111
Right of elected official to succeed appointee following general election
Dear Mrs. Walder:
You have requested an official opinion from this office based upon the following factual situation:
FACTS:
A County Commissioner from Codington County was elected to a four year term commencing in January of 1975. Approximately one year ago, that Commissioner resigned from office for health reasons and one Harry Bergan was duly appointed to fill the vacancy. Said Harry Bergan and one Edward Spevak were candidates for the position in the recent general election, and according to the official canvass, Spevak was elected. On the Tuesday following the election, Spevak appeared at the County Commission meeting and the Commission denied his request to take office at that time.
Based on the foregoing facts, you ask:
QUESTION:
When is the newly-elected Commissioner entitled to replace the appointee and assume office?
It has been uniformly recognized in South Dakota that an officer appointed to fill a vacancy holds office only until the next general election when a successor can be elected. See State ex rel. Rerick v. Board of County Commissioners, 34 S.D. 256, 145 N.W. 548 (1914); Official Opinion No. 72-34; 1939-40 AGR 494; and Official Opinion No. 75-74. Thus, an individual elected to replace the appointee is entitled to possession of the office as soon as he is officially elected and qualified.
With respect to the precise time that the successor takes office, it should be noted that a person is considered "elected" when he is declared the winner and receives a certificate of election from the proper authority. See Annotations, 8 ALR 620 and State ex rel. Erickson v. Magie, 193 Minn. 60, 235 N.W. 526 (1931). In South Dakota, pursuant to SDCL 12-20-4, it is the responsibility of the county auditor to declare the winner for county offices by preparing and delivering a certificate of election to the person with the highest number of votes. Thereupon, the individual is entitled to "qualify" for office by taking the oath and posting the bond required by SDCL 3-1-6.
Therefore, in answer to your question, it is my opinion that the newly elected commissioner should be permitted to qualify and assume office as soon as he/she receives the certificate of election from the county auditor.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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