January 29, 1975
The Honorable Lorna B. Herseth
Secretary of State
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-11
Responsibility for Clerk of Court records
Dear Mrs. Herseth:
You have asked for an official opinion based on the following fact situation:
SDCL 37-11-3 requires that the Secretary of State must keep a register pursuant to 37-11-1 and 2 and file verified statements submitted by businesses for profit as described under these sections. This duty, previous to January 7, 1975, was performed by the Clerk of Courts on a county level and the register of names, in some counties begins in 1884. The above statute does not prescribe a transfer of these old records and the registers as kept by the Clerk of Courts, to the office of Secretary of State. More than 50% of the businesses listed in the registers are no longer in existence.
Based on the above factual situation you request an opinion on the following questions:
(1) Should the Secretary of State accept all the registers and the certificates of verification from the Clerk of Courts of all the counties, even if the register dates back to 1884 and the majority of the registered names are no longer current?
(2) May the Secretary of State assume that all businesses for profit pursuant to 37-11-1 will register with the Secretary of State when already registered with the Clerk of Courts?
It is my opinion that SDCL 37-11-3 only requires the Secretary of State to keep a register of the names of persons and firms which are filed with the Secretary of State by such persons or firms as provided in SDCL 37-11-1 and 37-11-2. I do not believe, however, that the Secretary of State can assume that all businesses for profit will automaticaly re-register with the Secretary of State pursuant to 37-11-1 if such businesses are already registered with the Clerk of Courts. I would certainly agree that additional legislation is needed to cover the matter of transfer of records and the re-registration of all businesses covered by 37-11 with the Secretary of State within a short period of time. SDCL 16-2-27, which concerns the continuing duties of the Clerks of Court under the unified judicial system, indicates that in the event duties of the Clerks of Court are abolished, provision will be made for the transfer of appropriate books and records as may be appropriate to carry out the intent of such transfer. Since the Legislature has not provided for the transfer of county records and registers on this matter, it is my opinion that the Secretary of State should not accept and keep the county records and registers on this matter.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC/dh
