April 21, 1975

Mr. Donn Bennett, State's Attorney 
Harding County
618 State Street
Belle Fourche, South Dakota 57717

OFFICIAL OPINION NO. 75-74

Provisions of SDCL 7-7-1.1

Dear Mr. Bennett:

You have asked for my opinion based on the following fact question:

An individual was duly qualified and elected to the position of Auditor of Harding County at the 1974 general election for a four-­year term as provided by the recently enacted provisions of SDCL 7-7-1.1. In March of 1975, said individual resigned from the post for personal reasons, and the Harding County Commissioners have appointed another person to the post of County Auditor, under the powers given the County Commissioners in SDCL 3-4-3.

Based on the foregoing you have specifically asked:

Is the appointment for the office of County Auditor effective for the duration of a four-year term, or is it effective until the next general election, under the provisions of SDCL 7-7-1.1?

SDCL 3-4-3 provides in part:

All vacancies . . . shall be filled by appointment as follows: . . . .

(2) In the county and precinct offices, by the board of county commissioners . . . .

Both the courts and my predecessors have held that the appointed officer only serves until his successor is elected at the next general election and qualified thereafter. Noel v. Cunningham, 68 S.D. 606, 5 N.W. 2d 402 (1942); State ex rel. Rerick v. Board of County Commissioners, 34 S.D. 256, 145 N.W. 548 (1914); Official Opinion 72-34; 1939-40 AGR 494; 1935-36 AGR 85. The appointee does not serve the full term of the person whom he was appointed to succeed. Therefore, to answer your specific question, the person who was appointed to fill the vacant auditor's position should serve until a successor is elected on the 1976 general election and qualified. The appointee should not serve out the full four year term (under SDCL 7-7-1.1) of the auditor who resigned. Whoever is elected in 1976 will serve a two year term.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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