STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

March 22, 1972

Miss Alma Larson
Secretary of State
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 72-11

Minimum age requirements to seek election to municipal offices

Dear Miss Larson:

You have asked the following question:

Reference is made to Official Opinion No. 71-33 relative to the qualifications of 18-21 year olds running for local, state and party offices.

My specific question is whether or not an 18-21 year old person is qualified to be elected and hold office in a municipality.

ANSWER: The question you have propounded relates to municipal problems, and as a general rule, 1 have declined to answer municipal questions since the Attorney General is not so authorized by statute. However, exceptions to the general rule have been made, usually when the question is one of state-wide implication or of paramount importance. With the ratification of the Twenty-Sixth Amendment to the Constitution of the United States granting the eighteen year old citizens the right to vote, and in light of the fact that your question has not been answered authoritatively, I feel that this is one occasion to make the exception and answer a question on municipal law.

SDCL 9-2-1 divides all municipal corporations in South Dakota into two classes, cities and towns. Towns may only have a board of trustees form of government, while cities may have the commission form or a mayor and common council form. Under either form, a city may in addition have a city manager. SDCL 9-2-3. I shall deal with each form of government in order.

BOARD OF TRUSTEE - SDCL 9-7-1 provides that the board of trustees shall consist of three persons and they shall be legally qualified electors of the municipality. Based upon my opinion No. 71-24, an elector is necessarily a regular voter contemplated by SDCL 12-19A. In addition, the Legislature this year enacted House Bill 523 with an emergency clause that made all voters, eighteen years old or older, regular voters within the definition of SDCL 12-19A. Inasmuch as an elector is the only age qualification specified for election to the town board of trustees, it is my opinion that any person, meeting the other requirements imposed by law, who is eighteen years old, or older, may seek election to any town board of trustees in South Dakota.

MA YOR AND COMMON COUNCIL WITHOUT CITY MANAGER - The only age require men t for mayor is found in SDCL 9-8-1. "Elector" is the term used, and based upon the previous part of this opinion, it is my opinion that any person, meeting the other requirements imposed by law who is eighteen years old or older, may seek election to the office of mayor.

SDCL 9-8 does not set qualifications for members of the common council; however, SDCL 9-14-2 provides as follows:

9-14-2. RESIDENCE REQUIREMENT FOR ELECTION OR APPPOINTMENT TO OFFICE - EXCEPTIONS - DEFAULTERS INELIIGIBLE. - except as otherwise provided, no person shall be eligible to any municipal office who is not a qualified elector of the municipality and who shall not have resided therein at least nine months next preceding his election or appointment. The city attorney, police officers, city auditor, city treasurer, town clerk, city engineer and city assessor need not be qualified electors of or residents of the city. No person shall be eligible to any municipal office who is a defaulter to the municipality.

Therefore, if all other requirements are met, it is my opinion that any person eighteen years old or older may seek election to the common council of any city.

MAYOR AND COMMON COUNCIL WITH CITY MANAGER - SDCL 9-10-4 states that the mayor and members of the council shall be elected in the same manner in cities with a manager as in cities without a manager. The same qualifications will apply.

COMMISSION FORM WITHOUT A MANAGER - SDCL 9-9-2 states that a member of the city commission must be over the age of twenty-six to hold office. This will only be the law until July 1, 1972, since the Legislature in House Bill No. 531 repealed the twenty-six year old provision of SDCL 9-9-2 and substituted "elector." Consequently, after July 1 all persons meeting the other qualifications set by law who are eighteen years old and older shall be eligible to hold an office on a board of commissioners.

COMMISSION FORM WITH A MANAGER - SDCL 9-10-6 provides that the commission form of government under a city manager shall be governed by the general provisions of the law applicable to commission forms of government. Therefore, after July 1, 1972, eighteen year olds will be eligible to office in the same manner as stated above.

I have set forth what is, in my opinion, the applicable law. However, should there be an alleged violation, the proper remedy should be commenced by an interested party and not the State's Attorney or the Attorney General.

Respectfully submitted,

Gordon Mydland
Attorney General