STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 20, 1973
Marshal Gerken
States Attorney, Aurora County
Plankinton, South Dakota 57368
OFFICIAL OPINION NO. 73-37
The applicabtlity of the principle of one man-one vote to a multi-County member planning and development district.
Dear Mr. Gerken:
You have requested an opinion on the following factual situation:
Aurora County is a member of the District Three Planning and Development District and has one vote. The by-laws read that each county has one vote plus each municipality of one thousand or more has one vote. Some counties of smaller population than Aurora County have two votes, as a result of the county having a vote and the municipality having a vote. For example, Davison county with a population of 17,319 has a total of two votes, the county and the city of Mitchell. Jerauld County with a total population of 3,310 has two votes, one for the county and one for Wessington Springs. Aurora County has a population of 4,183 but has only one vote.
In connection with this factual situation, you have asked:
Does this procedure violate the one man-one vote rule?
The State of South Dakota has made no statutory provision for franchise apportionment in such a governmental subdivision, other than Article VI, §19 of the Constitution of South Dakota which requires that, "Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage .... " Therefore, a solution to the question raised must evolve from the desions following the historic Baker v. Carr, 369 U.S. 186 (1962), where the United States Supreme Court declared the question of legislative apportionment to be judiciable.
The most recent United States Supreme Court opinion dealing with the applicability of one person-one vote principle was Salyer Land Company v. Tulare Lake Basin Water Storage District, 93 S. Ct. 1224 (1973). There the Court refused to extend the one man-one vote principle to the election of the board of directors of a water storage district where only landowners were qualified to vote, with votes apportioned according to the assessed value of the land. In determining that the one person-one vote principle did not apply, the Court looked to the nature and purpose of the water storage district. The district existed for the purpose of storage distribution of irrigation waters to farms within the district, and although the water storage district had some governmental powers, it provided none of the general public services ordinarily attributed to a governing body.
The relevant factual situation in Salyer is closely analogous to the one present in this multi-county planning and development district. Although the Joint Cooperative Agreement establishing the guidelines for the peographic area included, this power is severly restricted by Article VIII, §2, of the Agreement, titled Limitation of Powers. The specific limitations are set out below:
1. All plans shall be advisory only.
2. No zoning ordinances or subdivision standards regulating land use may be enacted by the District Committee.
3. The Committee is to have no authority that would supplant or in any way interfere with or supercede the planning and development authority granted cities and counties under other applicable state statutees.
4. Plans are to reflect goals and objectives for harmonious development of the district.
5. Plans prepared by or for the committee shall be transmitted to all government bodies which are members of the district. It will be for these government bodies to adopt them as their own for purposes of planning and development.
6. No power of eminent domain is to be exercised.
7. The committee cannot engage in construction projects.
8. The committee cannot regulate the agricultural or other uses of the land.
From this it is clear that the sole object and function of the district is to plan. Although planning is a governmental function, it falls far short of the required exercise of all the general powers of government necessary to warrant application of the principle Of one person-one vote.
A second reason that the one person-one vote principle is inapplicable in the planning district is borne out by the holding in Sailors v. B. of Ed. of the County of Kent, 387 U.S. 105 (1967). There, the one man-one vote principle had no relevancy because the choice of members for the county school board did not involve a general election. The members were elected by delegates from the member school boards. The members of the planning district board of directors are selected in a similar manner, one each being selected by the county commissioners of each member county, while the municipality members are selecetd by the city councils or similar municipal bodies.
Based on the Supreme Court holdings that the one man-one vote principle does not apply when the body involved is not involved in general governmental activities, Salyer Land Company, Supra, and that the principle is inapplicable where the officials are not elected at a general elction, Sailors v. Bd. of Ed. of the County of Kent, supra, it is my opinion that the principle of one man-one vote is not applicable to the selection of a board of directors of a multi-county member planning and development district.
Respectfully submitted,
Kermit A. Sande
Attorney General
