STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 19, 1968

Alma Larson
Secretary of State
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-11

Chapter 145 Laws of 1968 abolishing certain Municipal and Police Magistrate Courts; interpretation of such statute

Dear Miss Larson:

I have received so many inquiries as to the proper interpretation of Chapter 145 of the Session Laws of 1968 that I am taking the liberty of addressing this opinion to you in the hope that my interpretation of such statute may clarify its meaning.

Section 1 of the Act provides that if in any county court district established pursuant to Section 19 of Article V of the South Dakota Constitution there is a county having a municipality with a population based upon the last Federal census of not less than 5,000 nor more than 20,000, the jurisdiction of the municipal court is transferred to and vested in the county court serving said district. Section 1 further provides that all municipalities within the foregoing population range, whether they have established a municipal court or not, are subject to the Act.

Section 2 provides:

"Upon the effective date of this Act, all actions, including all records and documents pertaining thereto, which are pending in any municipal court affected by this Act shall be transferred to the appropriate county district court which shall proceed in the orderly disposition of all such matters."

Section 4 provides:

"Anything in SDC 32.07, as amended, to the contrary notwithstanding, no municipality within this state subject to the provisions and limitations of this Act shall establish a municipal court or police magistrate court and all municipal courts and police magistrate courts within such municipalities are hereby abolished, effective January 1, 1969."

Section 5 provides:

"Any municipal court, judge or police magistrate holding office upon the effective date of this Act shall continue in office until January 1, 1969, and except to fill a vacancy until the foregoing date, no person shall be appointed or elected to either of said offices after the effective date of this Act."

Section 6 contains a standard emergency clause.

The questions that have been propounded to me which will assist in clarifying this legislative enactment are as follows:

QUESTION 1. What, if any, municipal courts are affected by such enactment, and what is such effect on such municipal courts?

QUESTION 2. On what date are such affected municipal courts abolished?

QUESTION 3. At what time should such affected municipal courts turn over records and documents appertaining to pending actions to such proper county court?

QUESTION 4. What police magistrate courts are abolished by such Act, and when does such abolishment occur?

QUESTION 5. When should such affected police magistrate courts turn over records and documents relative to pending litigation?

I will answer the questions so propounded in order.

QUESTION 1: WHAT MUNICIPAL COURTS ARE AFFECTED BY SUCH ACT?

The statute itself in Section 1 has answered this question. Any municipal court in existence in any municipality having a population from 5,000 to 20,000 under the last Federal census are affected by the Act. Likewise, the Act applies to all municipalities within such population range, in that they cannot after the effective date of such Act establish a municipal court. You will notice that Section 23 of Article V of our Constitution, which in providing for police magistrate and municipal courts uses the language: "The legislature shall have power to provide for creating" such courts. This permissive language of necessity grants the authority to the Legislature to abolish all, or a portion of the police magistrate and municipal courts heretofore created under statutes.

QUESTION 2: ON WHAT DATES ARE SUCH AFFECTED MUNICIPAL COURTS ABOLISHED?

The statute itself answers this question. Section 5 provides such courts shall continue as a part of our court system until January 1, 1969 at which time such courts are abolished "effective January 1, 1969." The last day of the existence of such affected courts is December 31, 1968.

QUESTION 3: DATE TO TURN OVER RECORDS AND DOCUMENTS APPERTAINING TO PENDING ACTIONS IN THE AFFECTED MUNICIIPAL COURTS.

There is a patent ambiguity between the various sections of the Act. Section 2 indicates the date of the Act is on or about the time such Act goes into effect. The affected municipal courts, however, continue to function as courts up until January 1, 1969. It is certain that under such Act jurisdiction of such affected municipal courts is transferred to and vested into the district county courts which are established in pursuance to the amendment of Section 19 of Article V of the South Dakota Constitution approved by the electors in the general election of 1966.

In applying such statutory interpretations to Chapter 145 of the Session Laws of 1968, the following statements seem proper:

First: The records and documents of the affected municipal courts should not be transferred to the existing county courts. The statute provides that the jurisdiction is to be transferred to the district county courts, established in pursuance to the amendment of Section 19, of Article V of our Constitution. This constitutional provision itself provides that the judges of such district county courts shall not be elected to office until the general election in November 1968. By statute enacted in pursuance to Section 19 of Article XXVI of our Constitution, the term of office of such district county judges shall commence on the first Monday in January A.D. 1969. (SDC 48.0311 and 48.0312)

Second: To require the affected municipal courts to turn over the records and documents concerning pending actions at the "effective date of Chapter 145" would require a useless act. This must be so because to follow the literal language of the statute would require such records and documents to be transmitted to a nonexistent court at a time when such nonexistent court had no jurisdiction to function as a court.

Third: It would also seem absurd to require a court having jurisdiction and the authority to perform judicial functions until January 1, 1969, to cease operating as a court, and to invest jurisdiction in a nonexistent court having no authority to perform judicial functions at such time.

To give effect to the legislative intent, as expressed in such statute, and to avoid useless and absurd acts, the literal language of Section 2 must give way to the expressed intention of the whole act.

The first Monday in January 1969 falls on January 6, 1969. The affected municipal courts cease to have any judicial functions or jurisdiction as of December 31, 1968. It is my opinion that during that interim period (January 1, 1969 through January 5, 1969) all pending actions, together with the records and documents pertaining thereto shall be transferred to the proper district county court which shall thereafter proceed in the orderly disposition of such matters.

QUESTION 4: WHAT POLICE MAGISTRATES ARE ABOLISHED BY THE ACT, AND WHEN DID SUCH OCCUR?

The answer to this question is the same as to municipal courts, any police magistrate court existing in a municipality with a population from 5,000 to 20,000 as shown by the last Federal census, is abolished. The effective date of such abolishment is January 1, 1969.

QUESTION 5: TRANSFER OF RECORDS OF AFFECTED POLICE MAGISTRATE COURTS

The answer to this question is the same as given to Question No.3, for the reason that the same patent ambiguity applicable to municipal courts applies to the city magistrate courts. Such pending actions, together with the proper records and documents should be transferred to the proper district county court in the period between January 1, 1969 through January 5, 1969, thereafter such county district court should proceed to the orderly disposition of such matters.

Respectfully submitted,

Frank L. Farrar
Attorney General