STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 24, 1975
Mr. Peter J. Buttaro
Brown County States Attorney
Brown County Courthouse
Aberdeen, South Dakota 57401
OFFICIAL OPINION NO. 75-118
An arrest warrant issued pursuant to violation of municipal ordinance, bylaw or regulation may be issued and directed to sheriff or peace officer anywhere in the state.
Dear Mr. Buttaro:
You have requested the opinion of the Attorney General in regard to the following questions:
1. Are the warrants of a municipality outside of the limits of the municipality valid?
2. Is a county sheriff obligated by law to give warrant service for violations of a municipal ordinance occurring outside the county he serves?
The brief factual situation you have presented in connection herewith is as follows:
It has been the practice with law enforcement officers to send warrants of arrest to sheriffs in other counties for service. However, some of the sheriffs refuse to honor the warrants.
It is the general rule that state statutes authorize and limit the territorial jurisdiction within which the warrant of an issuing magistrate may be delivered and executed. (See 61 ALR 377; 5 Am. Jur. 2d, Arrest, § 18; 6 C.J.S. Arrest § 12.) Therefore, an examination of South Dakota statutes is necessary.
SDCL 23-21-3 provides:
A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.
Public offense is defined in SDCL 22-1-3 as:
. . . an act or omission forbidden by law, and to which is annexed, upon conviction, one or more of the following punishments:
(1) Death;
(2) Imprisonment;
(3) Fine;
(4) Removal from Office; or
(5) Disqualification to hold and enjoy any office of honor, trust, or profit under this state.
Magistrates are defined in SDCL 23-21-4 as:
(1) Judges of the Supreme Court;
(2) Judges of the circuit court;
(3) Judges of the county court;
(4) Judges of the municipal court;
(5) County and township justices of the peace;
(6) City and town police magistrates.
The unified judicial system, which became a reality as of January 7, 1975, eliminated the above named offices enumerated in subdivisions (3) through (6), inclusive, and established a magistrate court comprised of law trained magistrates (SDCL 16-12A-3.1) and magistrates (SDCL 16-12A-3) within the circuit court system.
Functions of the magistrate court are enumerated in SDCL 16-12A and include, among others, the following:
16-12A-16. A magistrate court shall have concurrent jurisdiction with the circuit courts to take pleas of guilty and try any criminal offense or proceeding for violation of any ordinance, bylaw or other police regulation of a political subdivision where the punishment is a fine not exceeding one hundred dollars or imprisonment for a period not exceeding thirty days, or both such fine and imprisonment...
16-12A-22. Magistrate courts with law trained magistrates presiding shall have concurrent jurisdiction with the circuit courts to try and determine all cases of misdemeanor and actions or proceedings for violation of any ordinance, bylaw or other police regulation of a political subdivision.
l6-12A-13. A magistrate court shall have concurrent jurisdiction with the circuit court to issue warrants of arrest and for searches and seizures.
The significance of the above provisions and others relating to jurisdiction of the magistrate court is the fact that jurisdiction is, in all cases, concurrent with the circuit court. Furthermore, the presiding circuit judge is directed to appoint sufficient magistrates (SDCL l6-12A-3) and a law trained magistrate where so provided by statute (SDCL l6-l2A-3.1) who shall serve at his pleasure. (SDCL 16-12A-4).
Therefore, it is conceivable that in certain instances circuit judges may be hearing and imposing sentence for violations of municipal ordinances. In addition, SDCL 16-l2A-17 provides as a matter of right that a defendant brought before a lay magistrate shall be entitled to demand trial before a law trained magistrate or circuit judge.
I find nothing which would limit the territorial jurisdiction of a circuit judge issuing an arrest warrant for violation of a municipal ordinance, bylaw or regulation to a specific geographic area within the circuit which he serves. Therefore, to determine that a magistrate sitting in the same capacity has any less authority to issue warrants outside of the municipality would lead to confusion, lack of uniformity throughout the state, and would seem to be contrary to the intent of the Legislature.
Therefore, the answer to your first question is YES, an arrest warrant of a municipality is valid outside of the municipality and may be directed to any sheriff or other peace officer in the state for execution (See SDCL 23-21-6).
I am aware of SDCL 23-21-8, which provides, in part, that all warrants issued by the municipal court shall run to the county sheriff or constable, or to the chief of police or any policeman of the municipality. I am of the opinion that the abolition of the office of municipal judge and the enactment of SDCL 16-12A-13, hereinbefore cited, served to repeal by implication the provisions of said statute.
The answer to your second question is found both in SDCL 7-12-1 and 23-22-35 which state:
7-12-1. The sheriff shall keep and preserve the peace within his county, for which purpose he is empowered to call to his aid such persons or power of his county as he may deem necessary. He must pursue and apprehend all felons, and must execute all writs, warrants, and other process from any court or magistrate which shall be directed to him by legal authority.
23-22-35. Every person who, after having been lawfully commanded by any magistrate to arrest another person, willfully neglects or refuses so to do, is guilty of a misdemeanor.
Respectfully submitted,
William Janklow
Attorney General
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