STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

THIS OPINION 75-181A IS TO REPLACE OFFICIAL OPINION 75-181.

It has come to our attention that Official Opinion 75-181 may be misleading in that it tends to imply that the comprehensive plan required by SDCL 11-2-11 must be implemented not later than July I, 1976, and that the remedies discussed in Official Opinion 75-181 would therefore be applicable on that date. For this reason we are adding additional explanatory language in this regard and Official Opinion 75-181 should be discarded in place of Official Opinion 75-181A.

November 25, 1975

Mrs. Mary Dell Cody
State's Attorney of Yankton County
Post Office Box 203
Yankton, South Dakota 57078

OFFICIAL OPINION NO. 75-181A

Yankton County comprehensive plan

Dear Mrs. Cody:

You have requested an official opinion from this office based upon the following factual situation:

Yankton County is in the process of passing a comprehensive plan as required by SDCL 11-2-11. There has been much opposition voiced to the county commissioners doing so. In order to have public comment the commission has held public meetings. Pursuant to the last meeting, the commissioners asked me to request an opinion concerning the following questions.

1. What can the state do to the Yankton County commissioners if they do not pass a comprehensive plan as required by SDCL 11-2-11? What are the ramifications of such action?

2. Has the constitutionality of such a state statute been determined? Can the state lawfully require a county to zone, etc.?

3. The present plan of Yankton County has a penalty section making it a misdemeanor for failure to comply with the provisions of the plan. Can the county lawfully write into the plan such a penalty provision?

With respect to the first question you raise, the willful failure of the Yankton County Commissioners to pass a comprehensive plan presents several legal courses of action against them.

The first remedy available in the fact situation you present is found at SDCL 11-2-35. SDCL 11-2-35 provides that any taxpayer of a county may institute mandamus proceedings in the circuit court to compel specific performance by the county commissioners of any duty required by the chapter and by any ordinance adopted thereunder.

SDCL 3-17-6 provides another remedy in that local officers can be removed from office for "nonfeasance." As interpreted by 1937-38 AGR 211, an officer who does not perform their required duties might be liable for removal for nonfeasance.

In addition to the above, SDCL 3-5-11 provides for a remedy against the bond of county commissioners if they do not perform the duties required of them by law.

SDCL 3-16-1 provides for yet another remedy in the event the county commissioners of Yankton County would willfully fail and refuse to perform their official duty. SDCL 3-16-1 provides:

Where any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every willful omission to perform such duty where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.

SDCL 22-6-2 provides the penalty for this misdemeanor being a maximum of one year in the county jailor by a fine not exceeding five hundred dollars or by both such fine and imprisonment.

With respect to the second question you raise, I can find no South Dakota case law which has directly considered the question you raise. One must remember, however, that every presumption is in favor of the validity and propriety of legislative action and that no statute should be held unconstitutional unless its infringement of constitutional restrictions is so plain and palpable as to admit of no reasonable doubt, Clem v. City of Yankton, 160 N.W. 2d 125 (1968). In this regard, it must also be remembered that it is not the function of the Attorney General's Office to declare statutes to be unconstitutional. If there is a question as to the constitutionality of a statute, the court, and not the Attorney General's Office, is the proper place for a definitive decision. It is my opinion, however, that in view of the fact that the courts in the past have construed the state constitution to be not a grant but a limitation on legislative power so that the Legislature may enact any law not expressly or inferentially prohibited by the Constitution of the United States or the State of South Dakota, State v. Summers, 33 S.D. 40, 144 N.W. 730 (1913), the burden of establishing the statute to be unconstitutional would be very difficult. It should also be remembered here that the courts have repeatedly found that a county is an entity created by statute, having only such powers as are conferred on it by the Legislature, State ex rel. Bell v. Board of Commissioners of Beadle County, 300 N. W. 832 (1941) and that zoning is a valid exercise of the police powers exercised in the interest of the public, Tillo v. City of Sioux Falls, 82 S.D. 411, 147 N.W. 2d 128 (1966). These positions would seem to indicate that the Legislature can require the county or any other unit of local government to perform certain functions.

In regard to your third question, SDCL 11-2-33 provides:

It is declared unlawful for any person to violate any of the terms and provisions of this chapter or the provisions of any ordinance, regulation, or other official control adopted by the board pursuant thereto. Violation thereof shall be a misdemeanor and may be punishable by a fine up to one hundred dollars for each and every day that any violator fails to comply with the provisions of this chapter or any ordinance or regulation adopted pursuant to this chapter. All fines for violation shall be paid to the county and shall be credited to the general revenue fund.

Based on the above statute the county can lawfully build into the plan a paragraph which reflects what the Legislature has provided for. The authority for the penal provision, however, is based upon the above cited statute, not on the authority of the Yankton County Commissioners.

The above discussion of the various remedies available is not intended to imply that as of July I, 1976 all of the above remedies would be applicable against the Yankton County Commissioners if they have not completely implemented such a comprehensive plan. SDCL 11-2-11 only requires that the county planning commission shall prepare a comprehensive plan, not later than July 1, 1976. The statute goes on to provide that the commission shall also develop official controls for the implementation of the comprehensive plan, but in so doing, the statute does not tie the implementation stage to the July 1, 1976 deadline. SDCL 11-2-11 does not in my opinion make the Yankton County Commissioners subject to the above discussed remedies as of July 1, 1976 if the Commissioners have prepared a plan, but have not implemented the plan before July 1, 1976. Inasmuch as SDCL 11-2-11 requires the plan to merely be prepared by July 1, 1976, and does not specifically require the plan to be implemented by that date, the above discussion of available remedies must be seen in their proper perspective.

Respectfully submitted,

William Janklow
Attorney General

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