STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 2, 1968

Roger Schiager
State’s Attorney, Minnehaha County
Sioux Falls, South Dakota 57102

OFFICIAL OPINION NO. 67-68 pg. 474

Elections. A person who satisfied constitutional requirements for State House of Representatives at time of General Election is eligible to be nominated for such office at the primary although at time of primary he lacks all of the requirements of eligibility.

You have requested my official opinion in answer to this question:

“May a person be a candidate for Representative to the South Dakota Legislature who is not 25 years of age at the time of the primary election, but will meet this as well as all other qualifications at the time of the general election?”

Section 3, of Article III of the South Dakota Constitution provides for the qualification of members of the South Dakota House of Representatives in this language:

“No person shall be eligible to the office of Representative who is not a qualified elector in the district from which he may be chosen, and a citizen of the United States, and who shall not have been a resident of the state or territory for two years next preceding his election, and who shall not have attained the age of twenty-five years.”

Usually this question is raised as to eligibility for public office as between the time of election or the time of assumption of the office. The decisions upon this problem are collected in 88 ALR 812 and 143 ALR 1026. Reference may also be made to 42 Am. Jur. page 910 et seq, (sections 39 and 40) and 67 CJS “Officers” Sec 11. In the annotation in 88 ALR, the annotator prefaced his discussion with the comment that “on the question as of what time eligibility to public office must be determined, there is a great conflict in the courts.” He pointed out that if the Constitution or statute either expressly or by implication required eligibility to exist at the time of the election, there is no question that that is the date of qualification and likewise, if the constitutional or statutory provision required in direct language, or by implication, that such qualification exists at the time of the commencement of the term of office, there is no question that such is the date of qualification. However, the conflict in the cases arises when the Constitution or statute provides no time for the existence of eligibility, as to whether or not such eligibility must exist at the time of the “election,” or need not then exist, but must exist at the time of assumption of the public office.

The conflict arises as to the interpretation of the word “eligible.” Those courts which interpret “eligible” to mean “qualified to be elected or selected to such office,” state that such must be at the time of election. On the contrary, the courts arriving at the opposite conclusion take the position that “eligibility” when used in connection with a public office is not qualified by explanatory words indicating such time is the time of election, such refers to the qualification to hold office rather than the qualification to be elected to office, and therefore the time to meet such qualifications is when assuming such office and a lack of qualification when elected is immaterial.

These cases, and the conflict therein, however, are not necessarily involved in the problem you have raised for the reason that a consideration of the whole of the election statutes of our state, conclusively reveal that the primary election is an election limited to the several political parties within the state and merely serve as a nomination of candidates for public office of such political parties, who will be candidates for election to such position at the general election in the fall. (I appreciate that for certain political offices the actual election of such candidates is made at the primary election; however, this does not apply to the office of State Representative.)

Under the facts as stated, the potential candidate, at the time of election to such office, (the general election) will possess all qualifications provided by the Constitution to be eligible to such office. The fact that such qualifications at the time of selecting or nominating such candidate do not exist is immaterial.

The answer to your specific question is YES.