STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
May 14, 1968
John C. Penne
Auditor General
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 67-68 pg. 479
Elections. Judges and Clerks of Municipal Elections are entitled to compensation for such services to be paid from municipal funds.
You have requested my official opinion in answer to these questions:
"1. What compensation, if any, are the Judges and Clerks of municipal elections entitled to?"
"2. If any compensation for services rendered is allowed to
judges and Clerks of municipal elections, which public body pays such compensation?"
It seems settled law that most election officials are compensated for their services, such compensation being payable in the manner, and limited to the amount therefor as provided by statute. (See 29 CJS p. 150 et seq (Elections Sec. 63).
Question No. 1 which you have submitted, initially presents the question: "Do Judges and Clerks of municipal elections receive any compensation for such services?" Such must be answered that either they receive compensation, or they are not to be compensated. Common sense tells us that a payment of compensation is expected. Do the statutes of the State authorize such compensation? If such is authorized, what is the amount of such compensation?
As you have pointed out, there is no specific statute in the law governing municipal elections (SDC 45.13, or amendments thereto) fixing or authorizing any payment for such services. The only provision of such specific statute being as provided by SDC 1960 Supp. 45.1320. wherein it is provided:
"Except as otherwise provided, all municipal elections shall be conducted, canvassed, recounted, and contested as elections under the general laws of this state. The number of judges and 
clerks of election for each voting precinct shall be determined by the governing body and shall be appointed by said governing 
body at a regular meeting preceding the election, provided, however, that not less than two judges and one clerk nor more than three judges and two clerks shall be appointed for each voting precinct."
It is interesting to note that in SDC 45.02, and acts amendatory thereof, wherein numerous powers are granted to all municipalities, there is no specific authority granted to hold an election, or to pay for ballots used at a municipal election from municipal funds. The closest authorization appearing in SDC 54.0201 (3) wherein every municipality is authorized to
"appropriate money for authorized purposes and provide for payment of the debt and expenses of the municipality." 
However, SDC 45.13 as amended, does authorize annual and special elections and provides for the furnishing of ballots by the municipality.
The question you have submitted has never been officially answered by this office; such subject matter has never been presented our Supreme Court. The Court, however, has indicated that in the absence of specific provisions in the laws concerning municipal elections, that as the statute states, the general election laws apply. (See Treat v. Morris, (1910) 25 S. D. 615, 127 N. W. 554 and Higgins v. Gray (1929) 54 S. D. 488, 223 N. W. 711. 
It is my opinion that the payment of the judges and clerks of municipal elections for their services is a necessary expense of a municipality, and money may be appropriated for such purpose, as such is an authorized municipal purpose Likewise, it is my opinion, in the absence of specific statutory direction, that the payment for such services comes within the "conduct" of such municipal election, and the statutes governing elections generally apply, and prescribe such compensation.
The specific answer to Question No. 1, is that the judges and clerks of municipal elections are entitled to compensation, such compensation being the same as the judges and clerks of elections under the general statute (SDC 1960 Supp. 16.1710, as last amended by Chapter 74 of the Session Laws of 1967) which fixes such compensation. 
Question No. 2 is simpler. As such compensation is authorized and for a lawful municipal purpose, such judges and clerks of municipal elections are paid from municipal funds.
