STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
September 12, 1966
D. G. Syvertson
States Attorney, Clark County
Clark, South Dakota 57225
OFFICIAL OPINION NO. 67-68 pg. 35
Elections. Combining a Town and Township into one Precinct.
In your letter of August 29, 1966, you inquire, "as to whether the Town of Naples and Foxton Township (each being separate precincts) can be combined by the Board of County Commissioners into one precinct with one polling place. You state that it is your understanding that the Town of Naples is incorporated, that there are 29 qualified electors living within the Naples Precinct, 84 qualified electors living within Foxton Precinct, and that the Town of Naples is situated in Foxton Township.
You specifically ask:
"1. Does the Board of County Commissioners have the authority to combine the two election precincts above mentioned?
"2. If so, is a petition of 75% of the electors of each of the two precincts involved required?"
We read in the first sentence of the 1960 Supp. SDC 16.0801 that
"16.0801. The board of County commissioners shall, on or before the tenth day of September in each year in which an election is to be held, provide for election precincts throughout its county . . .
In a former opinion, 1957-58 A.G.R. 188, the Attorney General stated:
"These statutes (SDC Supp. 16.08) are clear and it follows that it is my opinion that the establishment and adjustment of 
the election precincts is a duty devolving upon the board of county commissioners and are mandatory except where they are specifically made discretionary by statute." (Emphasis added).
Question No. 1, above, is answered in the affirmative, that is, it is my opinion that the Board of County Commissioners do have the authority, in view of the factual situation which you have presented, to combine the two election precincts, and it is my further opinion that it is mandatory and the duty of the Board of County Commissioners to provide for the election precincts throughout and within its County.
1960 Supp. SDC 16.0801 (5) provides:
"Incorporated towns, wholly within one county, together with contiguous territory upon the petition of seventy-five percent of the qualified electors residing in such proposed election precinct may, in the discretion of the board, be set apart as a separate election precinct."
It is clear that Section 16.0801 (5) pertains in the situation in which seventy-five per cent of the qualified electors residing in a proposed election precinct petition the Board of County Commissioners to be set apart as a separate election precinct, and even after the filing of such petition, the statute sets forth that it remains in the discretion of the Board to set apart an incorporated town as a separate election precinct. Such a situation contemplated at 16.0801 (5) is not the situation which you have presented in your letter of August 29.
It must follow that the answer to Question No. 2, above, is in the negative, that it is my opinion that a petition of 75% of the electors of each of the two precincts involved is not required to combine the Town of Naples and Foxton Township into one precinct with one polling place.
