STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 27, 1966

Thomas G. Ries
State’s Attorney, Codington County
Watertown, South Dakota 57201

OFFICIAL OPINION NO. 67-68 pg. 52

Elections. Elections in incorporated sanitary districts provided by SDC 1960 Supp. 45.38 Eligible voters; absentee voting; registration list for such election.

You have requested an official opinion to answer certain questions you have propounded in regard to the election soon to be held in your county in regard to the incorporation of a sanitary district in pursuance to SDC 1960 Supp. 45.38, and acts amendatory thereto.

The questions you have propounded are as follows:

"1. Who can vote at such election? (That is, can all landowners in the proposed territorial limits of such sanitary districts vote on the question of whether such should be formed, or is the voting limited to qualified electors residing within the boundaries of the proposed incorporated sanitary district?)

"2. What constitutes the 'registration list' for such election?

"3. Can a person vote by an absentee ballot at such election?"

It is so elementary, that citation of authority seems superfluous, that when statutory provisions authorize and permit the creation of an inferior subdivision of the state, such as an incorporated sanitary district, (see SDC 1960 Supp. 45.3817), that the statutory provisions must be substantially complied with in order to effectively and legally create such inferior subdivision of the state.

In considering questions 1 and 2 propounded, two sections of the statutory enactment seem involved. These are SDC 1960 Supp. 45.3803, as amended by Section 1 of Chapter 144, of the Session Laws of 1964, and SDC 1960 Supp. 45.3806, as amended by Section 4 of Chapter 144 of the Session Laws of 1964. These sections read as follows:

"SDC 1960 Supp. 45.3803 Census of resident population; time of taking verification; minimum requirements. Such persons shall cause an accurate census to be taken of the resident population of the territory included in said map, as of a day not more than thirty days previous to the time of filing such application with the county auditor as hereinafter provided. Such census shall exhibit the name of every head of a family residing within such territory on such day and the number and names of persons belonging to every such family and shall also state the names of all other persons residing within such territory at such time and, as to each person named, whether such person is a qualified voter. It shall be verified by the affidavit of the person or per sons taking the same, stating that, to the best information and belief of the affiant or affiants, the census correctly shows the names and numbers of all residents and of all qualified voters within the territory. Persons taking the census may at the same time obtain signatures on the application for incorporation required by Section 45.3805. No sanitary district shall be incorporated which contains less than one hundred legal residents, including minors, or less than thirty qualified electors as shown by the census."

"45.3806 County board orders notice of election. If the board shall be satisfied that the requirements of this chapter have been fully complied with, it shall make an order declaring that such territory shall, with the assent of the qualified voters thereof as hereinafter provided, be an incorporated sanitary dis trict by the name specified in the application. Such name shall be different from that of any other sanitary district in this  state. It shall also include in such order a notice for an election of the qualified electors resident in the proposed sanitary district, at a convenient place or places therein, on some day within one month therefrom, to determine whether such territory shall become an incorporated sanitary district. The county board is also authorized to expend funds of the county, in the manner and to the extent permitted by law for other county expenditures, in the payment of necessary costs of preparation of petitions, surveys, maps, and applications submitted under the provisions of this chapter, and of the holding of elections on the incorporation of sanitary districts hereunder. The county board is also authorized to accept and expend any funds appropriated to the state department of health and allocated by that department to the county for these purposes."

After considering these provisions, it is my opinion that the answer to Question No. 1 must be that the statute provides that the eligible and qualified voters at such election, held for the purpose of determining whether or not such territory should be incorporated as an incorporated sanitary district, is limited to the resident electors within the area proposed to be within the incorporated district, and does not contemplate or permit nonresidents of such territory, even though landowners within such territory, to vote at such election.

Tn considering Question No. 2, it is my opinion that as the census taken of the proposed district requires the affidavit of the census taker, that such census correctly shows the names and numbers of all residents within such territory, as well as all qualified voters therein, and that such census must be considered accurate by the county commissioners, (for the reason that the board of county commissioners must be satisfied that all requirements of this chapter have been fully complied with before it authorizes and directs that the election be held,) that such is the basic registration list to be used in such election.

Some question may be raised as to whether or not under the single registration law (Chapter 92 of the Session Laws of 1961) could be resorted to for such registration list. It will be noticed that such applies to registration for "municipal, primary, general, or independent school district elections." (Section 1 of the Act). This statute does not, by its own limitations, apply to the election in question.

My answer to Question No. 2 is that the census taken and filed with the county commissioners, in pursuance to SDC 1960 Supp. 45.3803 as amended by Section 1 of Chapter 144, of the Session Laws of 1964, is the basic registration list for such election. However, as previously stated, all qualified voters residing within the territorial limits of the proposed district are qualified to vote at such election. The qualifications of voters in this state is provided by Section 1 of Article VIl of the South Dakota Constitution. Any person residing within the territorial limits of the proposed sanitary district who possesses the qualifications as prescribed by the Constitution is eligible to vote at such election, whether he be included on such "census list" or not. Likewise, any person who may be determined on such census list as being a qualified voter in the territory of such proposed sanitary district who does not possess the qualifications as prescribed by the Constitution is ineligible to vote at such election, and the inclusion of his name on such census list does not create eligibility as a voter.

In answer to Question No. 3, it should be pointed out that since the opinion of my predecessor reported in 1924 AGR 161, this office has consistently held that the right to vote in an election by absentee ballot, or by mail, he must have complied with the statutes requiring registration as a voter, and in any election which does not require registration as a condition precedent, the law relating to absentee voting cannot apply. The Attorney General opinions which have followed this basic decision are as follows:

1933-34 AGR 310; 1935-36 AGR 206; 1937-38 AGR 258; 1939-40 AGR 601 and 1945-46 AGR 61.

In the last cited decision, 1945-46 AGR 61, my predecessor pointed out that the Soldiers Absent Voting Statute, Chapter 2 of the Special Session of 1944, now SDC 1960 Supp. 16.0610-16.0614, applies only to general or primary elections. It does not apply to an election such as herein questioned. Likewise, in the same opinion it was pointed out that the general absentee voters election law, as provided in SDC 16.0606-16.0609 applies to registered electors, and cannot apply to an election such as the one herein questioned, for the reason that basically there is no registration for the election to approve a proposed incorporated sanitary district. Such registration is furnished, basically, by the census required as a condition precedent to such election.

My answer to Question No. 3, is "No". There can be no absentee voting at such election.

You have advised me that you have instructed the county commissioners to appoint the judges of election for the election in question, and have asked my opinion as to the propriety of such directions. A reading of the statutes and the amendments will reveal that the statutes are silent as to the appointment of judges of election. It seems fundamental that there must be some persons designated to keep order at the election, prevent unauthorized persons to vote at such election, and at its conclusion, count the ballots and report the results to the proper officials. It is my opinion that in view of the fact the Legislature has seen fit not to provide for judges of election your instructions are proper. The commissioners give notice of such election; necessity requires they appoint the judges thereof. It would seem that without some designation of judges of such election, there might be some question as to the effectiveness of the same.