August 21, 1989

Mr. Michael A. Jackley
Meade County State's Attorney
Meade County Courthouse
1425 Sherman Street
Sturgis, SD 57785

OFFICIAL OPINION NO. 89-23

Township Dissolution and Reorganization

Dear Mr. Jackley:

You have requested an opinion from this office regarding the following factual situation:

FACTS:

On December 8, 1988, the Meade County Board of County Commissioners perfected the organization of Dakota Township 52. Dakota Township 52 consists of three full congressional townships and three partial congressional townships. See Appendix. The partial congressional townships border on a river, which is actually the county boundary. The legal creation of Dakota Township was completed when the notice of incorporation was filed with the Secretary of State pursuant to SDCL Chapter 6-10.

Dissent soon developed and individuals within Dakota Township began circulating petitions pursuant to SDCL 8-1-8 and 8-1-9 to separate certain of the congressional townships and/or partial congressional townships and create a new township. This new township is to be called Cheyenne River Township.

County Commissioners have received petitions with the signatures of a majority of the legal voters from Townships A and E for the formation of the Cheyenne River Township. See Appendix. Townships A and E do contain over five legal voters. It also has received a petition from Township D which has only one legal voter, who has since moved from the Township. There are no legal voters in Township F.

Based upon these facts, you have asked the following questions:

QUESTIONS:

1. Can the new Cheyenne River Township be created from Township A and Township E even if Township A and Township E are not contiguous?

2. Can the county commissioners use their discretion which seems to come from SDCL 8-1-8 to attach Township F and/or Township D to the newly formed Cheyenne River Township even though no one presently resides in either?

IN RE QUESTION NO. 1:

Prior to addressing the questions presented, a definitional framework should be established. A township or a governmental township is a territory six miles square, that was surveyed and platted by U.S. government surveyors. See 1919-20 A.G.R. 633. The term congressional township seems to share this definition.

The term civil township does not necessarily denote any geographical area, but rather is used to denote a type of governmental body. See generally SDCL Chapter 8-1. Civil townships may include several congressional townships. SDCL  8-1-3.

The establishment and organization of townships are governed by SDCL Chapter 8-1. Upon the facts presented, Dakota Township 52 consists of three full congressional townships and three partial congressional townships. Township A, a full congressional township, and Township E, a partial congressional township, wish to break off from Dakota Township 52 and become Cheyenne River Township. One option available would be SDCL 8-1-23 which provides for the abolition of a township organization. Once a civil township is abolished, the residents of their respective congressional townships can begin the organization process anew under SDCL Chapter 8-1. Since this may not be a viable option under the circumstances, our analysis must continue.

SDCL 8-1-9 provides the framework for a congressional township to "break away" from an existing civil township. SDCL 8-1-9 reads as follows:

If a majority of the legal voters of any congressional township, containing not less than five legal voters and constituting a portion of an organized civil township shall petition the board of county commissioners to be set off from such civil township and organized into a separate civil township, which petition shall have endorsed thereon or attached thereto an affidavit, made by one or more of the signers thereof, that the same is signed by a majority of the legal voters of the congressional township, the board shall appoint a time for the consideration of the petition, not less than twenty days thereafter, and shall send a notice through the mail, or deliver it personally to the township clerk and to each member of the board of supervisors of the civil township of which such congressional township forms a part.

One basic requirement for a congressional township to "break away" from a civil township is a petition signed by a majority of the legal voters of the congressional township. This petition must contain the names of at least five legal voters of the appropriate congressional township. Under the facts presented, congressional township A and partial congressional township E both have over five legal voters who reside in the respective township. Pursuant to SDCL 8-1-9, those two townships have the requisite numbers to petition the board of commissioners to "break away" from the existing civil township.

Section 8-1-9 speaks of "congressional townships." One of the townships that seeks to break away is Township E, which is a partial congressional township. Township E is treated as a full congressional township for the purposes of 8-1-9. A partial congressional township gets such treatment by the operation of SDCL  8-1-8, which is set forth in full later in this opinion. Section 8-1-8 deals with the attachment or division of fractions of townships. A pertinent part of that section is in the last sentence, which states that "[a]ll proceedings thereupon shall be as hereinafter provided for the division and reorganization of townships." SDCL 8-1-9. That sentence has the effect of treating any partial or fractional townships just as any other full congressional township in Chapter 8-1. Of course, the partial or fractional township must first have been attached to a properly organized civil township. That is the case here.

It must be noted that partial congressional township D and partial congressional township F cannot use SDCL  8-1-9 to "break away" from the existing civil township because these particular townships have no legal voters within their boundaries. Section 8-1-9 has a basic requirement of five legal voters. Absent a change in the present statutes, partial congressional townships D and F cannot break away from the existing civil township. SDCL  8-1-9; 1955-56 A.G.R. 171.

Question 1 specifically asks whether congressional township A and partial congressional township E can form a new civil township entitled Cheyenne River Township. One must note that SDCL  8-1-9 speaks in terms of "any congressional township," and not townships. Therefore, SDCL  8-1-9 only operates for one congressional township. In other words, townships A and E cannot join in their petition under SDCL  8-1-9. They must both move under that section to "break away" from the existing civil township.

The question then becomes whether congressional township A and partial congressional township E, which now have organized their own civil township form of government within their respective boundaries, can join as one civil township. This is addressed by SDCL  8-1-3, which reads as follows:

Any territory including a maximum of four congressional townships with the fractional townships contiguous thereto, having at least five resident voters, may be organized as a civil township.

Townships A and E do not share a common border. They do, however, share a common point and thus can be said to be "touching." See Appendix. Section 8-1-3 speaks to a maximum of four congressional townships, which does not come into play here. That section also states that the civil township can include "the fractional townships contiguous thereto." In interpreting this statute, one must address whether the term "contiguous" applies only to "fractional townships" or whether it also applies to the "four congressional townships" part of the statute.

It is obvious that the term "contiguous" operates to limit the fractional townships that can be included in a civil township organized pursuant to  8-1-3. Since the term "contiguous" is firmly rooted within the prepositional phrase "with the fractional townships contiguous thereto," I am of the opinion that the term "contiguous" does not operate to limit geographically the "four congressional townships" that are a maximum for the organization of a civil township under  8-1-3.

It should be noted that even if the term "contiguous" would operate to limit geographically the maximum four congressional townships, the "corner to corner" touching of congressional township A and partial congressional township E may be sufficient for those townships to be considered contiguous. See generally Big Sioux Township v Streeter, 272 N.W.2d 924 (S.D. 1978); Lien v. Northwestern Engineering Co., 73 S.D. 84, 39 N.W.2d 483 (1949).

I am also of the opinion that two civil townships can petition for their merger under SDCL 8-1-3. See generally 1959-60 A.G.R. 126.

IN RE QUESTION NO. 2:

Your second question asks whether partial congressional townships D and F can be attached to the new Cheyenne River Township. For the purposes of this question, I will assume that the attachment is to the civil township formed by partial congressional township E, the civil township formed by congressional township A, or the civil township formed by the combination of townships A and E.

Partial congressional townships D and F are presently attached to the civil township entitled Dakota Township 52. Since neither of these partial congressional townships has the necessary five legal voters pursuant to SDCL  8-1-9, they cannot use that statute to "break away" from Dakota Township 52. Your question asks whether the "discretion" in SDCL  8-1-8 would allow the county commissioners to attach these two partial congressional townships to the new civil township. SDCL  8-1-8 reads as follows:

A fraction of a township may be attached by the board of county commissioners to an adjoining township, or may be divided between two or more adjoining townships, or two or more fractions may be organized together or organized separately, upon being petitioned for by a majority of the legal voters inhabiting such fraction of a township, if in the opinion of such board the best interests of the township will be served thereby. All proceedings thereupon shall be as hereinafter provided for the division and reorganization of townships.

At present, partial congressional townships D and F are part of the civil township known as Dakota Township 52. Thus, they have already been attached to a civil township by the board of county commissioners. This attachment was pursuant to SDCL  8-1-8. The last sentence of that section states that "[a]ll proceedings thereupon shall be as hereinafter provided for the division and reorganization of townships." SDCL  8-1-8. In other words, the use of  8-1-8 does not apply upon the facts presented because the fractional townships have already been attached. Since that is the case, to "detach" the fractional townships from the civil township one must look to the division and reorganization statutes in Chapter 8-1.

SDCL  8-1-9, which was discussed earlier, begins the process for division of a township. This section is not applicable to the partial congressional townships D and F because those townships have no legal voters residing within their boundaries.

The process of reorganizing townships can be started by abolishing the same under SDCL  8-1-23. Of course, the full civil township would vote on the abolition of Dakota Township 52.

Thus, partial congressional townships D and F are not provided a method within the statutes of our State to "break away" from Dakota Township 52.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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Appendix Attached