STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 16, 1972

Richard Kolker
State's Attorney, Brown County
Aberdeen, South Dakota 57401

OFFICIAL OPINION NO. 72-23

Replacement of resigned trustee for Warner Sanitary District

Dear Mr. Kolker:

You have asked for an official opinion on the following factual situation:

Three trustees were elected November 24, 1972 for staggered terms under SDCL 34-17-15. Subsequent to election, the president of the board of trustees resigned, leaving only two trustees to act. The re is no statutory provision for filling the vacancy.

Your specific questions are:

1. How is the vacancy of the board to be filled?

2. If the vacancy is not filled, can the district act with only two trustees?

3. If acting under the direction of only two trustees, can the district lawfully vote to bond the district?

The appointive power in the sanitary district law, SDCL 34-17-22 does not extend to members of the board. Vacancies in office generally are covered by SDCL 3-4-3. This law provides:

Appointments to fill vacancies - By whom made, - All vacancies, except in the office of a member of the Legislature, representative in Congress, and United States Senator, shall be filled by appointment, as follows:

(I) In state and district offices, and the office of supreme, circuit, and county judge, by the Governor;

(2) In county and precinct offices, except the offices of county judge, by the board of county commissioners, except vacancies on such board;

(3) In civil township offices, by the justice of the peace of the township, together with the board of supervisors or a majority of them, by warrant under their hands; and if a vacancy occurs from any cause in the foregoing board of appointment the remaining officers of such board shall fill any vacancy therein. (Emphasis added)

Some objection has been made to this statute, by persons who claim it applies only to judicial districts. This question need not be resolved as, if such were a correct interpretation of the law, the Governor would make the appointment anyway pursuant to Article IV, Sec. 8 of the South Dakota Constitution:

When any office shall from any cause become vacant and no mode is provided by the constitution or law for filling such vacancy, the governor shall have the power to fill such vacancy by appointment.

Also see 1969-70 AGR 188, Appointment of Vacancy on Sanitary District Board of Trustees.

The answer to your first question therefore is that the vacancy must be filled by an appointment of the Governor.

The answers to your second and third questions are provided by SDCL 34-17-20:

The board of trustees shall adopt such rules and regulations for the conduct of the business of said board, and shall fix a stated time at which the regular meetings of said board shall be held. A majority of the board of trustees shall constitute a quorum but a smaller number may adjourn from day to day. A concurrence of the majority shall be necessary to any action of such board. (Emphasis added)

Therefore, the answer to your second question is that a three member board can transact business as long as two of its members are present. In such a case, both would have to concur before something could be passed.

The answer to your third question is, YES, so long as both members concur.

Respectfully submitted,

Gordon Mydland
Attorney General