STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 10, 1972

Thomas A. Kolker
States Attorney, Edmunds County
Ipswich, South Dakota 57451

OFFICIAL OPINION NO. 72-34

Appointee to fill vacancy in office of county commissioner holds office until same may be filled at next general election, and such successor qualifies for office. Such appointee does not hold office for balance of unexpired term. SDCL 3-4-4 and 3-4-6

Dear Mr. Kolker:

You have requested my official opinion in answer to a question asked in regard to the following factual situation:

A county commissioner, elected for a term of office commencing In. January, 1971, after duly qualifying for such office, departed this life in 1971. His successor to such office was appointed on September 7, 1971, and thereafter qualified as county commissioner.

Your question is whether or not such appointment to fill the vacancy may be filled during the 1972 election, or whether such term of appointment continues for the balance of the term of office, which expires in January, 1975.

It is my opinion that the appointment to fill the vacancy in the office of county commissioner ran only until the next general election when a successor could be elected and thereafter qualify. Such appointee was not appointed to fill out the balance of deceased's term of office.

SDCL 3-4-4 provides that when a vacancy in the office of county commissioner occurs, the remainder of the county commissioners, or such county commissioners and the county auditor fill the vacancy in office.

SDCL 3-4-6 provides that such appointment shall be made in writing and made to continue until the next general election at which the vacancy can be filled, and until a successor is elected and qualified.

In State ex rel. Rerick v. Board of County Commissioners (1914) 34 S.D. 256, 145 N.W. 548, it was determined that an appointee to fill a vacancy in the office of county commissioner holds office until the next general election, at which time someone may be elected to fill the office during the unexpired term. Our Supreme Court further held in such opinion that it was the general policy of the law to fill vacancies in elective offices by an election as soon as practicable after such vacancy occurs. This principle was subsequently approved in Noel v. Cunningham (1942) 68 S.D. 606, 5 N.W. 2d 402, which dealt with a vacancy in the office of States Attorney.

This office has in the past followed the rule that an appointee to the vacancy in office of county commissioner is appointed to hold office only until the next general election, at which time the vacancy can be filled by election, and until th esuccessor is elected and qualified. 1935-36 AGR 85 and factual situation presented extraordinary circumstances, not presented now. It is also my opinion that it is improper for this office to overturn the decisions of the South Dakota Supreme Court. If anything in that opinion in 1959-60 AGR 8 appears to be in conflict with or repugnant to the principle of the Rerick case, supra, such portions of the Attorney General Opinion are overruled

I can appreciate that the statutes of the state have been amended and modified since 1914, the date of the Rerick case. However, the principles as set forth in SDCL 3-4-4 and 3-4-6 were the same in 1914 as they are today. The statutes have not so changed as to render either Rerick or Noel v. Cunningham obsolete or nonapplicable.

Respectfully submitted,

Gordon Mydland
Attorney General