STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
August 5, 1970
Miss Alma Larson
Secretary of State
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 70-37
Vacancies in office of District County Judge. Successor may be elected in 1970. Term of such elector is for two years, and in 1972 elections, the successful candidate will be elected for four years.
Dear Miss Larson:
This office, as yours, has been asked to determine certain questions which have arisen because of death and resignations in the office of District County Judges in at least three county court districts in our state.
SDCL (Supp) 16-9-2 provides that the District County Judge shall be elected at the general election and shall hold his office for four years and until his successor is elected or appointed and qualified. We can take judicial notice that the 19 District County Judges of the state were elected to such office at the 1968 General Election, took office at the proper time in 1969, and under such statute will be in office until the 1972 General Election will determine the District County Judge.
Article V, Section 37 of our Constitution, which applies to the District County Judges, in part provides:
Vacancies in the elective offices provided for in this Article shall be filled by appointment until the next general election . . . .
In the early cases of State ex rel McGee v. Gardner (1893) 3 S.D. 553, 54 N.W. 606, and In Re Supreme Court Vacancy (1894) 4 S.D. 532, 57 N.W. 606, our court interpreted this phrase to mean the next election in which it is provided by law that an officer may be elected to fill the vacancy.
Because of the constitutional provision, and its interpretation, the following questions have been submitted:
1. Can there be candidates for the office of District County Judges in the 1970 elections in those districts where the incumbent judge was appointed to fill a vacancy in such office?
2. If the answer to Question No. 1 is in the affirmative, how long is the term of office of such elected District County Judge?
We must always remember, as was pointed out in State ex rel Holmes v. Finnerud (1895) 7 S.D. 237, 64 N.W. 121 that the constitutional provision in question (Article V, Sec. 37) applies only to judicial officers. Likewise, we should appreciate that many of the court decisions relative to vacancies in non-judicial public offices may not apply.
Without unduly lengthening this opinion, with a citation of many adjudicated cases, it is my conclusion that the fact that the District County Judge's term will run for a term of four years, does not mean that the "next General Election at which such vacancy may be filled" will be held in 1972. The reading of the special circumstances surrounding the decisions of State ex rel McGee v. Gardner, and In Re Supreme Court Vacancy, and the statutes then applicable, does not lead to the conclusion that such "next General Election" will be in 1972.
It is my opinion, quoting from State ex rel Rearick v. Board of County Commissioners (1914) 34 S.D. 256, 145 N.W. 548, 549:
It is the general policy of the law to fill vacancies in elective offices at an election as soon as practicable after the vacancy occurs.
It is my opinion that any existing vacancy in the office of District County Judge may be filled in the 1970 elections.
In answer to Question No. 2 it is my opinion that such is ruled by the decision of Noel v. Cunningham (1942) 68 S.D. 606, 5 N.W. 2d 402, and those judges elected to fill such vacancy in District County Judge hold office for the unexpired term of such judge who vacated such position. In other words, such election is not for a four year term, but rather a two year term. Then in the 1972 elections the successful candidate will be elected for a four year term.
Respectfully submitted,
Gordon Mydland
Attorney General
