STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
July 17, 1970
James D. Owens
States Attorney, Hyde County
Highmore, South Dakota 57345
OFFICIAL OPINION NO. 70-31
Office hours of county sheriff
Dear Mr. Owens:
You have requested the opinion of this office as to the office hours of the county sheriff, based upon the following set of facts:
The Sheriff of Hyde County resides on his farm about five miles west of Highmore. He does not maintain regular office hours in his office in the courthouse ... He has a radio in both car and office, and phone at both office and home. He has no deputy, therefore, when he is out of the office, for whatever reason, there is no one there to answer the phone, radio or attend to callers at the office.
The question more specifically is: Whether the Sheriff is required to be at or "around" his office in the courthouse during so-called office hours, except when required to be absent on official duties?
The general duties of the county sheriff are defined in SDCL 7-12-1 as follows:
The sheriff shall keep and preserve the peace within his county, for which purpose he is empowered to call to his aid such persons or power of his county as he may deem necessary. He must pursue and apprehend all felons, and must execute all writs, warrants, and other process from any court or magistrate which shall be directed to him by legal authority.
SDCL 7-12-2 provides that the sheriff "shall keep his office at the county seat ....”
SDCL 7-7-2 provides for the business hours of county offices, requiring that "it shall be and is the duty of the auditor, treasurer, register of deeds and clerk of courts of each county in this state to keep his office open and functioning during each and every day . . . [between specified hours]." The office of the sheriff is conspicuous only by its absence from this section.
The grounds for removal of a sheriff (and other officers) is spelled out in SDCL 3-17-3. The Governor may remove any such sheriff who:
... shall willfully fail, neglect, or refuse to perform any of the duties imposed upon him by, or to enforce any of the provisions of law relating to intoxicating liquors, or who shall willfully fail, neglect, or refuse to perform any duties imposed upon them by law, or who shall be guilty of the violation of any law, or who shall assist or connive in the violation of any law, or who shall be grossly incompetent to perform the duties of his office.
You have indicated no reference to such failure, neglect, or refusal as outlined above. In the absence of such, it is my opinion that the sheriff is specifically exempted from the requirement of keeping specific and regular office hours as provided in SDCL 7-7-2 for other named offices.
As a practical matter, most sheriffs spend far more time in carrying out their official duties as outlined in 7-12-1 during weekend and nighttime hours than other county officers do during the regular office hours spelled out in the Code.
This opinion is in line with the official opinion of this office concerning the county superintendent of schools reported at 1961-62 AGR 128.
As a practical matter, sheriffs and their deputies who spend night and weekend hours in the pursuit of their official duties cannot be expected to keep the same business hours as other offices, or no one would be physically capable of filling the office of sheriff.
If, in the opinion of the county commissioners, it is necessary that someone be in the office of the sheriff during every "regular" business hour of the day, they are empowered by SDCL 7-12-9 to authorize the appointment of a deputy or clerk for such purpose.
Respectfully submitted,
Gordon Mydland
Attorney General
