STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 10, 1970

Howard Geers, Executive Secretary
State Conservation Commission
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-39

County Soil and Conservation District Board of Supervisors. Incumbents in office on July 1, 1968 remain in office in absence of election of successors in 1968 and 1970 general election. SDCL 38-8-39

Dear Mr. Geers:

You have requested on behalf of yourself and your Commission that this office interpret certain provisions of SDCL 38-8 which, by virtue of Ch. 17, Laws of 1970, are a part of the South Dakota Code of laws.

The factual situation giving rise to your questions is that one of the County Soil and Water Conservation Districts neither had notices of election issued nor petitions circulated for nominees for supervisors of such district during the 1968 general election; nor were petitions timely filed by July 1, 1970, in pursuance to 38-8-39 so that nominees for such supervisors will not appear on the ballots in the 1970 election. In this situation, you have asked:

What action should the State Conservation Commission take to correct the situation?

For many years the legislative policy of South Dakota has been to provide that while a public official is elected for a definite term, he continues in such official position until his successor is elected and qualified. This principle has been provided in SDCL 38-8-39 (as amended by Section 1, Ch. 5, Laws of 1969) which in part provides:

The governing body of a district shall consist of a board of supervisors. District supervisors holding office on July 1, 1968 shall continue to hold office until January 1, 1969 and thereafter until their successors are elected and qualified as provided herein.

This provision provides that all supervisors who have not forfeited their office, by virtue of death, resignation, or removal from the county or otherwise, who were supervisors on July 1, 1968 are the legal supervisors of such district.

Any misgivings you and the Board may have concerning the failure to give notice of the election in 1968, and the failure of candidates to file for the 1970 general election seem immaterial.

While the Board should give notice of such an election in 1968 and in 1970, this fact alone would not automatically vacate the entire board of superivsors of such County Soil and Water Conservation District. You also should recognize that the failure of an elected candidate, whose term of office lasts until a designated time and thereafter until his successor is elected and qualified, to petition for reelection does not of itself automatically cause such office to be vacated. The responsibility to circulate petitions and timely file the same consistent with SDCL 38-8-39 rests with any individual desiring to seek such public office. However, in the absence of the circulation and timely filing of such petition by any person, the incumbent will remain in office until his successor is elected and qualified at the next general election.

I must advise you that the premise you and the Board are going under, that after January 1, 1970 there will be no Board of Supervisors in such district, is erroneous. There is a Board of Supervisors. Such consists of all those commissioners in office on July 1, 1968, who have not vacated such office by virtue of death, resignation, or removal from the county. SDCL 38-8-44 provides in case there is a vacancy in the office of such supervisors, a majority of the remaining supervisors appoint a person to serve in such position until the next general election at which time the vacancy is filled by the electors for the balance of the unexpired term.

Respectfully submitted,

Gordon Mydland
Attorney General