STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

August 12, 1970

M.L. Manning, Executive Secretary
S.D. State Board of Engineering
and Architectural Examiners
South Dakota State University
Brookings, South Dakota 57006

OFFICIAL OPINION NO. 70-40

Residency requirement to take engineering and architectural examination.

Dear Mr. Manning:

You have requested my opinion in answer to your question as to how long a time a candidate for registration with your professional board must be within the State of South Dakota before he can take the proper examination for licensing.

You have advised that under the "old" law, (SDCL 36-18), by rule and regulation, it was provided that a candidate for examination must be a resident of the State to take such examinations. As you know, ill the substantial amendment of the statute, Chapter 214, Laws of 1970, SDCL 36-18-17, was amended to provide that a candidate to be admitted to examination must provide and submit evidence, verified by oath and satisfactory to the board, that among other things, he, the applicant, "is a resident of the state at the time of the examination." This provision which was not contained in the statutory law of this state becomes effective July I, 1970.

The term "resident" does have several different meanings, as you have mentioned. Its use varies with the context in which it is used. Thus, a residency for the purposes of receiving poor relief is a different residence from that for voting purposes, or in some licensing situations.

One of the difficulties presented by the term "resident" is the fact that it is seemingly agreed that residency consists of two parts, or two necessary ingredients- an "intent" and an "act." It seems conclusive that mere physical presence at a particular place of itself is indicative of a residency. (See Routt v. Barrett, 396 Ill. 322, 71 NE 2d 660). Coupled with such physical presence must be an "animus manendi," the intention to make that particular place a dwelling place for more or less duration. (See Dennedy v. Kennedy, 205 Ark. 650, 169 SW 2d 876; In re Takahashi's Estate, 113 Mont. 490, 129 P2d 217.)

Our court has adopted these general principles of law concerning residency:

A residence is established by personal presence in a fixed and permanent abode, with the intent of remaining there.

Appeal of Lawrence County, 71 SD 49, 21 NW 2d 57; Nelson v. Nelson, 71 SD 342, 24 NW 2d 327; Spurlin v. Siebrasse, 74 SD 150, 49 NW 2d 604.

To acquire a voting residence requires the same two essential ingredients-the act of being present at a fixed place, and the intent-the animus manendi. However, by virtue of our Constitution, such person must have resided in the state for one year, the county ninety days and the election precinct for thirty days next preceding any election.

It is my opinion that the "residency" requirement in the engineering statutes do not necessarily mean such a continuation of residency in order to be admitted to the engineering or architectural examination. Rather, if from the evidence, verified by oath, the Board can determine that such applicant has a fixed abode in South Dakota and intends to make such place his home for more or less permanent duration, the applicant has satisfied the statute (SDCL 36-18-17) and he should be permitted to take the examination.

Respectfully submitted,

Gordon Mydland
Attorney General