STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 14, 1970

John A. Shaeffer
States Attorney, Moody County
Flandreau, South Dakota 57028

OFFICIAL OPINION NO. 70-44

Expenses of recount in connection with municipal election are payable with municipal funds. SDCL 9-13-17; 12-21-2; 12-21-4

Dear Mr. Shaeffer:

You have requested my official opinion based upon this factual situation:

In pursuance to statute, the city election for the City of Flandreau was held on April 21, 1970. Three electors of such city residing in a particular ward of such city, petitioned for a recount ot votes for city councilmen in such ward. Thereafter, the recount board, as set forth in SDCL 12-21-2, appointed by the District County Judge, proceeded to recount the ballots cast for city councilmen in such ward.

The question submitted in connection with this factual situation is as follows:

Is the City of Flandreau or the County of Moody responsible to pay the necessary compensation provided by SDCL 12-21-4 for such recount board members' activities in such recount?

The question submitted in connection with this factual situation is as follows:

Is the City of Flandreau or the County of Moody responsible to pay the necessary compensation provided by SDCL 12-21-4 for such recount board members' activities in such recount?

It is my opinion that this expense is a responsibility of the City of Flandreau and not Moody County, wherein Flandreau is located.

SDCL 12-1-2 provides that nothing in Title 12 shall apply to any municipal election except specifically provided as applying in Title 9, which sets forth the laws applicable to all municipal corporations in South Dakota.

It is axiomatic that any expenses connected with a municipal election, is a burden on the municipality involved, and no other subdivision of state government. Without provisions in the municipal corporation laws there would be no recount as provided in SDCL 12-21. However, SDCL 9-13-17 provides that except as otherwise provided, all municipal elections shall be recounted as elections under the general laws of this state.

It is my opinion that a recount in a municipal election is part and parcel of such election. Any expenses occurring because of such recount is the responsibility of such municipal corporation, and is properly paid from municipal funds, just as the necessary costs of giving public notice of such election, preparing ballots, furnishing judges of such elections, and all other necessary expense's connected with such municipal election.

Respectfully submitted,

Gordon Mydland
Attorney General