STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 6, 1975
Representative James L. Stoick
20th Legislative District
104 West 7th Street
Mobridge, South Dakota 57601
OFFICIAL OPINION NO. 75-101
Holdover of official in office
Dear Representative Stoick:
You have asked whether the incumbent Walworth County state's attorney may hold over in office when there is no candidate for state's attorney at the general election. You have stated that the incumbent state's attorney refused to seek re-election, and no other candidate filed for the office of state's attorney. You indicate that the county commission might appoint someone to the position of state's attorney but for the intransigence of the incumbent.
The question is whether a vacancy has been created that may be filled by appointment of the county commission pursuant to SDCL 3-4-3(2). SDCL 3-4-1 describes how a vacancy occurs in office:
Every office shall become vacant on the happening of anyone of the following events before the expiration of the term of such office:
(1) The death of the incumbent;
(2) His resignation;
(3) His removal from office;
(4) His failure to qualify as provided by law;
(5) His ceasing to be a resident of the state, district, county, township, or precinct in which the duties of his office are to be exercised or for which he may have been elected;
(6) His conviction of any infamous crime or of any offense involving a violation of his official oath;
(7) Whenever a judgment shall be obtained against him for a breach of his official bond.
Except when otherwise expressly provided, every lawful incumbent of any public office, with a definite term, upon the expiration of such term shall continue to discharge its duties until his successor shall have been elected or appointed and has qualified, and shall be entitled to receive the prescribed compensation of such office during the time he shall so discharge its duties.
The term "or appointed" in SDCL 3-14-1 deals with appointive officers, such as the Board of Regents, as opposed to elective officers, such as county officials. It is not construed to mean that if a successor is not elected that one shall be appointed. See Burke v. Schmidt, 86 S. 0.71, 191 N. W. 2d 281 (1971 ) .
Since SDCL 3-4-1 does not contain any provision that creates a vacancy when a person fails to be elected at the general election and since SDCL 3-14-1 provides that the incumbent shall hold over, there is no vacancy in the office of state's attorney in Walworth County. Therefore, there is nothing for the county commission to fill by appointment. On several occasions, my predecessors have issued similar opinions. See 1965-66 Attorney General's Report 89; 1939-40 Attorney General's Report 643; 1939-40 Attorney General's Report 216; 1933-34 Attorney General's Report 523. In 1965-66 Attorney General's Report 89, 90-91, then attorney general Frank L. Farrar addressed the identical question you have posed. He held that the incumbent state's attorney holds over in office, that there was no vacancy, and that the county commission could not appoint a new state's attorney.
Therefore, it is my opinion that the incumbent Walworth County states attorney is entitled to hold over in office until a successor is elected at a general election and qualified thereafter.
Respectfully submitted,
William Janklow
Attorney General
WJJ:MAG:brm
