February 23, 1990

Julie A. Johnson
Pennington County Auditor
315 St. Joseph Street
Rapid City, SD 57701

OFFICIAL OPINION NO. 90-13

Petition signature dates for combined county office

Dear Ms. Johnson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS:

Candidates for partisan elective office must circulate petitions of nomination on a form prescribed by the State Board of Elections. This form requires the candidate to sign and date a Declaration of Candidacy. Signatures on the petition must be dated and cannot predate the date of signature on the candidate's Declaration of Candidacy. Also, petitions cannot be circulated prior to January 1 of the election year.

The Pennington County Board of Commissioners is proceeding to combine the County Offices of Auditor, Register of Deeds, and Treasurer pursuant to SDCL 7-7-1.2. As presently scheduled, the Ordinance combining the Offices will become effective February 21, 1990, if not referred prior to that time.

Based upon the above facts, you have asked the following question:

QUESTION:

Are signatures on a candidate's petition valid when obtained prior to the effective date of the ordinance (or proposed ordinance) creating the combined office to which the candidate aspires?

IN RE QUESTION:

SDCL 7-18A-8 provides that "every resolution or ordinance passed by a [county] board shall take effect on the twentieth day after its completed publication unless suspended by operation of a referendum." As you noted in your factual statement, the ordinance combining the offices consequently will become effective on February 21, 1990. As you further noted, SDCL 12-6-4.1 generally allows a nominating petition for election to office to be circulated as early as January 1 of the year of the election. SDCL 7-7-1.3 applies general county election law to elections for newly combined county offices. Thus, stated another way, your question is whether petitions may be circulated and signed for an office that technically does not exist at the time of the signing.

Statutory construction is necessary to answer your question. The first such tenet of construction applicable here is found in State v. Feiok, 364 N.W.2d 536 (S.D. 1985). "It is a fundamental principle of statutory construction that in determining legislative intent a court `must assume that the legislature in enacting a provision has in mind previously enacted statutes relating to the same subject matter.' [Citations omitted.]" Id. at 539. Here, the base provisions allowing combination of county offices were enacted in 1976. S.L. 1976, ch. 66, 1 and 2. The legislation allowing petition circulation as early as January 1 of an election year was enacted in 1977. S.L. 1977, ch. 108, 5. Applying the Feiok tenet of statutory construction, one has no choice but to conclude that the State Legislature was aware in 1977 when enacting the petition circulation date statute that combined county offices, allowed a year before, might spring into being after January 1 of an election year. Nonetheless, the Legislature did not specify any exception or special provision regarding the January 1 date. I then conclude that the Legislature intended to allow nominating petition circulation prior to the new office officially coming into being.

An additional rule of statutory construction requires that all statutory provisions be given effect whenever possible. ". . . [I]t is our duty to reconcile [apparently contradictory laws] and to give effect, if possible, to all of the provisions under consideration, construing them together to make them harmonious and workable." North Central Investment Co. v. Vander Vorste, 135 N.W.2d 23, 27 (S.D. 1965). As noted above, one properly should conclude that the Legislature intended that petition circulation commence on or after January 1 for a new county office that does not yet exist. Further, although circulation of petitions for a technically nonexistent office may seem odd, the two statutes do not actually conflict in operation. Consequently, both statutes can and should be granted full vitality and effect.

One may argue that allowing circulation of nominating petitions prior to the effective date of the ordinance is tantamount to giving it an early effective date, in violation of SDCL 17-18A-8. Early partial application of a law, however, is not always viewed in that light. "Merely because the statute has some retroactive application, however, does not mean the statute `takes effect before that date.'" Homestake Mining Co. v. Johnson, 374 N.W.2d 357, 363 (S.D. 1985). Pre-effective date petition circulation does not negatively impact the new ordinance.

As a side note, such petitions would have to accurately specify the title of the new office. SDCL 12-6-5 grants authority to the State Board of Elections to establish the required format for nominating petitions. A Board rule, ARSD 5:02:08:01, sets requirements for petitions used for nomination to a new, combined county office. The required form includes instructions which mandate that a petition form be filled out accurately and completely, including the title of the office sought, prior to petition circulation.

The answer to your question is that nominating petition signatures gathered prior to the effective date of an ordinance (but, of course, after its passage) creating the combined county office are valid.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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