STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 15, 1975

Mr. Jack T. Klauck
Pennington County State's Attorney
Suite 36, Courthouse
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 75-155

Qualifications of deputy sheriff

Dear Mr. Klauck:

You have submitted the following questions for an official opinion:

1. Do deputy sheriffs have to have the same qualifications as the sheriff?

2. May a deputy sheriff be hired from another county and live outside the county?

3. If the sheriff has to conform to residency requirements and the deputies receive their power from the elected sheriff, does the deputy have to have the same requirements as the sheriff?

4. Does SDCL 7-12-1 mean the sheriff is empowered to call aid from persons from his county? If so, does this mean deputies must be from or living in the county where deputized?

5. In reference to service of process under SDCL 15-6-4( c) does this mean process must be served only by the sheriff and by an elector of the county? Would this mean that a deputy that was not an elector of the county could not serve civil process?

The Legislature has provided that deputy sheriffs qualify for that office in the following manner:

SDCL 7-12-10. The appointment of each deputy, jailer and clerk shall be made by the board of county commissioners, on the recommendation of the sheriff, in writing, filed with the county auditor. Such appointment may be revoked in the same manner. Each deputy, jailer, clerk, as the case may be, shall qualify by subscribing the official oath and shall give such bond to the board of county commissioners for the discharge of their duties as the board of county commissioners may require.

In addition, the Legislature has established a Law Enforcement Officers Standards Commission empowered to establish qualifications for appointed officers (SDCL 23-3). SDCL 23-3-42 specifically provides:

SDCL 23-3-42. In addition to the requirements of § 23-3-41, the commission, by rules and regulations, shall fix other qualifications for the employment and training of appointed law enforcement officers, including minimum age, education, physical and mental standards, citizenship, good moral character, experience, and such other matters as relate to the competence and reliability of persons to assume and discharge the various responsibilities of law enforcement officers, and the commission shall prescribe the means for presenting evidence of fulfillment of these requirements.

As of this date the Commission has held a hearing pursuant to the Administrative Procedures Act to adopt rules implementing said statute. Minimum standards are prescribed in Chapter 2:01:02, a copy of which is herewith enclosed.

The statutory requirements of SDCL 7-12-10 are of a procedural nature and do not address the personal qualifications of a prospective deputy sheriff. It is my opinion that the sheriff may recommend and the Board of County Commissioners appoint any person who meets the qualifications prescribed by rules finally adopted by the Law Enforcement Officers Standards Commission. The sheriff must use discretion, however, since he is responsible for the acts of each deputy. (SDCL 7-12-11.) I also refer you to 1917-18 AGR 411 and 1931-32 AGR 473 wherein a similar statute concerning appointment of deputies for other county offices is interpreted as not prohibiting a minor from serving as a deputy county official. The answer to your Question No. 1 is NO.

The answer to your Question No.2 is YES. In the absence of a statutory or rule requirement that a deputy sheriff be a resident of the county in which he is appointed, he is subject only to any administrative policies and rules of his principals regarding performance of duties. In view of the geography of some of the counties in the state, I can conceive of situations in which it may be more practical and economical for a deputy to live and perform his duties somewhere other than in the immediate proximity of the county seat.

The answer to your Question No.3 is NO. As is hereinbefore stated, an appointed deputy as distinguished from an elected sheriff must only meet the prerequisites for appointment set out in SDCL 7-12-10 and the qualifications established pursuant to SDCL 23-3-42.

Your Question No. 4 involves the provisions of SDCL 7-12-1 which states:

SDCL 7-12-1. The sheriff shall keep and preserve the peace within his county, for which purpose he is empowered to call to his aid such persons or power of his county as he may deem necessary. He must pursue and apprehend all felons, and must execute all writs, warrants, and other process from any court or magistrate which shall be directed to him by legal authority.

This section prescribes the jurisdictional boundaries within which a sheriff is to perform his duties. It also authorizes him to call private citizens and other peace officers within the county to his aid. I am of the opinion that the statutory words, "or power of his county," were intended to mean those law enforcement officers whose jurisdiction is within the county. A qualified and duly appointed deputy sheriff has law enforcement powers in the county of his appointment regardless of place of residence. The answer to your Question No.4 is NO. A deputy need not live in the county where deputized.

In regard to your Question No.5, the relevant portion of SDCL 15-6-4(c) states:

SDCL 15-6-4(c). The summons may be served by the sheriff of the county or other comparable political subdivision where the defendant may be found, or in the District of Columbia by the United States marshal or one of his deputies, or by any other person not a party to the action who at the time of making such service is an elector of the county or other comparable political subdivision in which such service is to be made ...

As you have stated, the statute makes no specific reference to service of process by a deputy sheriff. Therefore, other statutes must be looked to for the authority and duties of deputies.

It is interesting to note that other deputy county officers are authorized to "sign all papers and do all other things which the officers themselves may do respectively, ... " (SDCL 7-7-22). However, deputy sheriffs are not therein listed nor does specific authority appear in any other provisions relating to deputy sheriffs. Nevertheless, I am of the opinion that the following provisions cumulatively authorize a deputy sheriff to perform duties of the sheriff, including service of process.

SDCL 7-12-9. If in the judgment of the board of county commissioners, it shall be necessary for the prompt dispatch of business in the office of the sheriff that one or more deputies, jailers or clerks be appointed therein, the board shall by resolution fix the number of such deputies, jailers or clerks and the compensation which they shall receive. The salary of each clerk, jailer and deputy shall be paid out of the county general fund.

SDCL 7-12-11. The sheriff shall be responsible for the acts of each such deputy, jailer and clerk in the performance of the duties of his office, provided, however, that the sheriff may relieve any deputy, jailer or clerk of any or all official responsibilities and duties, summarily.

SDCL 7-12-6. . .. When the sheriff is disqualified or incapacitated, a deputy sheriff shall exercise the powers and duties of the office of sheriff so far as such disqualification or incapacity of the sheriff involved same.

Therefore, a deputy sheriff need not be an elector of the county in which deputized in order to serve process pursuant to SDCL 15-6-4(c). The answers to your Questions in item No.5 are both NO.

Respectfully submitted,

William Janklow
Attorney General

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