May 24, 1990

Ms. Bernita Pense
Corson County Register of Deeds
P.O. Box 247
McIntosh, SD 57641

OFFICIAL OPINION NO. 90-17

Referability of county voting precinct consolidation measure

Dear Ms. Pense:

On behalf of Corson County, you have requested my opinion regarding the following question:

FACTS:

In the minutes of the Board of County Commissioners proceeding dated February 6, 1990, and published in the Corson County News February 22, 1990, was a resolution which pertained to the combination of several voting precincts. Upon publication of the said minutes, petitions were circulated and filed with the Corson County Auditor to refer this particular resolution. The petitions referred the resolution in its entirety. It has been suggested that this resolution is not referable, and therefore, the filed petitions are not binding as to cause a special election.

QUESTION:

Is this action by the Board of County Commissioners subject to the referendum process?

IN RE QUESTION:

In SDCL 7-18A-1, the State Legislature defines the two types of measures undertaken by county commissions. 7-18A-1. Terms used in this chapter, unless the context plainly requires otherwise, shall mean: 

(2) "Ordinance," a permanent legislative act of a board of county commissioners passed within the limits of its powers;

(4) "Resolution," any determination, decision or direction of a board of county commissioners of a special or temporary character, made for the purpose of initiating, effecting or carrying out its administrative duties and functions. (Emphasis added.)

The fact that county resolutions are deemed "administrative" is of key importance.

Art. III, 1 of the South Dakota Constitution, which provides for initiative and referendum, is relatively concise. It contains the following statement, however. "The legislature shall make suitable provisions for carrying into effect the provisions of this section." On the basis of that statement, the South Dakota Supreme Court has determined that the State Constitution anticipates and authorizes action by the State Legislature to provide detail for the initiative and referendum processes. "This constitutional provision is not self-executing. The constitution expressly directs the Legislature to make suitable provisions for carrying the constitutional provisions into effect." Headley v. Ostroot, 76 N.W.2d 474, 475 (S.D. 1956). Thus, any State legislative decision regarding referability of county measures is both appropriate and binding.

SDCL 7-18A-15.1 provides the following statutory direction:

7-18A-15.1. Any legislative decision of a board of county commissioners is subject to the referendum process. A legislative decision is one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision.

No administrative decision of a governing body is subject to the referendum process, unless specifically authorized by this code. An administrative decision is one that merely puts into execution a plan already adopted by the governing body itself or by the Legislature. Supervision of a program is an administrative decision. Hiring, disciplining and setting the salaries of employees are administrative decisions.

The State Legislature clearly has determined that county administrative measures shall not be subject to the referendum process. Thus, since "resolutions" are "administrative" in nature, a county commission's resolution is not referable by dictate of the Legislature.

The statute that requires a county commission to define election precincts and establish polling places within precincts is SDCL 12-14-1. That statute reads as follows:

12-14-1. The board of county commissioners shall by resolution provide for election precincts throughout its county and shall designate polling places within such precincts. The board shall establish new election precincts when required by the provisions of this chapter or 2-2-22, and may by resolution change the boundaries of election precincts already established. The precincts and polling places shall be the same for all elections except where election by ward or a boundary other than a precinct is required for the purposes of a local election and would be inconsistent therewith. In such event, the governing board may establish its precincts for the purposes of its elections. The county auditor shall keep separate lists of voters living within the boundaries of the municipality and outside the boundaries for the purpose of municipal and school elections.

Clearly, the State Legislature has determined that actions such as that taken by the Corson County Board of County Commissioners are resolutions. It follows, then, that those actions are administrative by legislative decree and, consequently, are not amenable to referendum.

The answer to your question is, "No," the precinct consolidation measure passed by the Corson County Board of Commissioners is not subject to the referendum process.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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