STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 1, 1969

John L. Foley
State's Attorney, Codington County
Watertown, South Dakota 57201

OFFICIAL OPINION NO. 69-60

Appointment of vacancy on Sanitary District Board of Trustees

Dear Mr. Foley:

You have asked for an official opinion on the following factual situation:

"One of the members of the Board of Trustees of the X Sanitary District is contemplating leaving the state, so a vacancy on the Board of Trustees will arise."

Your specific questions are:

"Is a member of the Board of Trustees of a Sanitary District, organized under SDCL 1967, Chapter 34-17, a 'district office' within the meaning of SDCL 1967 S3-4-3(1), so that a vacancy on the Board could be filled by the Governor? If not, would you point out the procedure for filling vacancies on the Board?"

There is no provision for vacancies in the Sanitary District Law. Where not otherwise superseded, as in this instance, Chapter 3-4, SDCL 1967, "Vacancies in Office," would apply.

SDCL 1967 S3-4-3 provides:

"Appointments to fill vacancies-By whom made,-All vacancies, except in the office of a member of the Legislature, representative in Congress, and United States Senator, shall be filled by appointment, as follows:

(1) In state and district offices, and the office of supreme, circuit, and county judge, by the Governor;

(2) In county and precinct offices, except the office of county judge, by the board of county commissioners, except vacancies on such board;

(3) In civil township offices, by the justice of the peace of the township, together with the board of supervisors or a majority of them, by warrant under their hands; and if a vacancy occurs from any cause in the foregoing board of appointment the remaining officers of such board shall fill any vacancy therein. (Emphasis added,)"

All vacancies are to be filled by appointment with the exception only of those named offices. By the process of elimination, it can be seen that a Sanitary District trustee is not a state, county, precinct, or township officer. The only office remaining would be a district office. Accordingly, such vacancy would have to be filled by appointment by the Governor.

Logic would also support this conclusion. A Sanitary District is not confined to one political subdivision. The only restriction upon its area, is that it be within the State of South Dakota. The only person authorized to make appointments over the whole state is the Governor.

Respectfully submitted,

Gordon Mydland
Attorney General