STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 19, 1968

Richard A. Duncan
State's Attorney, Hughes County
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-51

Time elected County Superintendent of Schools takes office when office filled by appointee. SDC 1960 Supp. 15.1001, as amended by Ch. 66, Laws of 1961

Dear Mr. Duncan:

You have requested an official opinion based upon the following factual situation:

"In March, 1968 the duly elected County Superintendent of Schools resigned and in April, 1968 the County School Board met and appointed 'A' as 'acting County Superintendent of Schools for the County for the unexpired term.'

"In the general election of 1968 'E' was elected to be County Superintendent of Schools. Following his election 'E' has tendered a surety bond required by statute, and has demanded the oath of office be administered so that he may immediately assume office."

The question you have propounded in connection with this factual situation is as follows:

"When does the term of office for 'B' as County Superintendent of Schools commence? Does such term of office commence at the time specified in SDC 1960 Supp. 15.1001, as amended by Chapter 66 of the Session Laws of 1961, or may 'E' take office as soon after the election as she can file the requisite bond and take the oath of office?"

In my opinion reported in 1965-66 AGR 108 I discussed when a duly elected County Superintendent of Schools could resign to create a vacancy in such office. In such opinion I held that such resignation could not occur until the first Monday in June following election, because SDC 1960 Supp. 15.1001, as amended by Ch. 66 of the Session Laws of 1961 provided the term of office of County Superintendent of Schools commenced beginning on the first Monday in June succeeding his election.

Does this determination apply to the situation you have presented? It is my opinion that it does and that while "E" may, if he so chooses, file a bond and take the official oath of office, prior to the first Monday in June, 1969, he cannot assume the duties of the office until such first Monday in June.

It is my opinion that the provisions of SDC 48.0-106 and 48.0311, together with the opinions of our Court in State ex rel Hellier v. Vincent (1905) 20 SD 90, 104 NW 914, and Noel v. Cunningham (1942) 68 SD 606, 5 NW 2d 402, make it clear that there is no vacancy in any county office when such office is filled by a duly appointed, qualified and acting officer. This being true, a person elected to fill a full term of such county office cannot assume such office until the term, commencing after such election, begins as prescribed by statute.

In the case of the County Superintendent of Schools, SDC 1960 Supp. 15.1001, as amended by Chapter 66 of the Session Laws of 1961, provides such term commences on the first Monday in June succeeding such election.

In the factual situation you have presented, until and unless "A" either resigns or vacates the office of County Superintendent of Schools, "E" cannot assume the duties and functions of such office until the first Monday in June, 1969.

Respectfully submitted,

Frank L. Farrar
Attorney General