STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

November 25, 1968

Roger L. Wollman
State's Attorney, Brown County
Aberdeen, South Dakota 57401

OFFICIAL OPINION NO. 68-43

Sanitary Sewer Districts formed under SDC 1960 Supp. 45.38. When there are no opposing candidates for election, election need not be held

Dear Mr. Wollman:

You have requested my official opinion in answer to the question submitted in connection with the following factual situation:

"The Warner Sanitary Sewer District, Brown County, South Dakota, which exists by virtue of SDC 1960 Supp. 45.13, in conformity with SDC 1960 Supp. 45.3814, as last amended by Chapter 228 of the Session Laws of 1967, will hold its annual election on November 26, 1968.

"At this time there is but a single candidate for the one vacancy on the Board of Trustees to be filled in such election.

"SDC 1960 Supp. 45.3814, as amended in 1967, provides that the annual election shall be held on the first Tuesday after the anniversary date of the first election, and then states:

'Such election shall be conducted according to SDC 45.13, and amendments thereto.'''

The question submitted is as follows:

"In view of the fact that SDC 45.1301 as last amended by Chapter 249 of the Session Laws of 1961, and Chapter 142 of the Session Laws of 1964 provides in part that:

'No election shall be held in any municipality, or ward thereof, . . . wherein there are no opposing candidates for any office; in case there are no opposing candidates the auditor or clerk shall issue certificates of election to the nominees, if any, in the same manner as to successful candidates after election.'

"Should this provision control so that there is no necessity of holding an election on November 26, 1968 in the Warner Sanitary District, but rather a Certificate of Election should be issued to the sole candidate for such position?"

It is my opinion that your question should be answered YES.

In my opinion 1965-66 AGR 328, I pointed out that while the 1964 amendments to SDC 1960 Supp. 45.3812 would control the time when the annual elections are to be held in a Sanitary Sewer District, the provisions of SDC 1960 Supp. 45.3814 stating such election should be conducted according to SDC 45.13 was still effective and controlled the conduct of such election. This language in SDC 1960 Supp. 45.3814 was neither omitted nor changed in the amendment of such statuted by Chapter 228 of the Session Laws of 1967. I must adhere to my former opinion, and again reiterate that it is my opinion that elections in Sanitary Districts formed in pursuance to SDC 1960 Supp. 45.38, and acts amendatory thereof, are governed by the provisions of SDC 45.13, and amendments of that statute.

As SDC 45.13, as amended, provides that an election may be dispensed with when there are no opposing candidates for such offices, but rather that a certificate of election is issued in lieu of such election, such provision applies to the annual election in the Warner Sanitary Sewer District.

Respectfully submitted,

Frank L. Farrar
Attorney General