STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 27, 1969

D. G. Syvertson
State's Attorney, Clark County
Clark, South Dakota 57225

OFFICIAL OPINION NO. 69-58

Effect of House Bill No. 804, 1969 Legislature, amending Single Registration Law on election held in July, 1969

Dear Mr. Syvertson:

You have advised that shortly after July 1, 1969, perhaps prior to July 15, the City of Clark, South Dakota will hold a bond election. Your County Auditor, under the "Single Registration Law" (Ch. 92, Laws of 1961, which was compiled in SDCL 1967 as Chapters 12-4), must prepare the registration lists used at such election and is seeking advice as to what effect, if any, House Bill No. 804 enacted by the 1969 Legislature will have on such registration lists to be furnished for such municipal election.

The specific questions presented are as follows:

"1. Assuming such election is held prior to July 15, 1969, when does the auditor close the registration books in order to prepare the registration lists to be furnished for such election?

"2. May electors register at the polls of such municipal election held between July 1 and July 15, 1969?

"3. Are previously qualified registered electors qualified to be placed on the registration list for such municipal election?"

For convenience, I will designate House Bill o. 804 of the 1969 legislative assembly as the "1969 Amendment." I will designate the original enactment of the Single Registration Law, Ch. 92, Laws of 1961, as "the 1961 Law." I will cite the sections of the "1961" law rather than SDCL 1967, for the reason that the 1969 amendment so amended such 1961 law.

To understand the questions you have submitted, it should be pointed out that the 1969 amendment varied the original 1961 law by requiring qualified electors to apply for registration as an elector, upon a registration card, executed in duplicate, which contains a "permanent serial number" (Sec. 1, 1969 amendment). The form of such registration card was not changed. To be valid, the County Auditor must "sign and stamp the same and return the duplicate registration card" to the applicant. (Sec. 4, 1969 amendment.) Section 5 of the 1969 amendment prohibits registration of an elector at the poll. All of these requirements are new and do not exist.

The 1969 amendment did not contain an emergency clause, and therefore, the statute (SDC 55.0607; SDCL 2-14-16) becomes effective July 1, 1969. The body of the amendment is consistent with this effective elate.

It is fundamental in South Dakota that in the absence of an express statement of intent, no statute or amendment is given a retrospective application, but rather is prospective in nature only.

See: American Investment Co. v. Thayer, 5 SD 410, 59 NW 212;

American Investment Co. v. Thayer, 7 SD 72, 63 NW 233;

Clark Implement Co. v. Wadden, 34 SD 550, 149 NW 424, LRA 1915C 414;

Fed. Farm Mtg. Co. v. Noel, 66 SD 481, 285 NW 871;

Fed. Land Bank v. Vetter, 66 SD 653, 287 NW 636;

Re Sadler’s Estate, 73 SD 56, 38 NW 2d 879.

As no such intention that such be retrospective in operation is contained in the 1969 amendment, I must find that it applies only after July 1, 1969.

QUESTION 1: The Single Registration Law in effect until July 1, 1969, requires the refusal to register voters within twenty days of any particular election. The 1969 amendment changes this to within fifteen days. (Sections 2 and 4 of the 1969 amendment.) This change in the time to "close the registration books" applies only after July 1, 1969.

My answer to Question 1 is that the registration books, in conformity to the then applicable statutes, must be closed twenty days before such election.

QUESTION 2: The election will be held at the time that the 1969 amendment is effective. It is my opinion that such 1969 amendment applies, and no elector can register at the polls of such municipal bond election held after July 1, 1969.

QUESTION 3: This represents the most vexatious problem raised by the 1969 amendment. We can appreciate that in the original 1961 amendment the Legislature in Section 25 thereof provided that all persons who were registered as qualified voters on the effective date of such act (July 1, 1961) would remain as valid registered electors. The 1969 amendment did not repeal such section, and in addition, did not contain a savings clause similar. In fact, Section 5 of the 1969 amendment repealing and re-enacting Section 21 of the original 1961 Act, in part provides:

"No person shall vote in any election unless registered as herein provided. Any per on whose name appears on the registration list of the possession of the election judges shall be entitled to vote."

The answer to the question presented must be determined by ascertaining, if possible, who the Legislature intended the County Auditor should list as eligible voters in the particular election involved. Was such limited to those persons who had registered in accordance with the 1969 amendment only, or should such registration list, in addition to those electors registering in accordance with the 1969 amendment, also include those persons who had lawfully registered as electors in accordance with the 1961 enactment, and those admitted to registration by Section 25 of the original 1961 Act? Except in those cases after July 1, 1969, the duplicate registration card is of no importance to the election processes in this state. As to those persons who were lawfully registered as voters prior to the effective date of the 1969 amendment, their names should appear on the registration lists.

Our court has consistently held that when it must interpret any statute, it will not interpret a statute in a manner to assume the intention on the part of the Legislature to require an absurd, useless, or unjust thing. (Lawrence County v. Meade County, 6 SD 528, 62 NW 131, and Red Wing Sewer Pipe Co. v. City of Pierre, 36 SD 276, 154, NW 712.) Our court in Rosebud Lumber & Coal Co. v. Ryan, 67 SD 72, 289 NW 81 has gone so far as to hold that if the language used by the Legislature, by proper grammatical construction, would result in an injustice, inconvenience, or absurdity, not intended by the Legislature, the court can modify the language so as to express the legislative intent on the theory that the modification has been made to merely correct the careless language of the Legislature.

In applying the direction of our court to the 1969 Amendment, it is my opinion that it would result in an absurdity to say that the only way that pure and honest elections can be maintained in South Dakota is for every qualified elector to be registered in conformity to the requirements of such amendatory act. It would result in an injustice and require a useless expenditure of energy of both the electorate and the public officials who by law are required to process such registration. It is axiomatic in the factual situation here presented, that requiring all electors to re-register in conformity with the 1969 amendment to the Single Registration Law would result in few, if any, persons being eligible to vote at the election involved. It is my opinion that Question 3 must be answered that all qualified electors who, prior to the effective date of the 1969 amendment, were properly registered as a qualified elector should be contained on the registration lists furnished for the municipal bond election in question.

Respectfully submitted,

Gordon Mydland
Attorney General