STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 11, 1968

Howard H. Hanson, Director
South Dakota Service to Blind
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-36

Eligibility for assistance to the blind is not changed by adoption of new Federal laws changing Federal eligibility to the blind

Who is resident of state for purposes of assistance to the blind? SDC 1960 Supp. 55.3907

Dear Mr. Hanson:

You have advised that by virtue of the 1967 Amendment (Public Law 90-99) to the Federal Vocational Rehabilitation Act, effective July 1, 1969, the Federal Act has removed the requirements that a recipient of rehabilitation services under such Federal Act are removed and eligibility may be gained by being present in the state at the time of application for such assistance. SDC 1960 Supp. 55.3907 in part provides as follows:

"Services shall be provided to any blind person:

(1) who is a resident of the state at the time of filing his application . . .

(2) who is eligible therefor under the terms of an agreement with another state or with the Federal Government, . . ."

SDC 1960 Supp. 55.39B05 provides that your Division of State Government shall cooperate with the Federal Government in carrying out the purposes of Federal statutes pertaining to vocational rehabilitation.

Your question in regard to such factual situation is as follows:

"In the absence of a written agreement between the Federal officials of the Rehabilitation Services Administration, a division of the Federal Department of Health, Education and Welfare, did the amendment of the Federal Vocational Rehabilitation Act in removing the mandate of residency and replacing it by presence in the state, because of the cooperation between the South Dakota Service to the Blind and the Federal Government, remove the requirement of residency and replace it with physical presence in the State of South Dakota to be eligible for benefits under SDC 55.39B?"

It is my opinion that this question must be answered NO. The cooperation required by the cited statute of itself does not constitute an agreement on the part of your division that every change of Federal satutes will immediately become binding upon your department. Your department, being but a creature of the Legislature, must of necessity follow the mandates of the Legislature in the operation of the division.

The Legislature has spoken-and directed that no person is eligible for services unless (1) he is a resident of the state at the time of filing his application for assistance; or (2) is eligible for such assistance by virtue of an agreement with the Federal Government or another state.

The term "agreement" comprehends some form of a contractual relationship between your division and the proper representatives of the foreign state or Federal Government. The enactment of statutes by the Federal Congress of itself shows no "agreement" between the Federal Government and the state. Nor does cooperation in a particular program of itself envision an "agreement" ipso facto.

You have also asked what constitutes a "resident of the state" under SDC 1960 Supp. 55.39B.

As the statute itself fails to define the legislative intention as to who qualifies as a resident, it is my opinion the same should be defined consistent with the provisions of the statute in question. As the court has said in Russell v. Holland, 309 Mass 187, 34 NE 2d 668:

"The word 'residence' is a word of various meanings and the meaning to be given it depends on the context in which it appears and it must be construed in the light of the purpose of the statute in which it appears and the result designed to be accomplished by its use."

Certainly, by the use of the term "resident of the state" the Legislature must have intended something more than mere physical presence in the state. On the other hand, it may seriously be argued that the Legislature did not intend that such term should mean a "residence" for voting purposes, which is defined in Article VII, Section 2 of our Constitution requiring such shall reside within the state for a period of one year, in the county for ninety days and in the election precinct thirty days prior to the election in question. The term "resident" as used in the statute may well encompass a situation somewhere between these extremes-one of mere physical presence, and the other which requires a "domicile" for voting purposes.

Ultimately the courts of our state will have to give a proper definition to the term. In any particular factual situation presented your division, until a definitive answer comes, either from the court in interpreting the statute or the Legislature in defining the authority and duty of your department, you will have to be guided by your own best evaluation of the situation presented.

In the interest of furnishing you a general policy in making the determination in such individual factual situation as presented, I would refer you to the decisions of our Supreme Court in Re Appeal of Lawrence County, 71 SD 49, 21 NW 2d 57, and Spurlin v. Siebraase, 74 SD 150, 49 NW 2d 604 wherein our court held:

"A residence is established by personal presence in a fixed and permanent abode with the intent of remaining there."

and to the opinion of the court in Re Duren, 335 Mo. 1222, 200 SW 2d 343, 170 ALR 391:

"The word 'residence' means the place where one resides, or sits down or settles himself, and is largely a matter of intention not involving dominion over the particular spot or domicile. Nevertheless, it ordinarily implies something of permanence or continuity at least for an indefinite period, to the exclusion of other contemporaneous residence."

I am hopeful that these last statements may assist you and your division in adopting or confirming a policy towards who are "residents of the state" for eligibility for assistance to the blind.

Respectfully submitted,

Frank L. Farrar
Attorney General