November 23, 1982
Mr. Tom D. Tobin
State's Attorney
Tripp County Courthouse
Winner, South Dakota 57580
Official Opinion No. 82-64
Date Newly-Elected County Commissioners Take Office When Replacing Appointees
Dear Mr. Tobin:
You have requested an official opinion from this office based upon the following factual situation:
FACTS:
Due to an ongoing dispute with the United States Justice Department, general elections were not regularly held in Tripp County from 1976-1981. All three county commissioners, whose regular terms would have expired between 1976-1981, vacated their positions, as that term is defined in SDCL 3-4-1, and successors were appointed pursuant to SDCL 3-4-4 on October 3, 1978, January 5, 1982, and January 19, 1982. The minutes of the Tripp County Commissioners indicate that the commissioner appointed on October 3, 1978, was to fill the unexpired term of Commissioner Warren Sealey; the commissioner appointed January 5, 1982, was to serve 'until such time that the post is filled by an election,' and the commissioner appointed on January 19, 1982, was appointed 'as Tripp County Commissioner for District #3.'
At the November 2, 1982, general election, three new commissioners were elected.
The current state's attorney was elected in the 1976 general election. His original term would have expired on December 31, 1980. No general election was held in 1980 and no successor state's attorney was elected or appointed, therefore, the current state's attorney continues to hold office. At the November 2, 1982, general election, a new state's attorney was elected.
The appointed commissioners and the present state's attorney are holding over in their offices pursuant to the terms of a consent decree with the U.S. Department of Justice.
Based upon the above, you have asked the following questions:
QUESTIONS:
1. Do the three appointed Tripp County commissioners continue to hold office until the first Monday of January, 1983, or are the newly-elected commissioners required to take office as soon as they are duly elected and qualified?
2. Is the Tripp County State's Attorney an 'incumbent' entitled to hold office until the first Monday, 1983, or is the newly-elected state's attorney required to take office as soon as he is duly elected and qualified?
3. Can either the newly-elected commissioners or the newly-elected state's attorney be duly 'qualified' prior to the first Monday of January, 1983, under SDCL 3-1-2 which provides, in part, that 'county officers shall qualify and enter upon the duties of their office on the first Monday of January succeeding their election or within twenty days thereafter?'
SDCL 3-1-2 provides, inter alia, that 'all state, district, and county officers shall qualify and enter upon the duties of their office on the first Monday of January succeeding their election or within twenty days thereafter.'
SDCL 3-4-6 provides, inter alia, that 'appointment . . . shall be made in writing, and made to continue until the next general election at which the vacancy can be filled, and until a successor is elected and qualified.'
SDCL 7-7-1 provides as follows:
Except when otherwise expressly provided, the regular term of office for all county officers, when elected for a full term, shall commence on the first Monday in January next succeeding their election, except the office of county auditor, the term of which shall begin on the first Monday of March next succeeding his election. If the office to which any officer was elected be vacant at the time of his election, or becomes vacant after such election, even if he was not elected to fill a vacancy, he shall forthwith qualify and enter upon the duties of his office.
The first question above, as to whether the county commissioners-elect are required to immediately assume their duties, turns upon whether the offices of county commissioner can be considered 'vacant.' SDCL 3-4-1 sets out the conditions which constitute vacancy of any office:
Every office shall become vacant on the happening of any one of the following events before the expiration of the term of such office:
(1) the death of the incumbent;
(2) his resignation;
(3) his removal from office;
(4) his failure to qualify as provided by law;
(5) his ceasing to be a resident of the state, district, county, township, or precinct in which the duties of his office are to be exercised or for which he may have been elected;
(6) his conviction of any infamous crime or of any offense involving a violation of his official oath;
(7) whenever a judgment shall be obtained against him for breach of his official bond.
The South Dakota Supreme Court in Noel v. Cunningham, 68 S.D. 606, 5 N.W.2d 402, 403 (1942), held that an office is not vacant 'so long as there is an incumbent lawfully authorized to exercise the powers and duties which pertain to it.' An incumbent is one who is in present possession of an office, Justice v. Campbell, 241 Ark. 802, 410 S.W.2d 601, 602 (1967), and legally authorized to discharge the duties of that office. Ibid. The fact that the current county commissioners were appointed does not diminish their status as incumbents and, therefore, the county commissioner positions are not vacant. Consequently, it is my opinion that the appointed county commissioners are entitled to serve until the first Monday of January, 1983, or until their successors qualify, when the newly-elected commissioners, elected to a full term, will take office. This does not conflict with State ex rel. Rearick v. Board of County Commissioners, 34 S.D. 256, 145 N.W. 548 (1914), nor with Official Opinion 72-34. In both situations presented therein, the question of whether an appointment continues until the next general election or for the remainder of the unexpired term of office, was settled by holding that an appointment is valid only until the next general election when a successor could be elected and qualified. The voters of Tripp County have spoken regarding membership on the county commission, but the voters' choices will have to wait until they qualify on the first Monday of January, 1983, to serve on the county commission.
As to Question No. 2, it is my opinion that the current Tripp County state's attorney is an 'incumbent' entitled to hold office until the first Monday of January, 1983. In common usage, the word 'incumbent' means a person who is in present possession of an office. It is not limited, qualified, or restricted by the method by which one attained the office. Keller v. Smith, 170 Mont. 399, 553 P.2d 1002, 1006 (1976); see, also, Justice v. Campbell, supra. The fact that the current state's attorney was not re-elected in 1980-- as no election was held--is irrelevant to a determination of whether he is an incumbent. He holds office legally and is empowered to perform the functions of that office until the state's attorney-elect is qualified. Noel v. Cunningham, supra, and SDCL 7-7-1 support this result.
As to Question No. 3 regarding the time of qualification for public officers, SDCL 3-1-2, noted above, clearly mandates that officers qualifying assume their duties on the first Monday of January succeeding their election or within twenty days thereafter. It is my opinion that the foregoing prohibits both the county commissioners and state's attorney-elect from qualifying prior to the statutory period.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
