April 1, 1982

Mr. Kenneth R. Dwell 
Fall River County State's Attorney 
Fall River County Courthouse 
Hot Springs, South Dakota 57747

Official Opinion No. 82-19

Interpretation of House Bill 1005

Dear Mr. Dewell:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

The Board of County Commissioners of Fall River County continued the at large election of its county commissioners by taking no formal action pursuant to HB 1005 (effective January 28, 1982) reading as follows: 

Any county that is apportioned on an at large basis on the effective date of this Act need not reapportion in 1982.

Based on the above facts, you have asked the following question:

QUESTION: 

May the voters of Fall River County refer the Board's decision to a referendum election or, in the alternative, may they seek to initiate a petition to change the method of electing commissioners from a large to commissioner representative districts?

SDCL 7-8-10 provides: 

The board of county commissioners, at its regular meeting in February of each year ending in the numeral 2, after giving notice by publication for one week in the official newspapers of the county, shall change the boundaries of the commissioner districts if such change is necessary in order that each district shall be as regular and compact in form as practicable and it shall  so divide and redistrict its county that each district may contain as near as possible an equal number of residents, as determined by the last preceding federal decennial census; or the board may, at its discretion, choose to have all of its commissioners run at large.

House Bill No. 1005, § 1A (1982 Session) provides: 

Any county that is apportioned on an at large basis on the effective date of this Act need not reapportion in 1982.

SDCL 7-18A-9 provides: 

The right to propose ordinances and resolutions for the government of a county shall rest with a number of qualified voters equal to at least ten percent of the total votes cast for Governor in the county in the last gubernatorial election.

SDCL 7-18A-15 provides: 

Any ordinance or resolution adopted by a board of county commissioners may be referred to a vote of the qualified voters of the county by the filing of a petition signed by a number of qualified voters equal to at least five per cent of the total votes cast for Governor in the county in the last gubernatorial election, except such ordinances and resolutions as may be necessary for the immediate preservation of the public peace, health or safety, or for the support of the county government and its existing public institutions.

In view of the foregoing statutes, it is my opinion that a decision by a board of county commissioners to have county commission candidates run at large is subject to both referendum and initiative.

With respect to referendum (§ 7-18A-15), it is my opinion that although no formal resolution or ordinance was adopted in 1982 (per HB 1005), the decision by inaction of the board is referrable (see SDCL 7-14-12), provided the petition to refer the board decision is filed within the time prescribed by SDCL 7-18A-16.  The time required in this case, it seems to me, would be within twenty (20) days of the first possible publication of the board minutes following the regular February meeting.

With respect to initiative (§ 7-18A-9), it is my opinion that notwithstanding AGR 76-58, the public does have the authority through initiative to require districting and at any time. Therefore, to the extent AGR 76-58 is inconsistent with this opinion, it is expressly overruled.

Respectfully submitted,

Mark V. Meierhenry
Attorney General