December 17, 1981
Mr. John J. Delaney
215 W. Main Street
Post Office Box 898
Lead, South Dakota 57754
Official Opinion No. 81-48
Municipal Redistricting Following Annexation
Dear Mr. Delaney:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
A post-annexation redistricting plan for the City of Spearfish involves the following assumptions and facts:
1. Assumption: That the city's on-going annexation plans for approximately 1,000 acres lying north and west of the city will be successfully concluded in April, 1982.
2. The city's 5,200 people are presently divided into three wards, each represented by two aldermen.
3. The area to be annexed contains just over 2,000 people.
4. Specific statutory authorities dealing with the division of the municipality into wards and the redistricting of municipalities were repealed by the 1974 Legislature. These provisions were formally codified as SDCL 9-2-5 and 9-2-6.
5. SDCL 12-14-1, in pertinent part, provides as follows:
The precincts and polling places shall be the same for all elections except where election by ward or a boundary other than a precinct is required for the purposes of a local election and would be inconsistent therewith. In such event, the governing board may establish its precincts for the purposes of its elections. The county auditor shall keep separate lists of voters living within the boundaries of the municipality and outside the boundaries for the purpose of municipal and school elections.
Based on the foregoing facts and statutory authority, the city of Spearfish proposes upon successful completion of annexation proceedings to declare the annexed area by ordinance to be a fourth ward of the city. The mayor and council would then appoint two aldermen to fill the council positions for that ward. The mayor and council would then form a committee to determine whether the city should be redistricted and if so, into how many wards and the appropriate boundaries of such wards. The study would of course make its recommendations in accordance with the requirements for contiguous territory within the wards and equal representation. Based upon the study, the city would then proceed by ordinance to redistrict the city in time for the municipal elections of 1983. It is possible that the redistricting committee would determine that three wards were appropriate and more responsive than a four ward construction.
Based on the foregoing facts, you have asked the following question:
QUESTION:
Is this proposed scheme of representation and redistricting permissible under state laws?
In response to your question, let me first of all state that your question has two parts: (1) may the city council create a separate ward in the city of Spearfish consisting of the newly annexed area and (2) may the city council appoint aldermen to represent the newly-created ward until the next city election.
In answer to the first question, it is my opinion that in view of the following statute (SDCL 12-14-1), the city council is authorized to create a new ward:
The board of county commissioners shall by resolution provide for election precincts throughout its county and shall designate polling places within such precincts. The board shall establish new election precincts when required by the provisions of this chapter or § 2-2-12, and may be resolution change the boundaries of election precincts already established. The precincts and polling places shall be the same for all elections except where election by ward or a boundary other than a precinct is required for the purposes of a local election and would be inconsistent therewith. In such event, the governing board may establish its precincts for the purposes of its elections. The county auditor shall keep separate lists of voters living within the boundaries of the municipality and outside the boundaries for the purpose of municipal and school elections. (Emphasis added.)
The answer to the second question, whether the city council can appoint temporary aldermen, is more difficult. In response, I would note the following statutes.
SDCL 9-13-14.1 provides:
When a vacancy exists on a municipal governing body, the remaining members shall appoint a replacement to serve until the next annual municipal election. In the aldermanic form of municipal government, the appointment must be a person from the same ward of the city. There shall not be a special election held to fill a vacancy before the date of the annual municipal election.
SDCL 3-4-1 provides:
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 a breach of his official bond.
SDCL 9-8-4 provides:
The common council shall consist of the mayor elected at large and two aldermen elected from and by the voters of each ward of the municipality, who shall hold office for two years and until their successors are elected and qualified; except that at the first election of aldermen one shall be elected for one year and one for two years.
In view of § 9-13-14.1, it is my opinion that a city council may only appoint an alderman when a vacancy exists. Since the creation of a new ward does not create a vacancy pursuant to § 3-4-1, it is my opinion that the city council may not appoint temporary aldermen. See SDCL 2-14-4 and State ex rel. Kriebs v. Halladay, 219 N.W. 125 (1928).
Further credence is lent to my interpretation by § 9-8-4 which contemplates only 'elected' aldermen along with two year terms.
I would further add that the above interpretation is made while fully aware of SDCL 9-5-9, reading as follows:
Except as otherwise provided in the plan for consolidation, when certified copies of the proceedings are so filed, the annexation shall be effective and complete and the municipality to which the annexation is made shall have the power, and it shall be its duty, to pass such ordinance as will carry into effect such annexation, and thereafter the municipality annexed shall be a part of the municipality to which the annexation is made.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
