April 5, 1979

Mr. Richard P. Green 
Kingsbury County State's Attorney 
Kingsbury County Courthouse 
DeSmet, South Dakota 57231

Official Opinion No. 79-7

Length of Time an Appointee to Fill the Vacancy in the Office of Sheriff Would Hold Office

Dear Mr. Green:

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

FACTS: 

The incumbent Sheriff of Kingsbury County, South Dakota, was elected for a term of office constituting four years to commence in January of 1979.  The Sheriff consequently resigned on December 22, 1978, and a written appointment was made appointing a new Sheriff on the same date.  The successor received such written appointment and qualified in the manner provided by law.  The next general election will be held in November of 1980 and the general election at which a Sheriff would be elected for a full term will be held in November of 1982.

Based upon the above facts you have asked the following questions:

QUESTIONS: 

1.  Does the newly-appointed Sheriff who was appointed before January 1, 1979, hold over into the new term for Sheriff? 

2.  If said newly-appointed Sheriff does hold over into the new term, does he hold such office in November of 1980 or until the general election in November 1982, which would be the conclusion of the term of the previous sheriff had he not resigned?

IN RE QUESTION NO. 1:

SDCL 3-4-1 provides that an office becomes vacant upon the resignation of the official before the expiration of the term of office for such official.  SDCL 3-4-3 provides that when such vacancies occur in county offices, the vacancy is to be filled by appointment by the Board of County Commissioners.  SDCL 3-4-6 provides that this appointment shall be made in writing and shall be made to continue until the next general election at which the vacancy can be filled and until a successor is elected and qualified.

SDCL 3-4-6 was discussed in the case of Noel v. Cunningham, 68 S.D. 606, 5 N.W.2d 402 (1942).  In that decision, the South Dakota Supreme Court said in part: 

State ex rel. Hellier v. Vincent, 20 S.D. 90, 104 N.W. 914 involved the right of a person appointed to the office of sheriff to hold over where the re-elected sheriff died before qualifying for his office.  In the course of the opinion it was said:  “According to the express terms of the statute and the spirit of our decisions, the death of the sheriff on the 7th day of December, immediately following his reelection, created a present vacancy in the office, which could be filled only by a written appointment, not for the unexpired term, but 'to continue until the next general election at which the vacancy can be filled, and until a successor is elected and qualified.’"

Although the Hellier case involved a situation where death rather than resignation was the basis for the vacancy, it is my view that the question of law involved is the same there as in the facts situation you presented here. Accordingly, the answer to your first question is yes, the newly appointed sheriff does hold over into the new term for sheriff beginning in January of 1979.

IN RE QUESTION NO. 2:

In regard to your second question, the following discussion of the South Dakota Supreme Court in the case of Noel v. Cunningham is significant: 

It is the general policy of the law to fill vacancies in elective offices at an election as soon as practicable after the vacancy occurs.  State v. Schroeder, 79 Nebr. 759, 113 N.W. 192.  The statute declares it is a vacancy which is to be filled at the next general election--which clearly means nothing more or less than that someone shall be elected to fill the office during the unexpired term--not that the vacancy must be one existing or continuing until the next general election.  (Citations omitted.)

It is my view that according to this authority, the newly appointed sheriff would hold over into the new term until the next election which would be in November of 1980.  It is my opinion that the newly appointed sheriff could not, under this rationale, argue that his term extends until the next general election in 1982.  The appointed sheriff will need to be elected in 1980 before he will lawfully be in a position to serve until 1982.  In 1982, even if he was elected in 1980, the sheriff will again need to run for office as his election in 1980 was only for the unexpired term, i.e. until 1982.  By virtue of being elected in 1980, the sheriff does not get a full four (4) year term until 1984.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

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