July 11, 1979
Mr. George H. Danforth
Beadle County State's Attorney
312 Kansas Avenue, S.E.
Huron, South Dakota 57350
Official Opinion No. 79-20
PAYMENT OF ELECTED COUNTY OFFICIALS
Dear Mr. Danforth:
You have requested an official opinion from this office based on the following factual situation:
FACTS:
Former County Auditor was originally appointed to fulfill an unexpired term and took office in the middle of a month and was paid on a pro-rata basis for the number of working days remaining in that month. Subsequently, the County Auditor ran for election in the next general election in 1976 for the remaining unexpired term and served the remaining term. Following the month of appointment, this Auditor was paid the annual salary on a monthly basis through February, 1979. Thereafter, as a result of the 1978 election, a newly elected County Auditor assumed the duties of the office on the first Monday of March, 1979, being March 5, 1979.
The current term of a County Auditor will expire on Monday, March 7, 1983. Other county officials elected in 1976 began their term of office on the first Monday of January, 1977, being January 3. Those terms of office will expire on the first Monday of January, 1981, which is January 5. Only occasionally would the first Monday of a term of office be on the first day of the appropriate month.
Based upon the above factual situation, you have asked the following questions:
QUESTIONS:
1. When a person is elected to fill an unexpired term, when does the person so elected commence to fulfill the remaining unexpired term?
(a) In the specific case of the Auditor elected in 1976 to fulfill the remaining unexpired term, did such remaining term commence on March 7, 1977, being the first Monday of March, 1977? Or,
(b) Did it commence immediately upon election or on some other date?
2. Is the same appointive and subsequently elected official deemed to be receiving compensation under his old term of office for the few days in the month before he assumes the office again for the term in which he is elected?
3. Is an elected official entitled to compensation for the first few days in the month prior to a newly elected officer commencing his term of office?
4. Since the statutes previously indicated set an annual salary for elected officials, what is the correct method for determining pro-rata compensation?
(a) Is it by the number of days in a month?
(b) Is it by the number of working days in a month?
IN RE QUESTION NO. 1:
The answer to your question as to when the term of the former county auditor elected to fill an unexpired term commences can be found in a close reading of the involved statutes. SDCL 7-7-1, which names the first Monday in March after the election as the commencement for the county auditor's term, specifies a regular term of office for county officers elected for a full term. Since the former county auditor was not elected for a full term, SDCL 7-7-1 is not applicable.
Appointments to vacant public offices are dealt with in SDCL 3-4; under SDCL 3-4-6, an appointment is to continue until the next general election as which the vacancy can be filled, and until a successor is elected and qualified. Under this statute, the term of office of the auditor elected to an unexpired term being held by an appointee would commence after election and qualification by the auditor. (See also Official Opinion 72-34, 1973-1974 A.G.R. 54.)
IN RE QUESTION NO. 2:
Your second question involves the salary of an appointed officer who is subsequently elected to the same office. As long as his appointment lasts, such an officer must be deemed to be receiving compensation under the appointment; when he qualifies for the position after the election, he will begin receiving compensation for the remainder of the unexpired term to which he was elected. This result is substantiated by looking to SDCL 3-14-1, which deals with an officer continuing to discharge his duties after the expiration of his term of office until his successor is qualified. While so continuing to discharge his duties, the officer holding over is entitled to continue receiving the prescribed compensation.
IN RE QUESTION NO. 3:
As in the previous question, an elected officer is entitled to receive compensation until the expiration of his term of office, even if such expiration is mid-month. It should be noted, however, that the annual salary of county officers is set by statute; the present county officer should receive compensation only up to the amount authorized by statute but still unpaid at the end of his term. (See 1963-1964 A.G.R. 40.)
IN RE QUESTION NO. 4:
Under SDCL 7-7-15, the salaries of the county auditor, county treasurer, and county register of deeds are to be paid on a monthly basis. According to 74 Am.Jur.2d Time § 9, a month is to be computed by the calendar unless a contrary meaning appears in the statute being construed. Since no such contrary meaning appears in SDCL 7-7-15, it must be presumed that the monthly basis refers to the number of days, not working days, for the calculation of the salaries.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
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