August 9, 1979

Mr. Arthur L. Rusch 
Clay County State's Attorney 
Clay County Courthouse 
Vermillion, South Dakota 57069

Official Opinion No. 79-25

Municipal elections pursuant to SDCL 9-13-26

Dear Mr. Rusch:

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

FACTS: 

In the spring of 1979, at the Municipal Election, there were five candidates for one opening on the Vermillion City Council.  In the original election, X received the largest number of votes and Y received the second largest number of votes.  The votes received by X did not constitute a majority of the votes cast.  Subsequently, the City of Vermillion called a run off election at which X and Y were the only two candidates on the ballot.  At that election, Y received a majority of the votes and was declared elected to the City Council. 

Vermillion employs a City Manager-Alderman form of government pursuant to SDCL 9-10-4.

Based upon the above factual situation, you have asked the following question:

QUESTION: 

Did the City of Vermillion act properly in calling the second election or should X have been declared the winner?

It is my opinion that the City acted properly in calling the secondary election.  SDCL 9-13-26 provides that:

In municipalities of the first and second classes, if any person receives a majority of all the votes cost for the office for which he is a candidate, he shall be declared elected; provided, however, that in municipalities employing a city manager and having a commission form of government, the persons having the highest number of votes cast for offices of commissioner shall be declared elected.

The proviso section of SDCL 9-13-26 allows only one exception to the majority vote rule.  Municipalities (1) employing a city manager and (2) having a commission form of government may elect commissioners on a plurality vote.  See SDCL 9-10-5, SDCL 9‑10‑6.

Because Vermillion is a city of the first class employing a City Manager-Alderman form of government, it does not fit within the proviso and must elect commissioners by a majority vote.  Since neither X nor Y received a majority of the vote, a secondary election was necessary.  SDCL 9-13-26, SDCL 9-13-27.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

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