January 5, 1977

Mrs. Ruth Humphries 
Brown County Auditor 
Brown County Courthouse 
Aberdeen, South Dakota 57401

Official Opinion No. 77-3

Supervisors and Conservation District

Dear Mrs. Humphries:

You have asked for an official opinion based upon the following facts:

FACTS: 

SDCL 38-8-39 relates: 

Three supervisors shall be rural landowners or occupiers; one shall be a resident of an urban area and one shall be a taxpayer of real property. 

Mr. X and Mr. Y both filed nominating petitions in my office before the deadline of July 1, 1976, for the position as a candidate for the office of Conservation Supervisor representing the Urban Area Conservation District. 

Our District Conservationist of the U.S. Soil Conservation Service informed our office that this would be the only contest to be voted on in the General Election to be held on November 2, 1976, as there was no opposition for any other positions in the Conservation District. 

Mr. X was the incumbent and won the election.  On February 11, 1976, Mr. X filed in our office an address change registration card.  Mr. X now lives in Precinct #14, outside of the city limits of Aberdeen.  Mr. X does live within the three mile radius of the Aberdeen city limits which is governed jointly by the county and city for zoning purposes and is in a plotted, developed community, and within the boundaries of an incorporated sanitary district, but not within the boundaries of an incorporated city or town. 

Mr. Y lives within the boundaries of an incorporated city.

Based upon the above factual situation, you have asked several questions: 

1.  What is the definition of a resident of an urban area?

Chapter 38-8 of the 1976 South Dakota Codified Laws (amended) does not contain a definition for the term “urban area.”  The word “urban” has a plain meaning and a common use that is well understood, however.  “Urban” means “of or belonging to a city or town.”  Shields v. City of Kearney, 179 Neb. 49, 136 N.W.2d 174; City of South Pasadena v. City of San Gabriel, 134 Cal. App. 403, 25 P.2d 516.

Therefore, a resident of an urban area is a person who resides in an area of or belonging to a city or town. 

2.  Even though Mr. X won the election, does he qualify for the position of Supervisor representing the Urban Area Conservation District?

From the facts as you have described them and the definition of an urban area resident as discussed above, it is my opinion that Mr. X no longer qualifies as the urban area supervisor of the conservation district. 

3.  If Mr. X does not qualify for the position, would Mr. Y become the Supervisor representing the Urban Area Conservation District?

As previously pointed out, Mr. X is no longer qualified and therefore cannot serve as a supervisor.  Also, Mr. X was the incumbent and as per SDCL 3-4-1, his failure to qualify as provided by law creates a vacancy. 

4.  If neither Mr. X nor Mr. Y are qualified for the position of Supervisor representing the Urban Area Conservation District, what steps must be taken to fill this vacancy?

First, I must point out that I am of the opinion that Mr. Y has not been disqualified, only Mr. X has failed to qualify as a resident of an urban area.  From the factual situation you have described, Mr. Y does meet that qualification.

Secondly, because Mr. X, the incumbent, has failed to qualify as provided by law, there is a vacancy created because a vacancy is created when the incumbent fails to qualify, see SDCL 3-4-1.

Therefore, SDCL 38-8-44 provides the method for filling vacancies on the Board.  The Board makes the appointment, and the appointee serves until the next general election, at which time a person must file petitions and be elected for the remaining two years of the four-year term.

Recapitulating, Mr. X does not qualify as the urban area resident, thus creating a vacancy on the Board, which the Board fills pursuant to SDCL 38-8-44.

Respectfully submitted,

William J. Janklow
Attorney General

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