When voters in a South Dakota civil township want to split their township into two new townships, what role does the county commission play, and can the county commission redraw the boundaries of the new townships?

Plain-English summary

Matthews Township is an organized civil township in Kingsbury County, SD. Its Board of Supervisors decided the township should be split into two separate townships and asked the County Commission to start the division process. A legal question arose about what the County Commission actually does in a township division, and specifically whether the Commission has authority to draw or adjust the boundaries of the new townships that would result.

The 2018 AG worked through SDCL chapter 8-1 and read the current statutes (as amended in 1996) as giving the County Commission a limited role. The Commission can propose a division (as one of three triggers under SDCL 8-1-8). The Commission must hold a public hearing on the proposal (SDCL 8-1-9). And the Commission decides the status of any "affected portion" of the township where no resident cast a vote (SDCL 8-1-10). Beyond that, the Commission is essentially in a supervisory and procedural role. The substantive question (whether the division happens) is decided by the voters of the affected township at the next regular township election.

On the boundary question, the 2018 AG read the 1996 legislative changes as removing the Commission's authority to "fix and determine the boundaries" of newly created townships. The pre-1996 version of SDCL 8-1-10 had explicitly given the Commission that power. The 1996 amendment took it out. Lewis & Clark Rural Water System v. Seeba (2006) and Rosander v. Board of County Commissioners (1983) both say that when the Legislature amends a statute, courts (and AGs) must presume the meaning was intended to change. Where the old statute said the Commission fixed the boundaries and the new statute does not, the boundary authority has gone somewhere else.

The AG read SDCL 8-1-10's current language ("the proposal shall be implemented") as implying that the proposal submitted to voters fixes the boundaries. That is the logical reading: voters need to know what the new township boundaries will be before they vote yes or no on the division. A proposal that left boundaries to be drawn later by the Commission would not give voters that information. So the proposal must spell out the new boundary lines, and a yes vote implements those lines as drawn.

That conclusion is consistent with SDCL 8-1-2 (which directs the Commission to "divide the county into as many civil townships as the conveniences of the citizens may require, and shall accurately define the boundaries thereof," but "by advice of the people as provided for in this chapter"). The Commission's general authority to define township boundaries operates only when carried out through the SDCL 8-1-8 to 8-1-10 voter-driven process. After 1996, that process puts the boundary-setting in the proposal stage, not in a post-vote Commission decision.

The closing note: if counties and townships want more specific statutory direction on boundary-setting in the township-division context, they have to ask the Legislature for it. The AG cannot read back in what the 1996 Legislature took out.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL chapter 8-1 has been amended in various places since 2018. The general principle that voters drive township division and that proposals fix boundaries should be checked against current statute. The 1996 reform's core direction (limiting county-commission role in township division) appears to remain in place, but specific procedural details may have shifted.

What the opinion meant at the time

For Kingsbury County in 2018, the opinion clarified that the County Commission could not redraw the proposed Matthews Township division boundaries. The Matthews Township Board's proposal needed to specify the new boundaries; the Commission's role was to hold the hearing, notify voters, and tally the election result. If the proposal's boundaries were unworkable, the Township Board (or a different petitioner) had to submit a revised proposal; the Commission could not unilaterally adjust.

For township boards across SD considering reorganization, division, or merger, the opinion meant the operative work happens at the township level. The board drafts the proposal, draws the new boundaries, and gathers voter support. The Commission's procedural role is real but limited.

For township residents who wanted division but disagreed with proposed boundaries, the opinion told them their leverage was at the township-board level (push for a different proposal) or through their own SDCL 8-1-8 petition (collecting majority signatures of registered voters). The County Commission was not the right pressure point.

For county commissioners statewide, the opinion ended any lingering practice of treating township division as a county-driven exercise. Pre-1996 practice may have included Commission-driven boundary decisions; that practice did not survive the 1996 amendments.

For county state's attorneys advising commissions, the opinion provided a structural framework. SDCL 8-1-2 still gives the Commission general authority to define township boundaries, but only "by advice of the people as provided for in this chapter." The SDCL 8-1-8 to 8-1-10 voter-driven framework is the "as provided for" pathway, and it places the boundary-setting in the proposal stage.

Common questions

Q: How does a township get divided in SD?
A: Under SDCL 8-1-8, one of three triggers must occur: (1) the county commission proposes the division; (2) the township board proposes to the county commission; or (3) a majority of registered voters in the township petition the commission. The commission then holds a public hearing (SDCL 8-1-9). The voters of the affected township decide the question at the next regular township election (SDCL 8-1-10).

Q: Who decides whether the division happens?
A: The voters of the affected township. The county commission proposes, hears, and counts; it does not decide.

Q: Who decides where the new boundaries are?
A: The 2018 AG reads SDCL 8-1-10 as implying that the proposal submitted to voters fixes the boundaries. So whoever drafts the proposal (the petitioning voters, the township board, or the commission if it proposes) sets the boundaries, and a yes vote implements those boundaries.

Q: Can the county commission redraw boundaries after the vote?
A: No. The 1996 amendments took that authority out of SDCL 8-1-10. The commission cannot reset boundaries to something different from the proposal voters approved.

Q: What if no votes are cast in a portion of an affected township?
A: Under SDCL 8-1-10, the commission "shall determine the status of the affected portion for purposes of deciding the results of the election in the affected portion." That is a narrow gap-filler, not a general boundary-setting authority.

Q: What does the county commission do during the process?
A: Optionally proposes the division (SDCL 8-1-8(1)). Holds the required public hearing (SDCL 8-1-9). Ensures voter notification. Counts the election result. Decides the status of any unvoted affected portion (SDCL 8-1-10). Records the post-division boundary description (SDCL 8-1-4). And presumably implements administrative changes (precinct lines, tax assessments, road maintenance jurisdiction) following the implemented proposal.

Q: What was the 1996 change?
A: Before 1996, SDCL 8-1-8 let the county commission divide townships if the commission felt division was in the township's best interest, based on majority-voter petition. SDCL 8-1-10 let the commission "fix and determine the boundaries" of the resulting townships. The 1996 Legislature (1996 SL ch. 58) removed both authorities, replacing them with the current voter-driven framework. The 2018 opinion treats those amendments as deliberate transfers of authority away from county commissions to township voters.

Q: Where does SDCL 8-1-2's general boundary authority fit?
A: SDCL 8-1-2 directs the commission to "accurately define the boundaries" of the county's townships "by advice of the people as provided for in this chapter." The opinion reads "as provided for in this chapter" as cross-referencing the SDCL 8-1-8 to 8-1-10 voter-driven process. The general authority operates through that specific process, not as a freestanding power.

Background and statutory framework

SD organized civil townships are sub-county units of government that exist in much of the state's rural area. Each county is divided into civil townships under SDCL chapter 8-1. Townships have boards of supervisors, hold annual elections, levy taxes within statutory caps, maintain township roads, and exercise other local-government powers. The relationship between townships and counties is statutorily defined: counties have more general authority and serve as the procedural conduit for township-structural changes; townships have local autonomy for their own affairs subject to county supervision on structural matters.

SDCL chapter 8-1 governs the formation, division, merger, and reorganization of townships. The chapter's structure puts the county commission in a procedural and supervisory role, while voters of the affected townships make the substantive decisions. SDCL 8-1-2 directs the commission to "continue to divide the county into as many civil townships as the conveniences of the citizens may require, and shall accurately define the boundaries thereof, and may from time to time make such alterations in the number, names, and boundaries thereof as it may deem proper, by advice of the people as provided for in this chapter." The closing qualifier ("by advice of the people as provided for in this chapter") is the key constraint: the commission's general authority operates only through the specific processes the chapter defines.

The specific division process sits in SDCL 8-1-8, 8-1-9, and 8-1-10. SDCL 8-1-8 sets three triggers (commission proposal, township-board proposal to the commission, or majority-voter petition) and requires that the proposal be "subject to approval by the voters in the affected [township]." SDCL 8-1-9 requires the commission to hold a public hearing with proper notice. SDCL 8-1-10 sends the question to the voters at the next regular township election and provides that if a majority vote in favor, "the proposal shall be implemented."

The 1996 Session Laws ch. 58 was the legislative reset. Before 1996, the chapter gave county commissions much more direct authority. The pre-1996 SDCL 8-1-8 let commissions join or divide townships upon majority-voter petition "if the commission felt the division was in the best interests of the township." The pre-1996 SDCL 8-1-10 let commissions divide townships "in accordance with the wishes of a majority of legal voters" and "fix and determine the boundaries" of the resulting townships. The 1996 amendments took both authorities out, replacing them with the current voter-driven framework that limits the commission to procedural roles.

The 2018 AG opinion takes the 1996 amendments at face value. Lewis & Clark Rural Water System v. Seeba (2006) and Rosander v. Board of County Commissioners (1983) establish the canon that when the Legislature amends a statute, the meaning is presumed to change. The pre-1996 commission authority over township boundaries cannot be read back in. If the Legislature wanted commissions to set boundaries post-vote, it would have left or restored that language.

The AG's implication-based answer to the boundary question fills the gap the 1996 amendments left. SDCL 8-1-10 says "the proposal shall be implemented" but does not separately address boundary-setting. Reading it as the proposal fixing the boundaries is the natural inference: voters need to know what the new map looks like before they can vote yes or no, so the proposal must specify the new boundaries, and implementation of the proposal means implementation of those boundaries. The alternative reading (boundaries set later by someone other than the proposal drafter) would leave the voters without the information they need and would create a procedural gap the chapter does not address.

SDCL 8-1-4's recording requirement is consistent with this reading. It requires the commission's records to contain a description of the boundaries of a new township or any alteration to existing boundaries. That recording function presupposes that the boundaries have been set somewhere; SDCL 8-1-10 implies the proposal as the place where they are set.

The opinion's tone is the typical post-1996 AG approach: take the legislative reform at face value, give effect to the limited commission role, and tell counties and townships that if they want more specific direction (timetables, boundary-drafting standards, dispute-resolution procedures) they need to ask the Legislature. The AG cannot fill in policy gaps that the chapter leaves open.

Citations and references

Statutes:
- SDCL ch. 8-1 (civil townships)
- SDCL 8-1-2 (county commission general authority)
- SDCL 8-1-4 (boundary recording)
- SDCL 8-1-8 (division triggers)
- SDCL 8-1-9 (public hearing)
- SDCL 8-1-10 (voter decision, boundary implementation)
- 1996 Session Laws ch. 58 (1996 reform)

Cases:
- Tibbs v. Moody County Board of Commissioners, 2014 S.D. 44, 851 N.W.2d 208
- State v. Quinn, 2001 S.D. 25, 623 N.W.2d 36
- In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, 907 N.W.2d 785
- In re Estate of Ricard, 2014 S.D. 54, 851 N.W.2d 753
- In re Taliaferro, 2014 S.D. 82, 856 N.W.2d 805
- Lewis & Clark Rural Water System v. Seeba, 2006 S.D. 7, 709 N.W.2d 824
- Rosander v. Board of County Commissioners of Butte County, 336 N.W.2d 160 (S.D. 1983)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1696

Original opinion text

Official Opinion No. 18-03

Re: County Commission's Role in the Division of a Township

Dear Mr. Gass,

In your capacity as State's Attorney for Kingsbury County, you have requested an official opinion from the Attorney General's Office based on the following questions:

QUESTIONS:

1. What statutory role does a county commission have regarding the division of an organized township?

2. Does SDCL 8-1-2 allow a county to adjust the boundaries of the newly created townships arising from the division of a previous township?

ANSWERS:

1. A review of the statutory scheme in SDCL ch. 8-1 reveals that a county commission has a limited role in the division of an organized township.

2. No, SDCL 8-1-10 implies that the proposal to divide a township is what fixes and determines the boundaries of any township existing post division.

FACTS:

Matthews Township is an organized civil township located within Kingsbury County, South Dakota. The Board of Supervisors for Matthews Township has requested that the township be split into two separate townships. A question has arisen as to what statutory role the Kingsbury County Commission is to play in the division of the township. Further, you have specifically asked whether the County Commission has the statutory authority to determine or adjust the boundaries of the newly created townships.

IN RE QUESTION 1:

You have asked what statutory role a county commission has in the division of an organized civil township.

"A county is a creature of statute and has 'only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted.'" Tibbs v. Moody County Board of Commissioners, 2014 S.D. 44, ¶ 25, 851 N.W.2d 208, 217, (quoting State v. Quinn, 2001 S.D. 25, ¶ 10, 623 N.W.2d 36, 38) (internal citations omitted).

SDCL 8-1-2 states that:

[t]he board of county commissioners shall continue to divide the county into as many civil townships as the conveniences of the citizens may require, and shall accurately define the boundaries thereof, and may from time to time make such alterations in the number, names, and boundaries thereof as it may deem proper, by advice of the people as provided for in this chapter.

SDCL 8-1-8 establishes that a civil township may be "reorganized, divided, or merged with another township…, subject to approval by the voters in the affected [township]…," only if one of the following conditions is met: the county commission proposes that the township be divided, reorganized or merged; the township board proposes to the county commission that the township be divided, etc.; or a majority of the registered voters in the township petition the county commission for division of the township, or reorganization, or merger. If one of the conditions of SDCL 8-1-8 is met, the county commission is required to hold a public hearing on the proposal, and the commission is required to timely publish notice of this hearing. SDCL 8-1-9. After the required public hearing is held, the proposal is determined by the voters of the affected township "at the next regular township election." SDCL 8-1-10. If no votes are cast by a resident of an affected portion of a township, then the county commission "shall determine the status of the affected portion for purposes of deciding the results of the election in the affected portion." Id.

When interpreting statutes, the state Supreme Court has explained:

[W]e begin with the plain language and structure of the statute. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. When we must, however, resort to statutory construction, the intent of the legislature is derived from the plain, ordinary and popular meaning of the statutory language.

In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, ¶ 12, 907 N.W.2d 785, 789 (citations omitted). The purpose of statutory construction is to discover a statute's true intent primarily through an analysis of its language. In re Estate of Ricard, 2014 S.D. 54, ¶ 8, 851 N.W.2d 753, 755-56. The intent of a statute "must be determined from the statute as a whole, as well as enactments relating to the same subject." In re Taliaferro, 2014 S.D. 82, ¶ 6, 856 N.W.2d 805, 806-07.

In reading SDCL 8-1-2 together with the provisions of SDCL 8-1-8 through 8-1-10, I conclude that a county commission does have a limited role in the division of an organized township.

SDCL 8-1-2 directs a county commission to "divide the county into as many civil townships as the conveniences of the citizens may require." This directive, however, is qualified by the requirement that the county commission must follow "the advice of the people as provided for in [SDCL ch. 8-1]." Under SDCL ch. 8-1, the county commission holds at best a supervisory role in the division of a township. Other than potentially proposing the division of a township (SDCL 8-1-8), a county commission's role is limited to holding a public hearing on the division question (SDCL 8-1-9), and to determining the division question only for those portions of an affected township where no resident votes (SDCL 8-1-10). The statutes in SDCL ch. 8-1 clearly require the division of a township to ultimately be determined by an election of a majority of the voters of the affected township. SDCL 8-1-8 & 8-1-10.

The legislative history of SDCL ch. 8-1 supports the conclusion reached above. In 1996, the Legislature enacted the current version of SDCL 8-1-8. 1996 SL ch. 58, § 3. Prior to that amendment the terms of the statute gave a county commission the authority to join or divide townships upon petition by a majority of the voters within the township if the commission felt the division was in the "best interests of the township…." Id. In amending the statute, the Legislature left the county commission only with the authority to propose the division of a township. SDCL 8-1-8. SDCL 8-1-10 was also amended by the Legislature in 1996. 1996 SL ch. 58, § 5. The prior version of SDCL 8-1-10 gave a county commission the authority to divide a township if it was "in accordance with the wishes of a majority of legal voters" and the commission felt that the "interests of such township would be served thereby." Id. Currently, the statute rests the decision on the division of a township entirely in the hands of the affected voters (unless no vote is cast in an affected portion of a township). SDCL 8-1-10.

When the Legislature amends a statute, it is presumed that the meaning of the statute must change to comport with the new terms. Lewis & Clark Rural Water System, Inc. v. Seeba, 2006 S.D. 7, ¶ 17, 709 N.W.2d 824, 831; Rosander v. Board of County Commissioners of Butte County, 336 N.W.2d 160, 161 (S.D. 1983). Here, the amendments to SDCL 8-1-8 and 8-1-10 clearly reflect the Legislature's intent to limit the role of a county commission in the division of a civil township.

Based on a review of the relevant statutes in SDCL ch. 8-1, a county commission's role in a proposed township division is generally to hold a hearing and to ensure the voters of the affected civil townships are notified. A county commission may propose a division, but the voters make the ultimate decision on the matter.

IN RE QUESTION 2:

You have also asked whether SDCL 8-1-2 gives the Kingsbury County Commission the authority to determine or adjust the boundaries of the newly created townships should the division of Mathews township be approved.

The rules of statutory construction require me to give effect to the "clear, certain, and unambiguous" intent of a statute through an analysis of the "plain, ordinary and popular" meaning of a statute's language. Wintersteen Revocable Trust, 2018 S.D. 12, ¶ 12. The rules of construction also require me to determine a statute's intent after a review of statutes related to the same subject. Taliaferro, 2014 S.D. 82, ¶ 6

The language of SDCL 8-1-2 conditions a county commission's authority to define township boundaries on the "advice of the people as provided for in [SDCL ch. 8-1]". SDCL 8-1-4 requires that a description of the boundaries of a new township, or any alteration to the boundaries of an existing township, must be recorded "in the records of the board of county commissioners." No other state constitution or statutory provision specifies the procedure for defining a township's boundaries.

The prior version of SDCL 8-1-10 allowed a county commission to "fix and determine the boundaries of a civil township" resulting from the division of a township. 1996 SL ch. 58, § 5. As mentioned above, the Legislature amended this statute in 1996. Id. In amending the statute, the Legislature removed the language that empowered a county commission to determine the boundaries of a township. Id. By operation of the amendment to SDCL 8-1-10, I must presume the Legislature intended to remove a county commission's authority to define the boundaries of a divided township. Lewis & Clark Rural Water System, 2006 S.D. 7, ¶ 1.

SDCL 8-1-10 currently requires that if a majority of votes cast "are in favor of the proposed reorganization, division, or merger, the proposal shall be implemented …" (emphasis added). I believe SDCL 8-1-10 implies that the proposal submitted to the voters is what fixes and determines the boundaries of a divided township. If the proposal is approved, the boundaries as indicated in the proposal are implemented and recorded in the records of the county commission as required by SDCL 8-1-4.

The above conclusion seems to be the most logical interpretation of the relevant statutes. By requiring the proposal to fix and determine the boundaries of any divided township, the affected voters are provided all necessary information to make an informed choice on the division question. Certainly, where the boundary lines of the newly created townships are to be fixed may influence how an individual voter might feel about the proposed township division. Requiring the proposal to determine where the boundary lines are to be fixed post-election allows a fully informed electorate to give their advice on the proposal as required by SDCL 8-1-2.

I conclude that SDCL 8-1-10 requires by implication that the proposal to divide a township must determine where the boundary lines are to be fixed after any township division. This conclusion harmonizes the language in SDCL 8-1-2 directing a county commission to accurately define the boundaries of a civil township with the qualification that any such action must be carried out by the "advice of the people as provided for in [SDCL ch. 8-1]," and it accounts for the legislative history of SDCL 8-1-10. If counties and townships desire more specific statutory direction on this question they must ask the Legislature for those specifics.

CONCLUSION

It is my opinion that a county commission plays a limited role in the division of a township. A county commission may propose such a division, but beyond that its role is generally to hold a hearing on the proposal and to ensure the voters of the affected civil townships are notified. Further, SDCL 8-1-2 does not authorize a county commission to fix and determine the boundaries of a township formed by a township division. SDCL 8-1-10 requires by implication that the proposal to divide a township must fix the boundaries of any township that will exist subsequent to the division.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL

MJJ/SRB/lde