When South Dakota voters were going to vote on whether to incorporate a new sanitary district in the 1960s, who could vote, how was the voter list built, and could ballots be cast absentee?
Plain-English summary
A South Dakota county was preparing to hold an election on whether a proposed sanitary district should be incorporated under SDC 1960 Supp. Chapter 45.38, as amended by Chapter 144 of the 1964 Session Laws. Three practical questions came up:
- Who could vote? Landowners with property inside the proposed boundaries, or only people who lived inside the boundaries?
- What was the official voter list?
- Could a qualified voter cast a ballot by mail or absentee?
The AG answered each in turn.
On Question 1, the AG read SDC 1960 Supp. 45.3803 and 45.3806 together. Both statutes spoke of qualified voters or qualified electors "resident in" or "residing within" the proposed district. The statutes did not extend voting rights to nonresident landowners merely because they owned property inside the proposed boundary. So only residents who were also qualified electors under Article VII, § 1 of the South Dakota Constitution could vote.
On Question 2, the AG concluded the basic registration list was the census taken by the petitioners under SDC 1960 Supp. 45.3803 and filed with the county auditor. The single registration law in Chapter 92 of the Session Laws of 1961 by its terms applied only to "municipal, primary, general, or independent school district elections" and did not reach a sanitary-district incorporation vote. The census, supported by an affidavit of accuracy and accepted by the county commissioners, served the same function for that election. The AG flagged a refinement: anyone whose name appeared on the census but who was not actually a qualified elector under the Constitution could not vote, and anyone who was a qualified elector but had been left off the census could still vote.
On Question 3, the AG concluded that there was no absentee voting at the sanitary-district incorporation election. The AG's office had a long line of opinions going back to 1924 holding that absentee voting required prior registration. Without a registration requirement (the census not being a registration mechanism in the absentee-voting sense), the absentee statutes did not apply. The general absentee statute (SDC 16.0606 through 16.0609) applied to registered electors. The Soldiers Absent Voting Statute (SDC 1960 Supp. 16.0610 through 16.0614, originating in Chapter 2 of the Special Session of 1944) applied only to general or primary elections. Neither reached this election.
The AG also addressed an aside: the statutes were silent on who appointed the judges of election. The AG concluded that since some person had to keep order, prevent unauthorized voting, and count ballots, the county commissioners (who gave notice of the election) could properly appoint judges by necessity.
Currency note
This opinion was issued in 1966 (approximate, based on session-law references). 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. South Dakota's modern special-district provisions are in SDCL Chapter 34A-5 (sanitary districts) and SDCL Title 12 (elections), with significantly different procedures. Modern absentee voting is broadly available and is not gated on prior registration as it was at the time of this opinion.
What the opinion meant at the time
The opinion shaped how local officials ran sanitary-district incorporation elections during a period when the state was actively encouraging the formation of these districts to fund sewer and water infrastructure outside municipal limits. The decision to limit voting to residents (rather than landowners) had political consequences: a wealthy non-resident with significant property inside the boundary, who might bear a sizable share of any future assessments, had no vote on whether the district came into being. Resident voters with little property could be the only people deciding whether the assessment regime would apply.
The denial of absentee voting was also consequential. A resident of the proposed district who was traveling on election day, in the military, or institutionalized could not vote. The AG's reasoning was technical (no registration requirement, so no absentee-statute trigger), but the practical result narrowed participation in district-formation elections to people physically present.
The judge-of-election ruling was a pragmatic workaround for a statutory silence. The legislature in 1964 had not specified who appointed judges for these special elections; the AG read the county commissioners' role in giving notice as carrying an implicit authority to appoint the personnel required to run the vote.
Common questions
Q: Is this opinion still good law?
A: Not directly. Sanitary districts are now organized under SDCL Chapter 34A-5, which has different formation and election procedures. South Dakota election law has been significantly modernized, and the registration framework has changed. Anyone facing a current sanitary-district formation question should consult current SDCL Chapter 34A-5 and SDCL Title 12.
Q: Why couldn't a landowner who owned the most expensive parcel vote?
A: The statutory text talked about "qualified voters" and "qualified electors" of the proposed district, terms that meant residence under the South Dakota Constitution. Voting rights and property rights have run on different tracks in South Dakota since statehood; ownership did not by itself confer a vote. If the AG had extended voting rights to nonresident landowners, that would have required a statutory hook the legislature had not provided.
Q: What if a person was on the census but had moved out by election day?
A: The AG's reasoning suggests the operative question was whether the person was a qualified elector under the constitution on election day, not whether the person's name appeared on the census. A person on the census who had moved out and was no longer a resident would not be a qualified elector and could not vote. The census served as the practical voter list, but it was not legally controlling.
Q: What if a person who lived in the proposed district was not on the census?
A: That person could still vote if otherwise a qualified elector. The census was not exclusive; constitutional qualifications controlled.
Q: Could the county commissioners refuse to authorize the election if the census was flawed?
A: The statute conditioned the election on the commissioners being satisfied that the chapter's requirements had been "fully complied with." A material flaw in the census could be a basis for the commissioners to decline to order the election. In practice this was a procedural check.
Q: What about modern absentee voting in special-district elections?
A: Modern South Dakota election law generally allows absentee voting in a wide range of elections, including special-district elections, although the specific rules vary by district type. The 1966 result (no absentee voting at sanitary-district formation elections) does not reflect current practice.
Background and statutory framework
In the 1960s, South Dakota was expanding the legal infrastructure for sewer and water service outside municipal limits. Chapter 144 of the 1964 Session Laws and Chapter 146 of the 1966 Session Laws extended and refined the sanitary-district statutes in Chapter 45.38 of the 1960 Supplement to the South Dakota Code. The formation process was deliberately structured:
- Petitioners caused an accurate survey and map to be made and a census of residents to be taken under SDC 1960 Supp. 45.3802 and 45.3803.
- They filed an application for incorporation with the county auditor under SDC 1960 Supp. 45.3805.
- The county commissioners reviewed the materials and, if satisfied the statutory requirements had been met, ordered an election under SDC 1960 Supp. 45.3806.
- Qualified electors resident in the proposed district voted whether to incorporate.
The opinion's reading of "resident qualified elector" came from the consistent statutory language in both the census and the election-order provisions. The treatment of the census as the "registration list" came from necessity (no other registration was generated for the election) plus the limitation in the single registration law (Ch. 92, S.L. 1961) to municipal, primary, general, and independent school district elections. Sanitary-district formation was not on that list. The absentee-voting ruling rested on a chain of prior AG opinions reading the absentee statutes as registration-dependent.
Citations and references
Statutes (as cited in the opinion):
- SDC 1960 Supp. 45.3802 (survey and map)
- SDC 1960 Supp. 45.3803, as amended by Sec. 1, Ch. 144, S.L. 1964 (census)
- SDC 1960 Supp. 45.3805 (application for incorporation)
- SDC 1960 Supp. 45.3806, as amended by Sec. 4, Ch. 144, S.L. 1964 (election order)
- SDC 1960 Supp. 45.3817 (incorporated sanitary district status)
- SDC 16.0606 through 16.0609 (general absentee voting)
- SDC 1960 Supp. 16.0610 through 16.0614 (Soldiers Absent Voting Statute; originating in Ch. 2, Special Session of 1944)
- Chapter 92, Session Laws of 1961 (single registration law)
- South Dakota Constitution, Article VII, § 1 (qualifications of voters)
Cases: None cited.
Prior AG opinions referenced:
- 1924 AGR 161
- 1933-34 AGR 310
- 1935-36 AGR 206
- 1937-38 AGR 258
- 1939-40 AGR 601
- 1945-46 AGR 61
Source
Original opinion text
Elections. Elections in incorporated sanitary districts provided by SDC 1960 Supp. 45.38 Eligible voters; absentee voting; registration list for such election.
You have requested an official opinion to answer certain questions you have propounded in regard to the election soon to be held in your county in regard to the incorporation of a sanitary district in pursuance to SDC 1960 Supp. 45.38, and acts amendatory thereto.
The questions you have propounded are as follows:
"1. Who can vote at such election? (That is, can all landowners in the proposed territorial limits of such sanitary districts vote on the question of whether such should be formed, or is the voting limited to qualified electors residing within the boundaries of the proposed incorporated sanitary district?)
"2. What constitutes the 'registration list' for such election?
"3. Can a person vote by an absentee ballot at such election?"
It is so elementary, that citation of authority seems superfluous, that when statutory provisions authorize and permit the creation of an inferior subdivision of the state, such as an incorporated sanitary district, (see SDC 1960 Supp. 45.3817), that the statutory provisions must be substantially complied with in order to effectively and legally create such inferior subdivision of the state.
In considering questions 1 and 2 propounded, two sections of the statutory enactment seem involved. These are SDC 1960 Supp. 45.3803, as amended by Section 1 of Chapter 144, of the Session Laws of 1964, and SDC 1960 Supp. 45.3806, as amended by Section 4 of Chapter 144 of the Session Laws of 1964. These sections read as follows:
"SDC 1960 Supp. 45.3803 Census of resident population; time of taking verification; minimum requirements. Such persons shall cause an accurate census to be taken of the resident population of the territory included in said map, as of a day not more than thirty days previous to the time of filing such application with the county auditor as hereinafter provided. Such census shall exhibit the name of every head of a family residing within such territory on such day and the number and names of persons belonging to every such family and shall also state the names of all other persons residing within such territory at such time and, as to each person named, whether such person is a qualified voter. It shall be verified by the affidavit of the person or persons taking the same, stating that, to the best information and belief of the affiant or affiants, the census correctly shows the names and numbers of all residents and of all qualified voters within the territory. Persons taking the census may at the same time obtain signatures on the application for incorporation required by Section 45.3805. No sanitary district shall be incorporated which contains less than one hundred legal residents, including minors, or less than thirty qualified electors as shown by the census."
"45.3806 County board orders notice of election. If the board shall be satisfied that the requirements of this chapter have been fully complied with, it shall make an order declaring that such territory shall, with the assent of the qualified voters thereof as hereinafter provided, be an incorporated sanitary district by the name specified in the application. Such name shall be different from that of any other sanitary district in this state. It shall also include in such order a notice for an election of the qualified electors resident in the proposed sanitary district, at a convenient place or places therein, on some day within one month therefrom, to determine whether such territory shall become an incorporated sanitary district. The county board is also authorized to expend funds of the county, in the manner and to the extent permitted by law for other county expenditures, in the payment of necessary costs of preparation of petitions, surveys, maps, and applications submitted under the provisions of this chapter, and of the holding of elections on the incorporation of sanitary districts hereunder. The county board is also authorized to accept and expend any funds appropriated to the state department of health and allocated by that department to the county for these purposes."
After considering these provisions, it is my opinion that the answer to Question No. 1 must be that the statute provides that the eligible and qualified voters at such election, held for the purpose of determining whether or not such territory should be incorporated as an incorporated sanitary district, is limited to the resident electors within the area proposed to be within the incorporated district, and does not contemplate or permit nonresidents of such territory, even though landowners within such territory, to vote at such election.
In considering Question No. 2, it is my opinion that as the census taken of the proposed district requires the affidavit of the census taker, that such census correctly shows the names and numbers of all residents within such territory, as well as all qualified voters therein, and that such census must be considered accurate by the county commissioners, (for the reason that the board of county commissioners must be satisfied that all requirements of this chapter have been fully complied with before it authorizes and directs that the election be held,) that such is the basic registration list to be used in such election.
Some question may be raised as to whether or not under the single registration law (Chapter 92 of the Session Laws of 1961) could be resorted to for such registration list. It will be noticed that such applies to registration for "municipal, primary, general, or independent school district elections." (Section 1 of the Act). This statute does not, by its own limitations, apply to the election in question.
My answer to Question No. 2 is that the census taken and filed with the county commissioners, in pursuance to SDC 1960 Supp. 45.3803 as amended by Section 1 of Chapter 144, of the Session Laws of 1964, is the basic registration list for such election. However, as previously stated, all qualified voters residing within the territorial limits of the proposed district are qualified to vote at such election. The qualifications of voters in this state is provided by Section 1 of Article VII of the South Dakota Constitution. Any person residing within the territorial limits of the proposed sanitary district who possesses the qualifications as prescribed by the Constitution is eligible to vote at such election, whether he be included on such "census list" or not. Likewise, any person who may be determined on such census list as being a qualified voter in the territory of such proposed sanitary district who does not possess the qualifications as prescribed by the Constitution is ineligible to vote at such election, and the inclusion of his name on such census list does not create eligibility as a voter.
In answer to Question No. 3, it should be pointed out that since the opinion of my predecessor reported in 1924 AGR 161, this office has consistently held that the right to vote in an election by absentee ballot, or by mail, he must have complied with the statutes requiring registration as a voter, and in any election which does not require registration as a condition precedent, the law relating to absentee voting cannot apply. The Attorney General opinions which have followed this basic decision are as follows:
1933-34 AGR 310; 1935-36 AGR 206; 1937-38 AGR 258; 1939-40 AGR 601 and 1945-46 AGR 61.
In the last cited decision, 1945-46 AGR 61, my predecessor pointed out that the Soldiers Absent Voting Statute, Chapter 2 of the Special Session of 1944, now SDC 1960 Supp. 16.0610-16.0614, applies only to general or primary elections. It does not apply to an election such as herein questioned. Likewise, in the same opinion it was pointed out that the general absentee voters election law, as provided in SDC 16.0606-16.0609 applies to registered electors, and cannot apply to an election such as the one herein questioned, for the reason that basically there is no registration for the election to approve a proposed incorporated sanitary district. Such registration is furnished, basically, by the census required as a condition precedent to such election.
My answer to Question No. 3, is "No". There can be no absentee voting at such election.
You have advised me that you have instructed the county commissioners to appoint the judges of election for the election in question, and have asked my opinion as to the propriety of such directions. A reading of the statutes and the amendments will reveal that the statutes are silent as to the appointment of judges of election. It seems fundamental that there must be some persons designated to keep order at the election, prevent unauthorized persons to vote at such election, and at its conclusion, count the ballots and report the results to the proper officials. It is my opinion that in view of the fact the Legislature has seen fit not to provide for judges of election your instructions are proper. The commissioners give notice of such election; necessity requires they appoint the judges thereof. It would seem that without some designation of judges of such election, there might be some question as to the effectiveness of the same.