If a teenager has gone by his stepfather's surname his whole life, even though no court ever changed his name and his stepfather never adopted him, should South Dakota issue his driver's license in his birth-certificate name or his everyday name?
Plain-English summary
A teenage applicant for a South Dakota driver's license walked in, said his name was John Jones, and presented his birth certificate (per the 1966 photo-and-birth-certificate amendment to SDC 44.03B05). The certificate said John Smith. Investigation showed why: his mother divorced his birth father when the applicant was small, married a man named Jones, and the boy had been called John Jones in the family and the community ever since. No adoption. No court order changing his name. The DMV officer asked the AG which name to use.
The AG took the long way around but landed firmly on Jones. The reasoning rested on the common-law doctrine that a person may use any name they choose so long as the use is not fraudulent and does not harm the rights of others. The opinion catalogued the historical foundations (medieval English surname practice was looser than people assume, Napoleon and Voltaire and Dante and Stanley were all "assumed" names), and then walked through a thick mid-century body of case law from multiple states (New York, New Jersey, Massachusetts, Pennsylvania, Mississippi, Illinois, California, and North Dakota) all confirming that the common-law right to use an assumed name survives despite statutes providing judicial change-of-name procedures.
The closest precedent was Bridges v. Hart, where a Massachusetts court upheld a vehicle registration in the name "Thomas Douey" even though the registrant's birth name was "Theophillus Doucette." The Massachusetts court held that the point of registration was identification, and a person commonly known in his community by his assumed name was best identified by that name. The 1968 AG applied the same logic to South Dakota's 1966 driver's-license amendments. The amendments required birth certificates and photographs because the state wanted to confirm age and identity. They did not say or imply that the license had to be issued in the birth-certificate name. If John Jones was identified more reliably in his community as John Jones than as John Smith, the license served its purpose better in the Jones form.
There was a fraud-prevention safety valve. SDC 1960 Supp. 44.9949 made false statements to motor-vehicle authorities a criminal matter, and the State v. Librizzi case from New Jersey showed how that worked: if a person used an assumed name to conceal a prior license suspension, that was fraud, and the license could properly be revoked. So the right to use an assumed name was not unlimited; it could not be used to lie on the application.
The AG also urged the applicant, if he later applied under his birth-certificate name, to disclose that he had previously held a license in the assumed name. That disclosure obligation flowed from the same fraud-prevention principle.
Currency note
This opinion was issued in 1968. 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 driver's-license law has been substantially revised since 1968 (including REAL ID compliance, modern identity verification requirements, and the Department of Public Safety's documentary requirements for proof of legal presence and identity). Federal REAL ID rules and current SDCL Title 32 provisions impose far more stringent identity-document matching than the 1968 statute. Anyone trying to obtain or correct a modern SD license under a name different from a birth certificate should consult the current Department of Public Safety guidance and likely needs a formal name-change order, a marriage certificate, an adoption decree, or another official linking document.
What the opinion meant at the time
For DMV examiners faced with a name mismatch between the application and the birth certificate, the opinion gave specific permission to issue the license in the applicant's commonly-known name, provided the assumed-name use was not fraudulent and the applicant could be located at the address given. The birth certificate's role was to verify age and identity, not to dictate the name on the license.
For young people who had always gone by a stepparent's surname without a formal adoption or name-change order, the opinion confirmed that they did not need to retreat to their birth name on official documents. The community-knowledge test was the operative one: if friends, school, neighbors, and address records all matched the assumed name, the assumed name was the identifying name.
For law enforcement officers using the license to identify a driver, the opinion supported their practical interest: a license in the name everyone in town used was a more reliable identifier than one in a name that only the immediate family recognized.
For the DMV administrative officer who suggested the safer practice was to insist on the birth-certificate name, the opinion was a polite but clear no. The AG pointed out that the suggestion would actually defeat the identification purpose, because an inquiry by birth-name in the community might turn up nobody.
The opinion did sound a clear caution. Using an assumed name to evade prior consequences (the State v. Librizzi example, where the assumed name covered a suspended license) was a misuse, was criminal under SDC 44.9949, and would result in revocation. Honest assumed-name use, including the applicant's disclosure of the assumed-name license if he later applied under a different name, stayed within the safe zone.
Common questions
Q: Did the applicant need to file a court name-change petition before getting the license in Jones?
A: No. SDC 1960 Supp. 37.10 provided a judicial change-of-name procedure, but the opinion read the statute as adding a procedure, not eliminating the common-law right. Both paths to using a different name remained valid.
Q: What if the applicant later wanted a license in his birth-certificate name (Smith)?
A: He could apply, but the AG said he should disclose that he had previously held a license in the assumed name Jones. That disclosure ensured the DMV could connect the two records and avoided any appearance of using a name change to hide prior driving history.
Q: Did the AG suggest the assumed-name rule applies to women who change their surname on marriage?
A: The opinion noted in passing that for females, "upon marriage her legal surname is that of her husband" (citing Bacon v. Boston Elevator Co.). That reflects 1968 doctrine. Modern law treats name choice on marriage as elective for both spouses; the underlying common-law right to use any non-fraudulent name applies equally regardless of marital status.
Q: Could a person use one name on the driver's license and another on a vehicle registration?
A: The opinion's logic, drawn from the Massachusetts Bridges v. Hart case, would have supported using the same assumed name on both documents so long as the registrant was commonly known by that name. Using two different names on the two documents would have undermined the identification purpose and could have started to look like deception.
Q: What about checks, contracts, and other commercial transactions?
A: The opinion did not directly address commercial transactions, but the Stainsby v. Schallenkamp SD Supreme Court case it cited treated a deed using an assumed name as valid where the parties knew who was meant. The same common-law principle applies broadly: a person can transact under an assumed name so long as identity and lack of fraud are clear.
Q: Could a driver use the assumed name to lie about a prior suspension or revocation?
A: No. State v. Librizzi squarely rejected that use. The right to use an assumed name does not include the right to lie about driving history on a license application. That was criminal under SDC 44.9949 and grounds for revocation.
Q: Did the opinion apply equally to a minor's right to use an assumed name?
A: Yes. The opinion specifically cited Brugier v. Brugier from New Jersey, where a court refused to force a minor daughter to abandon her stepfather's surname even at her birth father's request. Minority did not strip away the common-law right.
Q: Did the 1966 photo-and-birth-certificate amendment to SDC 44.03B05 change this analysis?
A: No. The 1966 amendment required documentary proof of age (the birth certificate) and a facial photo. Both served identification. Nothing in the amendment dictated which name had to appear on the license, and the AG read the requirement as fully compatible with issuing the license in the applicant's commonly-known assumed name.
Background and statutory framework
The 1968 South Dakota driver's-license law (SDC 1960 Supp. 44.03B05, as amended by Chapter 136 of the 1966 Session Laws) required applicants under 21 to present a birth certificate and a front-facial photograph. The 1966 amendments tightened verification of age and identity but said nothing express about which name the license had to bear.
Two doctrinal threads ran through the opinion. The first was the common-law right to use any name so long as the use was not fraudulent. The opinion catalogued a long mid-century cluster of state-court decisions from New York, New Jersey, Massachusetts, Pennsylvania, Mississippi, Illinois, California, and elsewhere, all affirming that judicial name-change statutes added a procedure but did not displace the common-law right. The opinion treated the doctrine as so settled it spent more time on historical color (medieval Welsh naming patterns, the surname history of the Duke of Wellington, the name change of President Ulysses S. Grant) than on argument.
The second thread was the purpose of registration. Both vehicle registration and driver licensing existed to identify the person and the vehicle. The Massachusetts Bridges v. Hart decision drew the bright line: if a person was commonly and generally known in his community by an assumed name and could be readily found at the registered address, registration in the assumed name satisfied the statute even though the birth name was technically the "true" name.
The fraud-prevention countercurrent ran through SDC 44.9949 (false statements to motor-vehicle authorities) and the State v. Librizzi New Jersey case. The right to use an assumed name was not a license to lie. An applicant who used an assumed name to conceal a prior suspension, a different residence, or other material facts forfeited the protection and exposed the license to revocation.
The South Dakota Supreme Court's Stainsby v. Schallenkamp decision was the local marker. In that case, a deed naming "Fred E. Stainsby" as grantee was upheld as valid where the actual person identified was Edwin Frederick Stainsby, known to family and community as "Fred." The court applied the same community-identification principle to property records that the 1968 AG applied to driver's licenses.
Citations and references
Statutes:
- SDC 1960 Supp. 44.03B05, as amended by Chapter 136 of the Session Laws of 1966 (driver's permit / operator's license application, including birth certificate and photo requirements)
- SDC 1960 Supp. 37.10 (judicial procedure for change of name)
- SDC 1960 Supp. 44.9949 (false statements to motor vehicle authorities)
Cases:
- Soderberg v. Soderberg, 1 Dak. 503 (definition of "true name")
- Riley v. Litchfield, 168 Iowa 187, 150 NW 81
- Johnson v. Day, 2 ND 295, 50 NW 701 (middle name not part of legal name)
- Bacon v. Boston Elevator Co., 256 Mass. 301, 182 NW 35 (married woman's legal surname)
- Bidwell v. Coleman, 11 Minn. 78 (titles are not part of legal name)
- Clark v. Gilbert, 1 Pin. (Wis. 1843) 354
- Marshall v. Marshall, 230 Miss. 719, 93 So. 2d 822 (common-law right to change name)
- Smith v. US Casualty Co., 197 NY 420, 90 NE 947
- State v. Librizzi, 14 NJ Misc 904, 188 A 511 (driver's license suspension and assumed name)
- Zaflin & Rand v. Stetler, 146 Pa St. 434
- Brugier v. Brugier, 12 NJ Super 350, 79 A 2d 407 (minor's right to use assumed name)
- Reinken v. Reinken, 351 Ill 409, 184 NE 639
- Hanes v. Brennan, 135 NYS 2d 900
- Stainsby v. Schallenkamp, 72 SD 385, 34 NW 2d 832 (deed in assumed name)
- Bridges v. Hart, 302 Mass. 239, 18 NE 2d 1020 (vehicle registration in assumed name)
Source
Original opinion text
Drivers Permit Law. Driver's license may be issued in assumed name.
You have requested an official opinion based upon the following factual situation:
A male person between the age of 16 through 20 years, in pursuance of SDC 1960 Supp. 44.03B05, as amended by Chapter 136 of the Session Laws of 1966 tells the Department of Motor Vehicles his name is JOHN JONES. Upon presentation of his birth certificate, it is ascertained that his "birth name" is JOHN SMITH. Investigation shows that his mother had divorced his true father when the applicant was a small child and had thereafter married a man name JONES. The applicant was taken into such home, and although neither adopted by JONES nor having a judicial decree changing his name to JONES, was thereafter called JOHN JONES (after his mother's new name.)
QUESTION: In this situation, and in the absence of an adoption or a court decree changing his name, under which name should the operator's license be issued, JOHN JONES (the assumed name) or JOHN SMITH (the name on the birth certificate)?
It is my opinion that the operator's license should be issued in the assumed name JOHN JONES.
The law as it applies to "NAMES" is a most fascinating subject. Many of the facets of the law need not be explored. Concisely stated a "NAME" is used to identify and distinguish one human being from another. A "TRUE NAME" means the first or christian name, given a party at his baptism, and the surname of his ancestor. (Soderberg v. Soderberg, 1 Dak. 503) The christian surname may consist of letters only (Riley v. Litchfield, 168 Iowa 187, 150 NW 81, Ann. cas. 1917B 172). The law does not recognize a middle name, but only the one, and first "christian" name. The middle name or initial may be disregarded as immaterial. (Johnson v. Day, 2 ND 295, 50 NW 701). In the case of females, upon marriage her legal surname is that of her husband. (Bacon v. Boston Elevator Co., 256 Mass. 301; 182 NW 35; 47 ALR 1100). The designation of "Mrs.", "Jr.", "Sr.", "Dr." and the like ordinarily are not a part of the legal name but are merely titles. (Bidwell v. Coleman, 11 Minn. 78; Clark v. Gilbert, 1 Pin. (Wis. 1843) 354). However, many such additions of titles to the names are necessary in actuality in order to distinguish one person from another.
Historically, prior to the tenth century in England, there were no family or surnames. A son of John became "John's son"; a son of Peter, "Peter's Son." These appellations are the derivation of the family names of Johnson, Peterson, or the like. In the Gaelic parts of England, "Son" was denominated by "Fitz" or "Mac" added as a prefix to the father's christian name. The "O" was added as a prefix to identify a grandson. Thus the son of "Connor" could be called "Fitzconnor or McConnor", and his grandson "O'Connor." This is the foundation to the innumerable surnames commencing with "Mac", "Mc" or "O".
A surprising thing concerning surnames when first used is the fact that such was not inherited by a son as a matter of birthright, but rather it was bestowed upon a son or a grandson by the community in which he lived. Thus CAMDEN IN "REMAINS" (page 141) pointed out that he knew a man with eight sons, none of which bore the same surname, and not one had the surname of his father.
Historically, all of the following names are "assumed" and not true surnames: Honore De Balzac, Voltaire, Moliere, Dante, Petrarch, Richelieu, Napoleon, and Bonaparte. The family or surname of the Duke of Wellington, "Wellesley", was an assumed name; his grandfather having assumed the name "Wesley" which was expanded into "Wellesley" when the Duke was born. Maurice Barrymore was baptised as Herbert Lytle; Henry M. Stanley (Dr. Livingston, I presume), began his life as John Rowlands.
History will reveal that President Grant was christened as HIRAM ULYSSES GRANT. Due to confusion on the part of his sponsor to West Point he was enrolled in the academy as ULYSSES SIDNEY GRANT, the name he used thereafter throughout his life. Likewise, President GROVER CLEVELAND was baptised as STEPHEN G. CLEVELAND. In his teens he dropped the Stephen, assumed the name GROVER, and thereafter he was known as GROVER CLEVELAND.
With this short dissertation on names it is not surprising to find that in the common law that unless such is done for a fraudulent purpose, or will interfere with the rights of others, any person legally can change either his Christian name or surname to any that he desired.
Marshall v. Marshall, 230 Miss. 719, 93 So. 2d 822
Smith v. US Casualty Co., 197 NY 420, 90 NE 947, 26 LRA (NS) 1167, 18 Ann. Cas. 701
State v. Librizzi, 14 NJ Misc 904, 188 A 511
Zaflin & Rand v. Stetler, 146 Pa St. 434
Brugier v. Brugier, 12 NJ Super 350, 79 A 2d 407
Reinken v. Reinken, 351 Ill 409, 184 NE 639
Re Useeldinger, 35 Cal App 2d 723, 96 P 2d 958
Turesky v. Superior Court, 97 Cal App 2d 838, 218 P 2d 784
The fact that there may be statutes providing for judicial proceedings for the change of names (SDC 1960 Supp. 37.10) does not modify or amend this common law right to change of name. The statute merely adds an additional procedure for the change of a name, and provides, among other things, an exact date from which such change of names will commence.
Smith v. US Casualty Co., supra
State v. Librizzi, supra
Zaflin & Rand Co. v. Stetler, supra
Brugier v. Brugier, supra
Hanes v. Brennan, 135 NYS 2d 900
Brugier v. Brugier, 12 NJ Super 350, 79 A 2d 409 is an interesting and instructive case. A father petitioned the court for certain relief growing out of his divorce and among other things he sought an order requiring his infant daughter to use her true name, YVONNE LENORE BRUGIER, and refrain from using and assuming the name YVONNE WILLIAMS. It was shown that the father and mother of Yvonne had divorced, and thereafter the mother married one, Rex Williams. The stepfather never adopted such daughter, but when the family moved to a new community, Carmel, N.J., the infant daughter voluntarily enrolled herself into the school under the name YVONNE WILLIAMS, the name she is now known by in such community.
The New Jersey Court denied such motion to require the minor daughter to use her true name. It quoted the rules above stated relating to the common law to change a name, and that statutes authorizing judicial proceedings to change name did not affect this common law right. The court also found that the ordinary rules of minority would not limit the right of a minor from exercising such right to change his name. The court having found that the change of name was legal, and such being true, it could not in any way interfere with the exercise on the part of the minor of his right to change his name.
In Stainsby v. Schallenkamp, 72 SD 385, 34 NW 2d 832, the facts showed that one Flora E. Stainsby executed a deed in 1913 conveying certain land to FRED E. STAINSBY. It was shown that at that time she had a husband EDWIN FREDERICK STAINSBY, a daughter Lucy Stainsby, and a son Floyd Eugene Stainsby. In this action to quiet title the son alleges that he was Fred Stainsby, named as grantee in the deed. The evidence at the trial showed that the husband and the grantor "EDWIN FREDERICK" was known to his family and the persons in his community as "Fred". Likewise, it was shown that FLOYD EUGENE, was called "Eugene" or "Gene" by his friends and acquaintances, only his grandmother called him "Floyd". Our Supreme Court held that the overwhelming evidence showed that EDWIN FREDERICK STAINSBY was the grantee named as FRED E. STAINSBY in such deed.
The decision which is perhaps decisive of the question you have raised is Bridges v. Hart, 302 Mass. 239, 18 NE 2d 1020. In this case it was claimed that a vehicle registered in the name of THOMAS DOUEY was illegally registered, for the reason such was not the "true name" of the owner. The facts showed that such registrant was born in Canada and christened THEOPHILLUS DOUCETTE. That he migrated to the U. S. A. in 1919, was married in 1921, and until 1932 was called THEOPHILLUS DOUCETTE. In 1932 he went into business of his own and used the name THOMAS DOUEY. He registered the vehicle in 1934.
The Massachusetts Court held that there was no illegal registration in this factual situation. It held (as I believe we must of our statutes) that the purpose of requiring a person to register a motor vehicle in his "true name" is to afford identification of the owner of such motor vehicle. It then held that if a person is commonly and generally known in his community by an assumed name, and can be readily found at the address given in his application, the registration statute is complied with and there is no illegal registration of such vehicle, even though the true name of the registrant is not used.
I believe we must admit that the 1966 statutes, (as well as the 1965 statutes) requiring birth certificates and front facial view photographs of certain drivers is for the purpose of obtaining true age of the applicant and to identify him. There is nothing that I can find that says a person in South Dakota does not enjoy the common law right to assume any name that he desires, so long as such is not done for the purpose of defrauding others, or that will interfere with the rights of others. If, under the circumstances given, the child is known in the community where he lives as JOHN JONES, if to the community at large showing the picture on the driver's license would reveal that persons in the community said "that is John Jones," and if an inquiry made at address given would show that the applicant was there known and could be found under the name of JOHN JONES, it is my opinion that his operator's license should be issued in the name of JOHN JONES even though his birth certificate shows he originally was born as JOHN SMITH.
You have suggested that you feel that the only safe method is to issue the license in the name given in the birth certificate. As previously stated, the whole basis for registration of vehicles or drivers is a matter of identification. From a practical standpoint, your suggestion might have the opposite effect, for an inquiry made in this instance for JOHN SMITH, might show that other than his immediate family no one in his community would know of whom you were speaking.
Likewise, any fear you may have should be alleviated by SDC 1960 Supp. 44.9949 and a decision of the New Jersey Court in State v. Librizzi, 14 NJ Misc. 804, 188 A 511.
In the Librizzi case the applicant Librizzi questioned the revocation of his driver's license. The facts showed that his true name was DEWEY LIBRIZZI and under that name his driver's license was suspended. During the period of suspension he made application for a driver's license under the name DEWEY LA ROSE, giving an address different than the address where he lived. In such application, his answer to the question: "Did you ever have your license revoked or suspended?" he answered "NO". The Court pointed out that the defendant had a right to use an assumed name so long as such was not taken or assumed for a fraudulent purpose, which right was not destroyed by statutes providing for judicial proceedings for the change of name. However, the Court concluded that the defendant had made misstatements of facts in this application under the name LA ROSE. In such application he had not only the right but the duty to advise that LA ROSE and LIBRIZZI were one and the same person, and that under the name Librizzi his driving license was suspended. The license was properly revoked.
In summary, it is my opinion that because of the common law right to use an assumed name, and considering the purposes of the 1966 amendment to SDC 1960 Supp. 44.03B05, that in the factual situation given the license should be issued to the applicant in his assumed name, JOHN JONES, and not in the name as shown on his birth certificate which is the true name. Furthermore, it would seem that if such person were to apply for a driver's license in his birth certificate name, he should advise that he had a driver's license issued in the assumed name for the benefit of your department.