A candidate for Aberdeen mayor had lived in Aberdeen for 25 years total, but had spent about two years living and registered to vote in Sioux Falls before moving back. The statute said a city commissioner must have been 'a resident of the city for at least two years prior to his election.' Did the two-year residency have to come immediately before the election, or could it have been at any earlier time in the candidate's life?

Plain-English summary

A mayoral candidate in Aberdeen, scheduled to run on April 8, 1969, had a complicated residency history. He had lived in Aberdeen for about twenty-five years total. But for the roughly two years before the election (from mid-1966 to April 1968), he and his family had lived in Sioux Falls, where he was employed, was registered to vote, and otherwise acted as a Minnehaha County resident. He then moved back to Aberdeen.

SDC 45.0802 imposed a residency requirement on candidates for any member of a city Board of Commissioners (which included the mayor in commission-form cities): the candidate had to have been "a resident of the city for at least two years prior to his election." The candidate read that phrase to mean any two-year period at any point in his lifetime, so his twenty-three pre-Sioux-Falls years in Aberdeen qualified him. The Aberdeen City Attorney read it to mean the two years immediately before the election, so the Sioux Falls interlude disqualified him.

The AG sided with the City Attorney. The reasoning rested on a long line of South Dakota Supreme Court statutory-construction cases (Quebec Bank, State v. Morgan, Lawrence County v. Meade County, Red Wing Sewer Pipe, Olson v. Rogers) holding that legislative intent governs over literal text and that statutes should not be read to produce "absurd, unjust or useless" results. Reading the residency clause to allow any past two-year period would let someone who lived in town as a small child decades ago come back and run for office, which the AG concluded the Legislature could not have intended.

The opinion noted that purely municipal matters were usually outside the AG's opinion-issuing practice, but the statewide significance of the question and the absence of any Supreme Court interpretation made an exception appropriate. The AG cited a Pennsylvania case (Commonwealth ex rel Adams v. Stephans) interpreting a parallel "four years prior to his election" provision in the same way: the four years had to be immediately before the election.

The bottom line was that the phrase had to be read as if it said "and shall have been a resident of the city for at least two years immediately prior to his election." The candidate, having lived in Sioux Falls in the two years preceding April 1969, was not qualified to run for Aberdeen mayor.

Currency note

This opinion was issued in 1969. 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 municipal code was renumbered when the South Dakota Codified Laws (SDCL) replaced the South Dakota Code (SDC); the SDC 45.08 chapter on city commissioner qualifications now lives in chapters of SDCL Title 9 (Municipal Government), with different section numbers and updated qualification thresholds. Current candidates for municipal office should consult the current SDCL Title 9 residency provisions and any applicable municipal home-rule charter.

What the opinion meant at the time

For city attorneys advising on candidate eligibility, the opinion gave a workable rule for the most common ambiguity in residency clauses. "Two years prior to election" meant the two years immediately before the election, not any two-year period in the past. City attorneys could rely on this reading to advise municipal clerks on whether to accept or reject nomination petitions.

For candidates for city office, the message was direct: any meaningful interruption in residency during the qualifying period would disqualify them. Moving out of state for a job for a year or two, even with the intention to return, broke the residency chain. The qualifying clock restarted when the candidate moved back. (A candidate in this position would have to wait two full years after returning before being eligible.)

For voters and election officials, the opinion reduced the risk of late challenges to a candidate's eligibility upending an election. A clear rule about what "prior" meant cut down on disputes once filing deadlines passed.

For the South Dakota Supreme Court (which had never construed this provision), the opinion was a preview of where an AG read the statute, but the Court was free to take a different view if a case arose. The opinion expressly acknowledged that an authoritative answer required Supreme Court action.

For other municipal-officer qualification statutes with similar language (county officials, township officials, special district officials), the opinion's reasoning would have been persuasive even though it was specifically construing SDC 45.0802. The same statutory-construction logic applied broadly.

Common questions

Q: What if the candidate had been away for only a few months rather than two years?
A: The opinion did not draw a bright line for shorter absences. The two-year qualification period had to be continuous residency in the city, which suggests any break during those two years could be a disqualifier. In practice, brief absences (vacations, business travel, military deployments returning to the same home) would not typically be treated as a residency break, but extended out-of-state employment with family relocation and voter registration elsewhere, as in this case, plainly broke residency.

Q: Could the candidate have argued that he never abandoned Aberdeen as his domicile?
A: The facts cut against that argument. The candidate had moved his family to Sioux Falls, was employed there, registered to vote there, and "in all matters acted as a resident of such city." Those facts establish a Sioux Falls domicile, not just temporary out-of-state work. The AG's analysis took the candidate's actual conduct as controlling on residency, not his subjective intent.

Q: What if a candidate moved out of state but kept a home in Aberdeen and visited often?
A: The opinion did not address that variant. The traditional domicile analysis would ask which place the person treated as the permanent home. A candidate keeping a primary Aberdeen home, paying property taxes there, voting there, and treating an out-of-state stint as temporary might preserve Aberdeen residency. The conduct of the Sioux Falls candidate in this opinion (registering to vote in Sioux Falls and acting "in all matters" as a resident there) suggested he had treated Sioux Falls, not Aberdeen, as home during the disqualifying period.

Q: Did the AG decide whether the candidate's name could appear on the ballot anyway?
A: The opinion's holding was that the candidate was "not qualified to participate in the election of April 8, 1969 for Mayor of the City of Aberdeen." The ballot-removal mechanics (who challenges the candidacy, what court hears it, what relief is available) were not addressed. In practice, a city attorney could advise the city auditor to reject the nomination petition or, if the petition had already been certified, an interested party could seek a writ from a circuit court.

Q: Why did the AG cite a Pennsylvania case?
A: The AG acknowledged that the South Dakota Supreme Court had never construed this language. Without controlling South Dakota precedent, the AG looked to states whose courts had construed parallel residency clauses. Pennsylvania's Commonwealth ex rel Adams v. Stephans had read "four years prior to his election" to mean the four years immediately before the election; the AG found the reasoning persuasive for South Dakota's "two years prior to his election."

Q: What was the policy reason for requiring immediate-pre-election residency?
A: The opinion did not articulate the policy explicitly, but the underlying rationale was that the Legislature wanted candidates for city office to be currently familiar with city affairs, currently invested in city outcomes, and currently known to city voters. A person who had lived in town as a small child decades ago might satisfy the literal-past-residency reading but would not have any meaningful connection to current city affairs.

Q: Did the opinion say anything about how the statute should be read for other offices with different durations?
A: The opinion did not directly address other offices. The Pennsylvania case it cited dealt with a four-year residency, and the AG treated it as analogous, so by implication the same "immediately prior" reading would apply to other periods (one year, three years, five years). The principle was about how to read "prior," not about the specific duration.

Background and statutory framework

South Dakota's commission-form city government was established by SDC chapter 45.08 (1939, as amended). Under that form, the city's executive and legislative powers were vested in a small Board of Commissioners (typically three or five members), one of whom served as mayor. Aberdeen, Brown County, was one of the South Dakota cities using this form in 1969.

SDC 45.0802 set the qualifications for commissioner candidates: citizen of the United States, over the age of 26, and a resident of the city for at least two years prior to his election. The citizenship and age requirements were relatively unambiguous in application. The two-year residency requirement turned on what "prior to his election" meant.

The South Dakota Supreme Court had a well-developed statutory-construction jurisprudence by 1969, anchored in cases the AG cited:
- Quebec Bank v. Carroll (1890) established the early commitment to legislative-intent analysis.
- State v. Morgan (1891) articulated the rule that legislative intent controls over literal text, with intent collected from "context; from the occasion and necessity of the law; from the mischief felt and the remedy in view."
- Lawrence County v. Meade County (1895) authorized courts to modify, alter, or supply words to express legislative intent and avoid absurd results.
- Red Wing Sewer Pipe Co. (1915) and Olson v. Rogers (1923) reaffirmed the absurd-result avoidance principle.

State ex rel Jones v. Sargent (Iowa 1910) supplied the additional framework that the Legislature has authority to set qualifications for municipal officers (the Constitution did not preempt that area), and that there is no "absolute right" to hold public office.

Commonwealth ex rel Adams v. Stephans (Pa. 1942) was the closest out-of-state authority on the immediate-prior reading of a residency-duration clause. The AG used it as persuasive authority since no South Dakota case existed.

The opinion's holding was an interpretive overlay on SDC 45.0802. The Legislature could have removed the ambiguity by amending the statute to say "two years immediately prior to" the election, but absent amendment, the AG's reading was that the immediate-prior meaning was already there in the legislative intent.

Citations and references

South Dakota statutes:
- SDC 45.0802 (qualifications for member of city Board of Commissioners: citizen, over 26, resident "for at least two years prior to his election")

South Dakota Supreme Court cases:
- Quebec Bank v. Carroll, 1 SD 1, 44 NW 723 (1890)
- State v. Morgan, 2 SD 32, 48 NW 314 (1891)
- Lawrence County v. Meade County, 6 SD 528, 62 NW 131 (1895)
- Red Wing Sewer Pipe Co. v. City of Pierre, 36 SD 276, 154 NW 712 (1915)
- Olson v. Rogers, 47 SD 63, 195 NW 1019 (1923)

Other authorities:
- State ex rel Jones v. Sargent, 145 Iowa 298, 124 NW 339 (1910)
- Commonwealth ex rel Adams v. Stephans, 345 Pa 436, 28 A 2d 924 (Pa. 1942)
- 67 C.J.S. 126, OFFICERS, Section 11 (statutes restricting qualifications for office should be liberally construed in favor of the electorate's freedom of choice, but not so liberally as to produce unreasonable results)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1645
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2069-32.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

OFFICIAL OPINION NO. 69-32

Candidate for City Commissioner, residency requirement. Interpretation of phrase "for at least two years prior to his election" in SDC 45.0802

STATE OF SOUTH DAKOTA
OFFICE OF THE ATTORNEY GENERAL
April 4, 1969

Richard Kolker
Deputy State's Attorney, Brown County
Aberdeen, South Dakota 57401

Dear Mr. Kolker:

You have requested my opinion in regard to the pending mayor election for the City of Aberdeen, scheduled on April 8, 1969.

The factual situation shows that one of the candidates for Mayor lived in Aberdeen for twenty-five years, and in mid-1966 until April, 1968 resided with his family in Sioux Falls, Minnehaha County, South Dakota. During such period, such candidate was employed in Sioux Falls, became a registered voter of such city and county, and in all matters acted as a resident of such city.

The City of Aberdeen is governed by a Board of Commissioners, one member of which is mayor. SDC 45.0802, in providing qualifications for Commissioner, provides:

"No person shall be eligible to nomination or election as a member of the Board unless he shall be a citizen of the United States, over the age of 26 years, and shall have been a resident of the city for at least two years prior to his election."

The mentioned candidate has interpreted this provision to mean that such residency in the city may have been at any time, and need not be limited to the period of time immediately preceding such election. Others, including the City Attorney of Aberdeen, have construed this statutory requirement to require such residency to have immediately preceded such election, so that under the facts this candidate is not eligible to file a petition to run as a candidate in such election.

You have asked me to interpret such phrases "for at least two years prior to his election" as used in the quoted provisions of the statute.

You can appreciate that in purely municipal matters, this office should decline to issue opinions. However, because of the statewide interest in the problem presented, and the patent fact that such statute has not been interpreted by our Supreme Court with reluctance I am issuing an official interpretation expressing my interpretation of the statutes.

In 67 CJS 126 (OFFICERS, Section 11) it is suggested that the proper rule in interpreting statutes or constitutional restrictions upon qualifications to hold office should be liberally construed in favor of the right of the people to exercise freedom of choice in the selection of their officers. (This broad statement may support the contentions of the candidate.) However, the text-writer adds the words of caution that merely because of this rule it does not follow that the courts should give the statutory language an unreasonable construction in order to uphold this right of the electorate or the right of the candidate.

In State ex rel Jones v. Sargent (1910) 145 Iowa 298, 124 NW 339, 27 LRA (NS) 719, 139 Am. St. Rep. 439 it was pointed out when, as in South Dakota, the Constitution provides no qualifications for municipal officers and in fact provides for no specific municipal officers, the Legislature has the authority to create officers for such municipal corporations, and has the right to provide who shall be eligible for such office. The Court also pointed out that which is obvious that there is no absolute right to hold public office or to be a candidate therefor.

In considering the question you have presented, we must start with the premise that the Legislature has the authority to provide qualifications for municipal officers. This has been done in SDC 45.0802. The problem you have presented is to determine what qualifications, insofar as residency is concerned, the Legislature required as a prerequisite to being a candidate for the Board of Commissioners of a municipality. The solution of such problem must come from interpreting and construing such statute.

Our Supreme Court has on numerous occasions, discussed the problem of statutory construction. Since Quebec Bank v. Carroll (1890) 1 SD 1, 44 NW 723, our Court has been committed to that which is obvious. The paramount question presented in construing any statute is to first determine the intent of the Legislature. Once this intent is found, the statute must then be construed to conform with the intention of the Legislature, and if a literal construction of the words used do not conform with such intent, the literal construction must give way to such intent.

In the landmark case, State v. Morgan (1891) 2 SD 32, 48 NW 314 (Writ of Error dismissed) 159 US 261, 15 S. Ct. 1041, 40 L ed 145, our Court said:

"In interpreting statutes, the intention of the lawmakers will prevail over the literal sense of the letter. When the words used are not explicit the intention is to be collected from the context; from the occasion and necessity of the law; from the mischief felt and the remedy in view; and the intention is to be taken or presumed according to what is consonant with reason and good discretion."

In pursuance to this mandate, our court in Lawrence County v. Meade County (1895) 6 SD 528, 62 NW 131 pointed out that when the intention can be collected from the statute itself, words may be modified, altered or supplied so as to obviate any repugnance or inconsistence with the intention. Many times our court has pointed out that there is always a presumption that the Legislature had some object in mind in enacting any particular legislation, and that all legislation must be construed consonant with an intention not to do an absurd, unjust or useless thing. See Lawrence County v. Meade County, supra, Red Wing Sewer Pipe Co. v. City of Pierre (1915) 36 SD 276, 154 NW 712 and Olson v. Rogers (1923) 47 SD 63, 195 NW 1019. Consistent with these admonitions of our court, there seems little question that the Legislature, within its right, provided some form of residency as a qualification to be eligible to participate as a candidate for the Commission of any municipal corporation within this state. To say that by the use of the phrase "for at least two years prior to his election," the Legislative intent was that such two year residency could have occurred at any time, and that the intent was not to limit such to that period of time immediately preceding such election, is in fact to state the Legislature intended an absurd, unjust or useless requirement, which is inconsistent with reason and good discretion. This must follow because such an interpretation carried to its extreme, as has been suggested to me, would provide that a person could be born in Municipality "X", live there until he was two and one-half years old, at which time with his parents he moved from the state. At any time thereafter, and after obtaining the age of twenty-six, and qualifying as a "Citizen of the United States," irrespective of where he may have lived, such person could return to Municipality "X", and if he could obtain sufficient signatures to his petition, he could be a candidate for the City Commission, irrespective of the time in fact that he had resided within such municipality.

I must agree with the City Attorney of Aberdeen. The argument and rationale of the Supreme Court of Pennsylvania in Commonwealth ex rel Adams v. Stephans, 345 Pa 436, 28 A 2d 924 in interpreting the legislative enactment of the qualification "four years prior to his election," must be construed to mean that period of time immediately prior to his election, is correct, and applicable to our statute.

Following the mandate of our Court in Lawrence County v. Meade County, 6 SD 528, 62 NW 131, in order to express the legislative intent we must interpret the phrase in question to read as follows:

"and shall have been a resident of the city for at least two years immediately prior to his election."

Thus interpreted, it seems clear that this particular candidate is not qualified to participate in the election of April 8, 1969 for Mayor of the City of Aberdeen.

Respectfully submitted,

Gordon Mydland
Attorney General