Can a small-town mayor in South Dakota write traffic tickets and patrol the streets if the city no longer has a police officer? Does the statute giving the mayor 'all powers conferred by law upon sheriffs to suppress disorder and keep the peace' make the mayor a law enforcement officer?
Plain-English summary
The City of New Underwood ran into a problem after its sole full-time police officer left and the position was eliminated. The new full-time mayor started writing traffic tickets himself and responding to calls for assistance. He pointed to SDCL 9-29-16, which gave mayors "all the powers conferred by law upon sheriffs to suppress disorder and keep the peace." On his reading, that statute made him the functional equivalent of a sheriff inside city limits, with full authority to enforce traffic laws and run a one-man police department.
The city brought the question to AG Roger Tellinghuisen. The AG's answer was no on all three sub-questions. SDCL 9-29-16 was a narrow grant. It gave the mayor only what SDCL 7-12-1 gave the sheriff: the power to "keep and preserve the peace" by "call[ing] to his aid such persons or power of his county as he may deem necessary." That was a power to summon help, not a power to be the help yourself. The mayor could not stand in for a missing police force.
The harder reason was statutory architecture. The Legislature had built up a parallel system of certified law enforcement officers under SDCL chapter 23-3, with mandatory training under SDCL 23-3-26 because legislators had specifically recognized that "law enforcement work is of such a nature as to require education and training of a professional character." The definition of "law enforcement officer" in SDCL 22-1-2(20) covered employees of the state or its political subdivisions who were "responsible for the prevention or detection of crimes" or "for the enforcement of the criminal or highway traffic laws." A mayor had no such statutory responsibility. He was not a law enforcement officer, and the statutes that controlled citation authority (SDCL 23-1A-7, 32-33-1.1, 32-33-2, 9-29-19.1) all required law enforcement officer status to operate.
A separate problem: SDCL 9-14-16 forbade a mayor from holding any other municipal "office," which SDCL 9-14-1 specifically defined to include the office of policeman or marshal. So the mayor could not just appoint himself police chief either. The structural separation was intentional.
The AG closed by noting that the mayor still had the citizen's arrest authority under SDCL 23A-3-3 that any person in South Dakota had. The mayor was not stripped of all law-related power. But he could not act as a substitute for a certified officer.
Currency note
This opinion was issued in 1987. 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. The municipal governance, law enforcement officer certification, and traffic enforcement statutes referenced here have all been amended in the decades since 1987. The statutory numbering has shifted in places, and the certification requirements have been strengthened by amendments to SDCL chapter 23-3.
What the opinion meant at the time
For mayors of small towns considering picking up enforcement duties when their police force shrank or vanished, the opinion was a clear stop sign. Writing tickets without certification was unlawful, and tickets so issued would presumably have been subject to dismissal if challenged.
For city councils trying to figure out how to cover law enforcement after losing their officer, the opinion pointed them toward the contracting and mutual-aid mechanisms that existed in 1987 South Dakota law. A city without its own police could contract with the county sheriff's office, with a neighboring city's department, or with the highway patrol for enforcement. The mayor could not be the contract.
For drivers who had received a ticket from a non-certified mayor or marshal acting under SDCL 9-29-16, the opinion was useful evidence. The citation lacked the statutory predicate. A motion to dismiss in municipal court would likely have prevailed based on the AG's analysis.
For state regulators tracking compliance with SDCL chapter 23-3 certification, the opinion reinforced the rule that the statutes were not optional. The "keep the peace" power of mayors and marshals was older language with a narrower reach than its plain English might suggest.
Common questions
Q: What was the citizen's arrest exception the AG mentioned?
A: Under SDCL 23A-3-3, any private person could arrest another for a public offense committed in the person's presence, or for a felony when the person had reasonable cause to believe the other had committed it. The mayor retained that right because every citizen had it, but it was distinct from law enforcement officer authority and came with no protection from civil liability for wrongful detention.
Q: Could the mayor at least direct the city marshal to do the enforcement?
A: A marshal was a separate office under SDCL 9-14-1 and could not be held by the mayor himself under SDCL 9-14-16. If the city had a marshal, that marshal's authority depended on the marshal's own certification status under SDCL chapter 23-3, not on the mayor's directive.
Q: Did "keep the peace" mean anything substantive then?
A: Yes, but the operational meaning was limited. The mayor could call for help in true breach-of-the-peace emergencies, much like a sheriff could call a posse. The AG read SDCL 7-12-1 as the authority to summon aid, not to act personally as enforcement.
Q: Why did the Legislature give mayors the SDCL 9-29-16 power at all if it was this narrow?
A: SDCL 9-29-16 dates from older municipal-government statutes when small towns had part-time or no police. The summon-aid power let a mayor mobilize residents to deal with a riot or other emergency. The Legislature later built the formal certification system on top of that older language, and the AG read the two regimes together by limiting 9-29-16 to its summon-aid core.
Q: What about SDCL 9-29-19 and 9-29-19.1, which talk about traffic citations?
A: Both statutes referred to "law enforcement officers." The AG concluded that the mayor was not one. So the citation-issuing procedure those statutes outlined did not authorize the mayor's activity.
Background and statutory framework
South Dakota's small-town governance in the 1980s left many municipalities thinly staffed. New Underwood, with a population in the low hundreds, was typical: when the budget tightened, the police line item was an easy target. The instinct to backfill with the mayor running tickets was understandable but ran headlong into a statutory system that had layered professionalization onto law enforcement over several decades.
SDCL chapter 23-3 established the certification system. By 1987 it required formal training before a person could be sworn as a law enforcement officer. The Legislature had explicitly recognized in SDCL 23-3-26 that the work demanded professional training. Allowing an uncertified mayor to write tickets would have undercut the entire scheme.
The definitional control point was SDCL 22-1-2(20), which set out who counted as a "law enforcement officer" for purposes of criminal procedure and traffic enforcement. The definition focused on statutory responsibility for crime prevention and detection, law enforcement, or supervision of confined persons. Sheriffs satisfied it. Certified municipal officers satisfied it. Mayors did not.
The dual-office bar in SDCL 9-14-16 closed the practical workaround. A mayor could not also be the police chief or marshal of his own town. The Legislature wanted municipal executive authority and municipal police authority in separate hands.
Citations and references
Statutes:
- SDCL 9-14-1 (municipal offices)
- SDCL 9-14-16 (mayor dual-office bar)
- SDCL 9-29-16 (mayor's sheriff-power grant)
- SDCL 9-29-19, 9-29-19.1 (citation procedures)
- SDCL ch. 7-12 (sheriffs)
- SDCL 7-12-1, 7-12-4 (sheriff duties)
- SDCL 22-1-2(20) (law enforcement officer definition)
- SDCL 23-1A-7 (detention for citation)
- SDCL ch. 23-3 (certification)
- SDCL 23-3-26 (professional training requirement)
- SDCL 23A-3-3 (citizen's arrest)
- SDCL 24-11-13 (sheriff jail custody)
- SDCL 32-33-1.1, 32-33-2 (traffic enforcement)
Source
Original opinion text
Mayoral powers
Dear Mr. Groff:
You have requested an official opinion from this office based upon the following factual situation:
FACTS:
The city of New Underwood has a full-time mayor. On several occasions in the past few months the mayor has issued uniform traffic citations to individuals whom he believes he has observed violating traffic laws. The mayor has also advised the city council that he will be responding to certain calls for assistance from city residents. The mayor is not a certified police officer, nor has he ever been employed in any law enforcement capacity. The mayor takes the position that SDCL 9-29-16 grants him the authority to act in this manner. Shortly after this mayor took office, the fulltime police officer employed by the city was relieved of his duties and that position eliminated.
Based upon these facts, you have asked the following questions:
QUESTIONS:
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Does the language of SDCL 9-29-16 grant authority to the elected full-time mayor of a municipality to issue uniform traffic citations and otherwise engage in routine traffic control normally performed by uniformed officers and to respond to citizen complaints?
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If the statutory grant of police powers to a mayor can include certain traffic control functions, how is that authority reconciled with the language of SDCL 9-29-19 and 9-29-19.1 which only authorizes the issuance of uniform traffic citations to individuals by a law enforcement officer?
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If the full-time mayor of a municipality does have authority to issue traffic citations and perform other duties normally associated with routine traffic patrol, does the mayor's authority extend so as to allow him to hire other individuals to assist him in these activities free from any of the training and certification requirements normally associated with the employment of police officers?
IN RE QUESTION NO. 1:
SDCL 9-29-16 provides:
The mayor of a city having a common council, each member of a board of city commissioners, and each town marshal shall possess, within the jurisdiction of the municipality, all the powers conferred by law upon sheriffs to suppress disorder and keep the peace.
Through this statute, a mayor of a municipality derives all of the powers of a county sheriff to suppress disorder and keep the peace within the jurisdiction of his municipality. It is, however, important to note that the statute does not confer upon a mayor all of the power and authority of a duly certified law enforcement officer. The statute is a limited grant of those powers that a sheriff has to "suppress disorder and keep the peace." SDCL 9-29-16 (Emphasis added).
SDCL ch. 7-12 outlines the powers and duties of a county sheriff. The only statute within this chapter which specifically addresses what powers a sheriff has to keep the peace is the first clause of SDCL 7-12-1 which states, "[T]he sheriff shall keep and preserve the peace within his county, for which purpose he is empowered to call to his aid such persons or power of his county as he may deem necessary." (Emphasis added.) Applying this statute to SDCL 9-29-16 yields the conclusion that a mayor of a municipality has the power to call to his aid such persons or power of his municipality as he may deem necessary to suppress disorder and keep the peace. In my opinion, this does not include authority for the mayor to issue traffic citations and engage in routine traffic control or to engage in other activities normally performed by certified law enforcement officers. Such a reading of SDCL 9-29-16 would be inconsistent with the provisions of SDCL ch. 23-3 on certification of law enforcement officers and would run afoul of the Legislature's specifically expressed recognition that law enforcement work "is of such a nature as to require education and training of a professional character." SDCL 23-3-26. Such reading of SDCL 9-29-16 would also bypass the intent of SDCL 9-14-16 which forbids a mayor to hold any other "office" under the municipality (including that of a policeman or marshal, SDCL 9-14-1) while an incumbent in the office of mayor.
A sheriff derives his authority to detain violators and issue traffic citations through his status as a "law enforcement officer." SDCL 23-1A-7 gives a "law enforcement officer" the authority to halt and detain a person for the period of time necessary to issue a petty offense complaint or summons. SDCL 32-33-1.1 allows a "law enforcement officer" to make an arrest at the scene of a traffic accident. SDCL 32-33-2 outlines the procedure an "officer" should follow in issuing a summons to a violator of the traffic laws in SDCL tit. 32. In my opinion, an "officer" proceeding under SDCL 32-33-2 is operating under the authority of SDCL 23-1A-7 in detaining the violator for the purpose of issuing the summons and therefore, must be a "law enforcement officer." Finally, you have pointed out in your own letter that SDCL 9-29-19.1 refers to the procedure a "law enforcement officer" should follow in arresting a person for a violation of a municipal ordinance.
The above-referenced statutes present the question of whether a mayor of a municipality is a "law enforcement officer" because of the authority given mayors by SDCL 9-29-16 to suppress disorder and keep the peace. A "law enforcement officer" is defined by SDCL 22-1-2(20) as:
An officer or employee of the state or any of its political subdivisions or of the United States, or, while on duty, an agent or employee of a railroad or express company or security personnel of an airline or airport, who is responsible for the prevention or detection of crimes, for the enforcement of the criminal or highway traffic laws of the state, or for the supervision of confined persons convicted of a crime. [Emphasis added.]
Clearly a county sheriff falls within this definition. SDCL 7-12-4 gives sheriffs the duty to "see to it as far as may be possible that all the laws of this state and especially all laws relating to alcoholic beverages are faithfully executed and enforced." [Emphasis added.] Sheriffs are made responsible for supervision of confined persons convicted of a crime by SDCL 24-11-13 which states, "The sheriff. . . shall have charge of the jail of his county or municipality and of all persons by law confined therein." Thus, it is beyond dispute that county sheriffs are "law enforcement officers" and, therefore, have authority as such to issue traffic citations and engage in traffic control. The same is not true of a municipal mayor. Mayors have none of the statutory duties or responsibilities that sheriffs have to prevent or detect crime, to enforce the criminal or highway traffic laws or to supervise confined persons convicted of a crime. As a result, mayors of municipalities do not have the status of "law enforcement officers" and, therefore, may not issue traffic citations, engage in traffic control or carry out other functions assigned by statute to "law enforcement officers." This is not to say that mayors are denied the authority to make a citizen's arrest within the provisions of SDCL 23A-3-3.
Therefore, my answer to your first question is no. In my opinion, SDCL 9-29-16 only grants the mayor of a municipality the power to call to his aid such persons or power of the municipality as he may deem necessary to suppress disorder and keep the peace. SDCL 9-29-16 does not grant mayors the authority to issue traffic citations, engage in routine traffic control or to perform other functions assigned by statute to certified law enforcement officers.
Given my answer to your first question, I believe it is unnecessary to address your questions 2 and 3.
Sincerely,
Roger A. Tellinghuisen
ATTORNEY GENERAL