CHAPTER 9-3
INCORPORATION OF MUNICIPALITIES
9-3-1 Minimum population of municipalities.
9-3-1.1 Minimum distance from existing municipality--Exceptions.
9-3-2 Survey and map showing proposed municipal boundaries--Affidavit of surveyor.
9-3-3 Census of proposed municipality--Contents--Verification.
9-3-4 Survey, map, and census--Public inspection.
9-3-5 Voters' petition as application for incorporation--Number of signers--Petition contents--Name--Presentation to county commissioners.
9-3-6 County commissioners' order for election.
9-3-7 Repealed by SL 1999, ch 37, §§ 5 to 7.
9-3-10 Balloting--Majority required for incorporation--Name of municipality.
9-3-11 Canvass and return of votes.
9-3-12 County commissioners' order--Conclusive effect.
9-3-13 Adjustment of claims--Municipality and civil township.
9-3-14 Canvass of votes on incorporation--Filing--Recording--Registry maintained by secretary of state.
9-3-15 Repealed by SL 1974, ch 118, § 200.
9-3-17 Repealed.
9-3-18 Election by plurality at first election--Tie vote--Notice to persons elected.
9-3-18.1 Elected official--Term of office.
9-3-19 Repealed.
9-3-20 Validity of incorporation questioned only by state.
9-3-21 Validation of prior incorporation of municipalities.
9-3-22 Repealed.
9-3-23 Repealed.
9-3-24 Repealed.
9-3-25 Repealed.
9-3-26 Repealed.
9-3-27 Repealed.
9-3-28 Repealed.
9-3-29 Repealed.
9-3-1. Minimum population of municipalities.
A municipality may not be incorporated unless it contains at least one hundred legal residents and at least forty-five registered voters. For the purposes of this section, a person is a legal resident in the proposed municipality if the person actually lives in the proposed municipality for at least ninety days of the three hundred sixty-five days immediately preceding the filing of the petition or is an active duty member of the armed forces whose home of record is within the proposed municipality.
Source: PolC 1877, ch 24, § 2; CL 1887, § 1023; RPolC 1903, § 1418; SL 1909, ch 73; RC 1919, § 6172; SDC 1939, § 45.0302; SL 2016, ch 48, § 1.
9-3-1.1. Minimum distance from existing municipality--Exceptions.
A municipality may not be incorporated if any part of the proposed municipality lies within three miles of any point on the perimeter of the corporate limits of an incorporated municipality, unless:
(1) The incorporated municipality refuses or fails to annex a territory that is contiguous to the incorporated municipality after the contiguous territory has properly petitioned the municipality to be annexed as provided by § 9-4-1; or
(2) The territory to be incorporated has a post office and:
(a) Is in a different county than the incorporated municipality; or
(b) The incorporated municipality has a population of less than five thousand.
Source: SL 1971, ch 54; SL 1987, ch 74; SL 2016, ch 48, § 2; SL 2024, ch 28, § 20; SL 2024, ch 29, § 1.
9-3-2. Survey and map showing proposed municipal boundaries--Affidavit of surveyor.
Persons making application for the organization of a proposed municipality shall first cause an accurate survey and map to be made of the territory intended to be embraced within the limits of the proposed municipality showing the boundaries and area thereof and the accuracy of which shall be verified by the affidavit of the surveyor.
Source: PolC 1877, ch 24, § 1; CL 1887, § 1022; RPolC 1903, § 1417; RC 1919, § 6171; SDC 1939, § 45.0301; SL 2016, ch 48, § 3.
9-3-3. Census of proposed municipality--Contents--Verification.
Any person making application for the organization of a proposed municipality shall cause an accurate census to be taken of the landowners and the legal resident population of the proposed municipality not more than thirty days prior to the time of presenting the application to the board of county commissioners. The census must list the name of each landowner and legal resident residing in the proposed municipality. The census must be verified by the affidavit of the person taking the census.
Source: SDC 1939, § 45.0302; SL 1999, ch 37, § 1; SL 2016, ch 48, § 4; SL 2024, ch 28, § 21.
9-3-4. Survey, map, and census--Public inspection.
Within two days of the completion and verification of the survey, map, and census, the documents must be filed with the county auditor and made available to the public during regular business hours.
Source: PolC 1877, ch 24, § 3; CL 1887, § 1024; RPolC 1903, § 1419; RC 1919, § 6173; SDC 1939, § 45.0303; SL 2016, ch 48, § 5; SL 2024, ch 28, § 22.
9-3-5. Voters' petition as application for incorporation--Number of signers--Petition contents--Name--Presentation to county commissioners.
The application for incorporation of a proposed municipality must be by a petition verified by the circulator and signed by not less than twenty-five percent of the qualified voters who are either residents and registered voters in the proposed municipality or landowners in the proposed municipality who are also registered voters of this state. The application shall identify the type of government to be formed, the number of trustees, commissioners, or wards in the proposed municipality, the boundaries and area according to the survey, and the legal resident population according to the census taken. The application must include the name of the proposed municipality. The name may not be the same as any incorporated municipality in the state. The application must be filed with the county auditor and heard at a regular or special meeting of the board of county commissioners within sixty days of being filed.
Source: SDC 1939, § 45.0304; SL 1987, ch 67, § 20; SL 1999, ch 37, § 2; SL 2016, ch 48, § 6; SL 2024, ch 28, § 23.
9-3-6. County commissioners' order for election.
After the public hearing on the application, if the board of county commissioners determines the requirements of this chapter have been met, the board must set a date for an election on the question of whether the proposed municipality is to be incorporated. The election must be conducted pursuant to title 12.
Source: SDC 1939, § 45.0305; SL 1999, ch 37, § 3; SL 2024, ch 28, § 24.
9-3-7 to 9-3-9. Repealed by SL 1999, ch 37, §§ 5 to 7.
9-3-10. Balloting--Majority required for incorporation--Name of municipality.
The vote upon the question of incorporation of a proposed municipality must be by ballot that conforms to a ballot for a statewide question, except that the statement required to be printed on the ballot must be prepared by the state's attorney.
If a majority of the qualified voters, who are either residents and registered voters in the proposed municipality or landowners in the proposed municipality and are registered voters in this state, vote in favor of the incorporation, the proposed municipality is incorporated by the name and style specified in the application for incorporation.
Source: CL 1887, § 1030; SL 1901, ch 74, § 1; RPolC 1903, § 1425; RC 1919, § 6179; SDC 1939, § 45.0309; SL 2006, ch 29, § 4; SL 2024, ch 28, § 25.
9-3-11. Canvass and return of votes.
After the canvass of the vote, the county auditor shall make a verified statement showing the whole number of ballots cast, together with the number voting for and the number voting against incorporation and shall return the same to the board of county commissioners at its next meeting.
Source: CL 1887, § 1030; SL 1901, ch 74, § 1; RPolC 1903, § 1425; RC 1919, § 6180; SDC 1939, § 45.0310; SL 2024, ch 28, § 26.
9-3-12. County commissioners' order--Conclusive effect.
If satisfied of the legality of the election, the board of county commissioners must make an order declaring that the proposed municipality is incorporated by the name adopted. The order is conclusive of the fact of the incorporation in all suits by or against the municipality.
Source: CL 1887, § 1030; SL 1901, ch 74, § 1; RPolC 1903, § 1425; RC 1919, § 6180; SDC 1939, § 45.0310; SL 2024, ch 28, § 27.
9-3-13. Adjustment of claims--Municipality and civil township.
Within the sixty days following the order declaring the incorporation, the board of county commissioners has full power to settle and adjust all claims and accounts existing between the municipality and the civil township or townships that formed a part of the municipality previous to its incorporation. The board shall immediately proceed to settle and adjust the claims and accounts with due regard for the interests of all concerned.
Source: CL 1887, § 1030; SL 1901, ch 74, § 1; RPolC 1903, § 1425; RC 1919, § 6181; SDC 1939, § 45.0311; SL 2024, ch 28, § 28.
9-3-14. Canvass of votes on incorporation--Filing--Recording--Registry maintained by secretary of state.
Within thirty days of the order declaring incorporation, the county auditor shall file a certified copy of the canvass of the votes showing the result of the election held on the question of incorporation with the register of deeds and the secretary of state. The register of deeds shall record the certified copy. The secretary of state shall keep a registry of all incorporated municipalities within the state.
Source: RPolC 1903, § 1177; SL 1913, ch 119, § 8; RC 1919, § 6162; SDC 1939, § 45.0105; SL 2024, ch 28, § 29.
9-3-15, 9-3-16. Repealed by SL 1974, ch 118, § 200.
9-3-17. Repealed.
Source: SDC 1939, § 45.0313; SL 1981, ch 44, § 17; SL 1986, ch 65; SL 1999, ch 37, § 4; SL 2024, ch 28, § 38.
9-3-18. Election by plurality at first election--Tie vote--Notice to persons elected.
The person having the highest number of votes respectively for each office to be filled is declared elected. If there is a tie, the county auditor must determine by lot the person deemed elected. The county auditor shall notify each person elected of the person's election within two days after the result of the election is declared.
Source: PolC 1877, ch 24, § 16; CL 1887, § 1037; RPolC 1903, § 1432; SL 1905, ch 170; RC 1919, § 6183; SDC 1939, § 45.0313; SL 2024, ch 28, § 30.
9-3-18.1. Elected official--Term of office.
Each official elected at the first election shall hold office until the first Monday of the next following May or until a successor is elected and qualified.
Source: SL 2024, ch 28, § 31.
9-3-19. Repealed.
Source: PolC 1877, ch 24, § 17; CL 1887, § 1038; RPolC 1903, § 1433; RC 1919, § 5953; SDC 1939, § 12.0909; SL 2024, ch 28, § 39.
9-3-20. Validity of incorporation questioned only by state.
The validity of the incorporation of any municipality may only be challenged in an action or proceeding instituted by or on behalf of the state.
Source: PolC 1877, ch 24, § 53; CL 1887, § 1078; RPolC 1903, § 1467; RC 1919, § 6159; SDC 1939, § 45.0111; SL 2024, ch 28, § 32.
9-3-21. Validation of prior incorporation of municipalities.
In all cases where application has, before July 1, 1939, been made for the organization of a municipality and such municipality has assumed to act as a municipality, the organization thereof is hereby in all things legalized, ratified, and declared valid, notwithstanding any errors, omissions, or informalities therein.
Source: SL 1907, ch 6; SL 1907, ch 8; RC 1919, § 6184; SDC 1939, § 45.0314; SL 1992, ch 60, § 2.
