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CHAPTER 18-1

NOTARIES PUBLIC

18-1-1      Appointment by secretary of state--Term of office--Application procedure--Authority.
18-1-1.1      Definitions.
18-1-2      Oath and bond of notary.
18-1-3      Seal, oath, and bond filed with secretary of state.
18-1-3.1      Requirements of seal--Commission expiration date required below seal.
18-1-4      Issuance of commission--Posting--Records maintained by secretary of state.
18-1-5, 18-1-6.      Repealed.
18-1-7      Notarial acts of interested person or agent valid if not principal party to instrument.
18-1-8      Repealed.
18-1-9      Fee chargeable by notary.
18-1-10      Faith and credit to notarial acts.
18-1-11      Affixing official signature without appearance by parties as misdemeanor.
18-1-11.1      Notarial act permitted when person appears by means of communication technology--Requirements.
18-1-12      Acting after expiration of term or disqualification as misdemeanor.
18-1-12.1      Performing notarial act without commission as misdemeanor.
18-1-12.2      Party to transaction as notary public prohibited.
18-1-13      Removal of notary from office for violation.
18-1-14      Notice to notary of revocation of commission.
18-1-15 to 18-1-17. Repealed.


     18-1-1.   Appointment by secretary of state--Term of office--Application procedure--Authority. The secretary of state shall appoint notaries public, who have residence in this state as defined in § 12-1-4. A notary public shall hold office for six years unless sooner removed by the secretary of state. An applicant to become a notary public shall complete an application form as prescribed by the secretary of state pursuant to chapter 1-26. The applicant shall submit a fee of thirty dollars. The application shall include the applicant's name, street, city, state, zip code, county, and date of birth. The applicant shall apply in the same name as that which will appear as the seal imprint. Each notary may, anywhere in this state, administer oaths and perform all other duties required by law. The secretary of state may not appoint as a notary public any person who has been convicted of a felony. The secretary of state may also appoint an applicant as a notary public if the applicant resides in a county bordering South Dakota and the applicant's place of work or business is within the State of South Dakota.

Source: SDC 1939, § 32.1301; SL 1957, ch 176; SL 1979, ch 153, § 1; SL 1997, ch 120, § 1; SL 2003, ch 8, § 6; SL 2008, ch 107, § 1; SL 2009, ch 4, § 6.


     18-1-1.1.   Definitions. Terms in this chapter mean:
             (1)      "Acknowledgment," a declaration by a person before a notarial officer that the person has signed a document for the purpose stated in the document and, if the document is signed by a representative who is:
             (a)      An authorized officer, agent, partner, trustee, or other representative of a person other than a natural person;
             (b)      A public officer, personal representative, guardian, or other representative in the capacity stated in a document;
             (c)      An attorney-in-fact for a natural person; or
             (d)      An authorized representative of another person in any other capacity, that the representative signed the document with proper authority and signed it as the act of the person identified in the document;
             (2)      "Communication technology," an electronic device or process that allows a notarial officer and a person not in the physical presence of the notarial officer to communicate with each other simultaneously by sight and sound;
             (3)      "Notarial act," an act that a notarial officer may perform under the laws of this state. The term includes taking an acknowledgment, administering an oath or affirmation, taking a verification on oath or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument;
             (4)      "Notarial officer," a notary public or other person authorized to perform a notarial act;
             (5)      "Verification on oath or affirmation," a declaration, made by a person on oath or affirmation before a notarial officer, that a statement in a document is true.

Source: SL 2019, ch 100, § 1.


     18-1-2.   Oath and bond of notary. Each notary public, before performing the duties of the office, shall take an oath as required by § 3-1-5, and shall give a bond to this state, to be approved by the attorney general, in the penal sum of five thousand dollars, conditioned for the faithful discharge of the duties of the office.

Source: SL 1862, ch 62, § 2; PolC 1877, ch 17, § 2; CL 1887, § 496; RPolC 1903, § 735; RC 1919, § 5236; SDC 1939 & Supp 1960, § 32.1303; SL 1974, ch 55, § 23; SL 1997, ch 120, § 2.


     18-1-3.   Seal, oath, and bond filed with secretary of state. Every notary public before entering upon the duties of his office, shall provide an official seal and file an impression of the same, together with his oath and bond, in the Office of the Secretary of State.

Source: SL 1862, ch 62, § 8; PolC 1877, ch 17, § 8; CL 1887, § 503; RPolC 1903, § 742; RC 1919, § 5243; SDC 1939 & Supp 1960, § 32.1303.


     18-1-3.1.   Requirements of seal--Commission expiration date required below seal. A notarial officer shall have a seal that shall be used for the purpose of acknowledging a document. The seal shall be of a type approved by the secretary of state and shall contain at least:
             (1)      The notarial officer's name;
             (2)      The words, South Dakota;
             (3)      The words, notary public; and
             (4)      A border surrounding the imprint.
     A seal may be a rubber stamp or a physical device capable of affixing to or embossing on a tangible document. A rubber stamp seal shall contain the word, seal.
     A notarial officer shall indicate the date on which the notarial officer's commission expires below the seal under this section.

Source: SL 1988, ch 180; SL 2008, ch 107, § 2; SL 2019, ch 100, § 3.


     18-1-4.   Issuance of commission--Posting--Records maintained by secretary of state. The secretary of state shall issue a commission to each notary public which shall be posted in a conspicuous place in the notary's office for public inspection. The secretary of state shall keep in his office a record of such appointments and the date of their expiration.

Source: SL 1889, ch 104, § 1; RPolC 1903, § 734; RC 1919, § 5235; SDC 1939 & Supp 1960, § 32.1302; SL 1979, ch 153, § 2.


     18-1-5, 18-1-6.   Repealed by SL 1974, ch 55, § 50.


     18-1-7.   Notarial acts of interested person or agent valid if not principal party to instrument. A person who is personally interested directly or indirectly, or as a stockholder, officer, agent, attorney, or employee of any other person or party to a transaction concerning which the person is performing the function of a notary public, may make any certificate, take any acknowledgment, administer any oath, or do any other official act as a notary public with the same legal force and effect as if the person had no interest, provided the instrument or document does not show upon its face that the person is a principal party to the instrument or document.

Source: SL 1911, ch 197; RC 1919, § 5250; SDC 1939 & Supp 1960, § 32.1308; SL 2019, ch 100, § 4.


     18-1-8.   Repealed by SL 1979, ch 153, § 3.


     18-1-9.   Fee chargeable by notary. A notary public may charge and receive a fee not to exceed ten dollars for each instrument notarized, except that no notary public may charge a fee for notarizing a request for an absentee ballot.

Source: SDC 1939 & Supp 1960, § 32.1312; SL 1979, ch 153, § 4; SL 1997, ch 120, § 3; SL 2004, ch 143, § 1.


     18-1-10.   Faith and credit to notarial acts. Full faith and credit shall be given to all the protestations, attestations, and other instruments of publication, of all notaries public now in office or hereafter to be appointed under the provisions of this chapter.

Source: SL 1862, ch 62, § 11; PolC 1877, ch 17, § 11; CL 1887, § 507; RPolC 1903, § 746; RC 1919, § 5247; SDC 1939 & Supp 1960, § 32.1309.


     18-1-11.   Affixing official signature without appearance by parties as misdemeanor. A person is guilty of a Class 2 misdemeanor if the person is a notarial officer who affixes the person's official signature to any document when the parties to the transaction memorialized in the document have not appeared before the person either in-person or in accordance with § 18-1-11.1.

Source: SL 1887, ch 116, § 1; CL 1887, § 508; RPolC 1903, § 747; RC 1919, § 5248; SDC 1939 & Supp 1960, § 32.1313; SL 1979, ch 153, § 5; SL 2019, ch 100, § 5.


     18-1-11.1.   Notarial act permitted when person appears by means of communication technology--Requirements. A notarial officer in this state, while located in this state, may perform by means of communication technology a notarial act executed on a document by a person who appears before, but is not in the physical presence of the notarial officer if the notarial officer:
             (1)      Has personal knowledge of the identity of a person through dealings sufficient to provide reasonable certainty that the person has the identity being claimed;
             (2)      Affixes the notarial officer's signature to the original tangible document executed by the person;
             (3)      Indicates in the notarial certificate the remote location of the person executing the document;
             (4)      Indicates in the notarial certificate that the notarial act involved a statement made or a signature executed by a person not in the physical presence of the notarial officer, but appearing by means of communication technology; and
             (5)      Is able reasonably to confirm that the document before the notarial officer is the same document in which the person made the statement or on which the person executed a signature.

Source: SL 2019, ch 100, § 2.


     18-1-12.   Acting after expiration of term or disqualification as misdemeanor. It is a Class 2 misdemeanor for any notary public to exercise the duties of his office after the expiration of his commission or when he is otherwise disqualified.

Source: SL 1887, ch 116, § 1; CL 1887, § 508; RPolC 1903, § 747; RC 1919, § 5248; SDC 1939 & Supp 1960, § 32.1313; SL 1979, ch 153, § 6.


     18-1-12.1.   Performing notarial act without commission as misdemeanor. A person is guilty of a Class 1 misdemeanor if the person performs a notarial act on any document without first obtaining a commission from the secretary of state under § 18-1-4.

Source: SL 1997, ch 120, § 5; SL 2019, ch 100, § 6.


     18-1-12.2.   Party to transaction as notary public prohibited. It is a Class 1 misdemeanor for a person to affix a signature to a document as a notary public when the person has also signed the document as a party to the transaction proceeding.

Source: SL 1997, ch 120, § 6.


     18-1-13.   Removal of notary from office for violation. Any notary public who is convicted of committing an act which is designated as a misdemeanor in this chapter or any felony shall be removed from office by the secretary of state.

Source: SDC 1939, §§ 13.1254, 32.1313; SDC Supp 1960, § 32.1313; SL 1979, ch 153, § 7; SL 1997, ch 120, § 4.


     18-1-14.   Notice to notary of revocation of commission. Should the commission of any notary public be revoked, the secretary of state shall immediately notify such person by mail.

Source: PolC 1877, ch 17, § 10; CL 1887, § 506; RPolC 1903, § 745; RC 1919, § 5246; SDC 1939 & Supp 1960, § 32.1306; SL 1974, ch 55, § 24.


     18-1-15 to 18-1-17.   Repealed by SL 1974, ch 55, § 50.


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