State v. Reeves

Decision Date27 October 1921
Docket Number4980.
PartiesSTATE ex rel. v. REEVES, State Auditor (PAYNE, Atty. Gen., et al., Interveners). McMASTER, Governor,
CourtSouth Dakota Supreme Court

Petition for writ of prohibition by the State of South Dakota, on the relation of William H. McMaster, Governor, against Jay Reeves, as Auditor of the State of South Dakota, in which Byron S. Payne, as Attorney General, and Fred L. Shaw, as Superintendent of Public Instruction, intervened, to restrain and prohibit the defendant from issuing warrants for certain purposes. Petition denied as to warrants affecting the Attorney General, and granted as to warrants affecting the Superintendent of Public Instruction.

The Supreme Court being of the opinion that all of its judges and all of the judges of the circuit court are disqualified to act herein, and having entered of record an order reciting the fact and selecting from the attorneys of record of said court the following persons to act in their place, to wit ROBERT C. HAYES, of Deadwood, T. H. NULL, of Huron, A. H ORVIS, of Yankton, LEWIS, W. BICKNELL, of Webster, and GEO. RICE, of Flandreau-and they having qualified as provided by law, and organized as a court, ROBERT C. HAYES presiding proceeded to hear and determine this proceeding.

This is an original proceeding commenced in the Supreme Court by the plaintiff, the state of South Dakota, on relation of William H. McMaster, its Governor, seeking to restrain and prohibit the defendant Jay Reeves, as Auditor of the state, from issuing warrants on the state treasurer for purposes hereinafter stated. In this proceeding Byron S. Payne, at Attorney General, and Fred L. Shaw, as Superintendent of Public Instruction, have intervened.

Plaintiff's petition consists of two parts, each relating to a special proceeding.

Charles E. De Land, of Pierre, and A. L. Wyman, of Yankton, for plaintiff.

Byron S. Payne, Atty. Gen., and E. D. Roberts, Asst. Atty. Gen., for defendant and interveners.


The relator petitions the court for a writ of prohibition to restrain the state Auditor from issuing warrants to the Attorney General in payment of his salary of $1,200 per annum as a member of the State Securities Commission. Defendant demurs to the petition, and the issue raised relates to the validity of section No. 10127 of the Revised Code of 1919, as amended by section 1 of chapter 82 of the Laws of the Second Special Session of 1920. The amendment is as follows:

"The Securities Commission, heretofore created, whose duty it shall be to administer and provide for the enforcement of the provisions of this chapter, shall continue to consist of the Superintendent of Banks who shall be president thereof, the Attorney General, the Rural Credit Commissioner, all of whom shall be members of such commission during their terms of office and one other member to be appointed by the Governor and who shall serve for a term of three (3) years, unless sooner removed by the Governor. *** The other members of said Commission shall be entitled to receive for their services, a salary of $1,200.00 per year, payable monthly as the salaries of other state officers are paid: Provided that any member of this Commission who receives $4,000.00 per annum or more as salary or compensation for his services in connection with any other state office, shall not be entitled to receive any additional compensation for services performed as a member of the State Securities Commission."

It is contended by the relator that this statute, in providing payment of salary to the Attorney General for services as a member of the State Securities Commission, violates that part of section 2, art. 21, of the state Constitution wherein it is declared that the Attorney General shall receive an annual salary of $1,000, and that certain state officers, including the Attorney General, "shall receive no fees or perquisites whatever for the performance of any duties connected with their office."

Section 13, art. 4, of the Constitution provides that the powers and duties of the Attorney General shall be as prescribed by law. The Legislature is prohibited by said section 2, art. 21, of the Constitution from paying to the Attorney General additional compensation for services which he may perform as the law officer of the state.

The legislative enactment in question must be sustained unless clearly in conflict with the constitutional provisions. The duties of the Attorney General at common law, as defined by section 5364 of the Revised Code of 1919, and as universally understood are those which he may render the state in his professional capacity.

The section of the Code referred to requires him to appear for the state and prosecute and defend all actions and proceedings, civil or criminal, in the Supreme Court, in which the state shall be interested or a party; to attend to all civil cases remanded by the Supreme Court to the circuit court, in which the state shall be a party or interested; to prosecute, at the request of the Governor, State Auditor, or State Treasurer any official bond or contract in which the state is interested, upon a breach thereof, and prosecute or defend for the state all actions, civil or criminal, relating to any matter connected with either of their departments; to consult with, advise, and exercise supervision over the several state's attorneys of the state in matters pertaining to the duties of their offices; to mail copies of certain opinions rendered by him to the executive accountant, state's attorneys, and county auditors; to give opinions upon questions of law, when requested, by the Legislature, or either branch thereof, or by the Governor, Auditor, Treasurer, or Superintendent of Public Instruction; to prepare contracts, forms, and other writings, which may be wanted for use of the state on request of the State Auditor, Treasurer, Superintendent of Public Instruction, or Commissioner of School and Public Lands; to report to the Legislature, or either branch thereof, upon any business relating to the duties of his office; and to prosecute state officers who neglect or refuse to pay into the state treasury public funds.

The Attorney General is a constitutional officer, the title designates him as the attorney for the state, and his duties, independent of the statute, are those of a law officer. This section of the Code in its specific enumeration of the functions of his office, recognizes the fact that the scope of his duties does not extend beyond law matters.

The law imposes upon the Attorney General as a member of the Securities Commission the duties and responsibilities borne by the other members; that is, by the Superintendent of Banks and the Rural Credit Commissioner. The Securities Commission examines all statements and documents filed in its office by investment companies, conducts examinations, determines the character of stocks, bonds, and securities, contracts and plans of business of such companies, and on approval thereof may permit sales of stocks or other securities. These are not duties connected with the office of Attorney General, but are of an administrative character, and wholly foreign thereto.

It is within the province of the Legislature to impose upon a constitutional officer duties separate and distinct from those of his office, and to provide compensation therefor in addition to his salary as a constitutional officer. In State v. Roddle, 12 S.D. 433, 81 N.W. 980, the Supreme Court of South Dakota has had occasion carefully to consider this question. In that case the Legislature had imposed upon the Secretary of State certain duties as a member of the brand and mark committee, and provided compensation therefor. As he was in receipt of an annual salary of $1,800, it was argued that this additional compensation constituted a violation of paragraph 2, art. 21, forbidding state officers from receiving any fees or perquisites for the performance of duties connected with their offices. The court said:

"We are clearly of the opinion that it was within the province of the Legislature to provide for a new officer to perform such duties, and the question arises whether in this instance it intended to do so. The language of the act is plain, its meaning is unmistakable, and there can be no doubt that the Legislature intended the person holding the office of Secretary of State to retain 20 per cent. of the brand fees as compensation for his services as a member of the brand and mark committee. Such act cannot be construed as adding new duties to the office of Secretary of State, because such construction would impute an intention on the part of the Legislature to violate the Constitution."

This decision is reaffirmed in Burns v. Board of County Commissioners, 39 S.D. 426, 164 N.W. 1028. In this case the Supreme Court held that the constitutional provision affecting the salary of a county judge (section 30 of article 5) that he should receive no "compensation perquisite or emoluments, for or on account of his office in any form whatever, except such salary," precluded retention of fees for services as a member of the county board of insanity. The constitutional provision considered in the Roddle Case (section 2, art. 21) forbade additional compensation to state officers for the performance of any duties connected with their office. The distinction in the constitutional provisions was recognized in the following language:

"There is a recognizable difference in meaning between fees 'for the performance of any duties connected with their offices,' as construed in the Roddle Case, and fees or compensation 'for or on account of his office.' The former prohibits extra compensation for the duties of the office; the latter prohibits extra

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