February 10, 1976
Mr. Charles P. Shroyer
Hughes County State's Attorney
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-21
Compensation of county commissioners
Dear Mr. Shroyer:
You have requested an opinion as to the proper interpretation of the statutes relating to compensation of county commissioners. The specific statutes in question provide as follows:
7-7-3. County commissioners shall be compensated at the rate of fifty dollars per month and in addition thereto shall be allowed, either in per diem or monthly salary, an amount totalling no more than the amount prescribed in §7-7-5. The method of payment, whether per diem or salary, shall be determined by the board of county commissioners in each county. If the per diem method is used, the county commissioners shall be allowed the sum of not less than twenty-five nor more than forty dollars for each day they are actually and necessarily employed in the duties and business relating to county affairs and the duties of their office and in attending and returning from session of said board and mileage for the distance actually traveled in attending the meetings of the board, or when engaged in other official duties, to be paid out of the general county fund, said per diem to be set by the commission of each county on the first regular meeting date in January of each year. If the salary method is used the county commissioners shall be paid an amount totalling no more than the amount prescribed in §7-7-5, in equal payments, and mileage for the distances actually traveled in attending the meeting of the boards, or when engaged in other official duties, to be paid out of the general county fund.
7-7-5, The per diem or salary of a county commissioner shall be limited in amount in anyone year as follows:
(1) . . . .
(2) . . . .
(3) To three thousand five hundred dollars as per diem or salary in counties of eight thousand population and over and not more than fifteen thousand population.
The specific question you pose is whether the expenditure limitation imposed by SDCL 7-7-5 includes the compensation authorized in the first sentence of SDCL 7-7-3.
It is my opinion that the fifty dollars per month compensation required pursuant to SDCL 7-7-3 is separate and distinct from the salary or per diem permitted under SDCL 7-7-5. The phrase "in addition thereto" denotes something over and above a specified sum as opposed to being cumulative. The same analysis is applicable to the mileage allowance which is determined pursuant to SDCL 7-7-4 and 7-7-24.
I am fully aware of the fact that the fifty dollar per month compensation is, in substance, a basic salary to which may then be added a salary per diem at the discretion of the county commissioners. Further, it would be purely speculative for me to attempt to ascertain the legislative intent and purpose in establishing such a formula for compensating commissioners. However, in my opinion, the language of SDCL 7-7-3 is subject to only one literal interpretation. The phrase "either in per diem or monthly salary" in the first sentence of SDCL 7-7-3, makes reference to alternative methods available to the county commissioners to determine compensation, and is disjunctive from the fifty dollar compensation earlier provided in that section. Therefore, the expenditure limits of SDCL 7-7-5 are exclusive of the compensation provided for in SDCL 7-7-3. The answer to your question is "NO."
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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