June 23, 1976
Mr. Lyle Wendell, Secretary
Department of Revenue
Capitol Lake Plaza
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-65
Authority of deputy secretary of revenue
Dear Secretary Wendell:
You have requested my official opinion on the authority of the Deputy Secretary of Revenue under SDCL 10-1-15, to bind the Department of Revenue and the State in a discretionary matter, where the principal officer was neither absent nor disabled.
In the case you present, the then deputy took testimony and argument in a sales tax deficiency case, under SDCL 10-45-33, on February 26, 1975. On May 27, 1976, one day before his services were terminated, he issued, in his own name as deputy secretary, a "Memorandum Decision," in essence contrary to the position the Department had taken at the hearing and without the approval or knowledge of the Secretary of Revenue.
No findings or conclusions were issued and no orders as such signed.
SDCL 10-1-5, authorizes a deputy secretary. The powers of the principal, that is, the Secretary of Revenue, are statutory and include the determination of a correct amount of tax under SDCL 10-45-33. This power is vested in the department head alone.
It is the general rule that a deputy is usually invested with all the power and authority of the principal: Confiscation Cases, 20 Wall (U.S.) 92, 22 L.Ed. 320. Nevertheless, where the authority is derivative of the authority conferred on the principal and not inherent in the deputy, it must be exercised in the name of the principal and not in the name of him who has no recognized authority. Reinhart v. Lugo, 86 Cal. 395, 24 P. 1089.
SDCL 10-1-15, vests no inherent authority in the deputy secretary, except in the absence, or as the result of disability of the secretary. It is my opinion, therefore, that the purported action of the former deputy secretary was an action in his own name in an independent capacity and is not the decision of the department or its secretary. You could, of course, adopt and ratify such action if you so desire.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:dh
