December 9, 1976
Mr. Eldon Stoehr
Auditor General
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-117
Annual reports required of state agencies
Dear Mr. Stoehr:
You have requested an opinion based on the following factual situation:
FACTS:
SDCL 51-16-31 requires the Division of Banking and Finance to make a biennial report to the Governor which gives comprehensive information on every bank doing business in the state. The Division stopped issuing this report subsequent to 1970. The reason for the discontinuance of the report was two-fold: (1) The high cost of printing the report and, (2) a 1971 amendment to SDCL 1-28-6 which stated that all other statutes specifying the material and content of a report were superseded by 1-28-6.
In addition to the above facts, we found an annual report law passed subsequent to the passage and amendment of SDCL 1-28-6. SDCL 20-13-53, enacted in 1972, requires the Human Rights Commission to make an annual report to the Governor of its proceedings, hearings and outcomes thereof, investigations and other work performed by it.
The questions you ask are:
QUESTION NO.1:
Should the Division of Banking and Finance make its biennial report as required by SDCL 51-16-31, or is this law superseded by SDCL 1-28-6?
QUESTION NO.2:
Are annual and/or biennial report laws, such as SDCL 20-13-53, which were passed subsequent to the 1971 amendment of SDCL 1-28-6 nevertheless superseded by it?
The statutes referenced in your factual situation provide:
1-28-6. The bureau shall determine the material and content for all reports. Every reporting state agency shall be required to make the same in the most condensed form, giving only such information as is necessary to disclose fully the transactions and conduct of such, during the period covered by such report. The provisions of this section shall supersede all other statutes specifying the material and content of a report.
20-13-53. The commission shall have the power and duty to prepare and transmit to the Governor before June thirtieth of each year a report describing its proceedings, investigations, hearings conducted and the outcome thereof, decisions rendered, and the other work performed by the commission.
51-16-31. The department of commerce and consumer affairs and the director shall make a biennial report to the Governor containing a statement of the condition of every bank doing business in this state, giving a tabulated statement of the resources and liabilities of each. It shall show the last statement of every bank whose business has been closed during the period, the amount paid to the creditors of any and all insolvent banks in liquidation during such period, a list of the banks organized and discontinued during the period, the names of the directors of each bank as last reported, together with a list of their stockholders with their post office addresses and the amount of stock held by each, the names and compensation of all persons employed in the division, together with the whole amount of the expenses of the division during the period, and such other information as the department or the director may wish to include.
IN RE QUESTION NO.1:
In Official Opinion 72-41 the same question was answered as follows:
To harmonize these conflicting laws, it is my opinion that if an agency is required to make a biennial report covering the same subject matter as is required by Ch. 1-28, as amended, said chapter shall take precedence and the agency shall make only annual reports. If the agency is, however, required to make biennial reports which have contents substantially different from that required by Ch. 1-28, the agency shall be required to make both types of reports, one annually and one biennially.
I would agree with that result except for the fact that SDCL 1-28-6, and specifically the last sentence thereof, appears to have been ignored. That statute and its intent are very clear and unambiguous and, in my opinion, must be literally interpreted. The result is, of course, that the Bureau of Administration determines the content of all official reports, including the "biennial report" required pursuant to SDCL 51-16-31, required by law to be made annually to the Governor. To the extent that the content of the report required by the Bureau is less comprehensive than that specified in SDCL 51-16-31, the latter is effectively repealed. Several of the rather obvious reasons for SDCL 1-28-6, as amended, would seem. to be (1) to provide a uniform reporting system for all agencies, and (2) to reduce the publication costs of the annual report by requiring condensed agency reports rather than the more elaborate report such as is required by SDCL 51-16-31.
If such was not the intent of the Legislature, SDCL 1-28-6 should be amended to effectuate the desired intent. The answer to your question is NO. The Division of Banking and Finance need not make a biennial report.
IN RE QUESTION NO.2:
In my opinion the report required by SDCL 20-13-53 must be submitted. There are several reasons why I reach that decision, even though it may be impractical and unrealistic. First, SDCL 20-13-53 is a specific provision not only with regard to the content of the report but also as to the date of transmittal to the Governor. That date, June thirtieth, does not coincide with the filing deadline in SDCL 1-28-2 (i.e., September 1). Is is a well established rule of statutory construction that a specific statute in conflict with a general provision shall prevail and shall be construed as an exception to the general provision, unless the general provision was enacted later and there is a manifest legislative intent that the general provision shall prevail. State v. Hagge, 224 N.W. 2d 560 (1974).
Second, it must be presumed that the 1972 Legislature, in enacting SDCL 20-13-53, was aware of the provisions of SDCL 1-28-6. I do not think this office would be justified in concluding that SDCL 20-13-53 is meaningless and of no effect. Again, this is a matter for the Legislature to clarify. The answer to your second question is NO.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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