STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
February 8, 1973
The Honorable Joseph Barnett
State Representative, South Dakota
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 73-04
Validity of Executive Order 73-1
Dear Mr. Barnett:
You have requested my official opinion in answer to the following question:
Is there any invalidity in Executive Order 73-1, and the changes involving executive reorganization affecting existing law set forth therein, by virtue of the fact that it is a single "executive order" as distinguished from the directive that: such reorganizational changes be set forth in "executive orders" as provided in Section 8, Article IV, of the South Dakota Constitution?
I am aware of the time and labor which went into the preparation of Executive Order 73-1; however, I am sworn to uphold the Constitution of this State. SDCL 3-1-5. Even though I support governmental reorganization, I must interpret the Constitution impartially. Therefore, it is my considered opinion that Executive Order 73-1 does not comply with Section 8 of Article IV of the Constitution of the State of South Dakota. Numerous sections of Executive Order 73-1 affect existing state statutes contrary to the provisions of Section 8 of Article IV which require that changes be set forth in executive orders.
Section 8 provides that the Governor may make such changes in the executive branch as he deems necessary for efficient administration. However, Section 8 also contains the following limitation:
"If such changes affect existing law, they shall be set forth in executive orders . . . ."
It is clear from the plural usage of the words "changes," "they," and "orders" that the people contemplated that "changes" which affect existing law must be set forth in executive "orders." To hold otherwise would thwart the clear intent of the people, the Constitutional Revision Commission, and the Legislature. Words are to be understood in their ordinary sense unless otherwise defined, SDCL 2-14-1, and are to be given their plain and accepted meaning, Jacobs v. Pyle, 52 S.D. 537, 219 N.W. 247 (1928).
The Constitutional Revision Commission implied in its recommendations submitted to the 1972 Legislature that each individual change which affects existing law should be subject to a legislative veto. The Commission stated: "The Commission believes that a valuable safeguard against improper reorganization is retained, since the Legislature can disapprove any changes proposed by the Governor." Recommendations of the Constitutional Revision Commission 29 (Dec. 15, 1971) (emphasis added).
It is significant that the Model State Constitution, from which South Dakota's Section 8 was taken, contains the following references:
"If such changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the Legislature while it is in session, and shall become effective, and shall have the force of law, sixty days after submission, or at the close of the session, whichever is sooner, unless disapproved by a resolution concurred in by a majority of all the members." Model State Constitution §5.06 at 71 (rev. ed 1968) (emphasis added).
The comments following the model provision indicate:
" ... when reorganization desired by the governor requires changes in law, the participation of the legislature is required to effectuate them-the changes may be set forth in executive orders to become effective 60 days after submission to the legislature unless they are specifically modified or disapproved by resolution concurred in by a majority of all the members." Model State Constitution §5.06 at 71-72 (rev. ed. 1968) (emphasis added).
Constitutional provisions similar to Section 8 of Article IV exist in other states. The Alaska Constitution, which is the basis for the Model State Constitution, contains the following provision:
"Where these changes require the force of law, they shall be set forth in executive orders." Alaska Const. Art. III, §23 (emphasis added).
In Alaska, changes in executive management by the Governor have been made in separate executive orders. For example, Executive Order No. 14, dated January 22, 1962, .transferred certain functions of the department of public works to the department of fish and game. On the same day, Executive Order No. 17 transferred certain duties, functions, and powers of the department of fish and game to the department of revenue. Executive Order No. 18, dated March 15, 1962 created a department of highways and vested it with certain duties, powers and responsibilities previously exercised by the department of public works. Executive Order No. 30, dated January 22, 1968, transferred administration of the Alaska Pioneer's Home from the Governor to the department of administration. It should be noted further that the Supreme Court of South Dakota admonished in its recent opinion: "One limit on the Governor's authority we repeat, is that if the changes affect
existing law, they shall be set forth in executive orders, which shall be submitted to the Legislature within five legislative days after it convenes, and shall become effective, and shall have the force of law, within ninety days after submission, unless disappproved by a resolution concurred in by a majority of all members of either house.' " In re Opinion of the Justices, No. 11250 (S.D. S. Ct., Jan. 15, 1973).
The people obviously intended each separate change in existing law to be embodied in separate executive orders. In this way, the Legislature can consider the various proposed changes objectively on their individual merits. Otherwise, an unpopular or unwise change could be included among several necessary or popular changes and "log-rolled" through the Legislature.
A close parallel exists in the field of ordinary legislation. Section 21 of Article III of the South Dakota Constitution provides that each legislative enactment shall embrace no more than one subject. The provision is designed to guard the Legislature and persons affected by the law against "log-rolling" legislation. State v. Morgan, 2 S.D. 32, 48 N.W. 314 (1891). The framers of the South Dakota Constitution sought to protect the people from surprise and imposition by requiring that the lawmakers vote separately on each change of law. In the same manner, the people provided a constitutional safeguard against gubernatorial "log-rolling" by requiring that changes which affect exisiting law be set forth in separate executive orders. The Constitution provides that either the Legislature or the Governor may reorganize the executive branch of state government. It is inconceivable that the people would permit the Governor to "log-roll" executive reorganization when the Legislature is prohibited from doing so.
Article II of the South Dakota Constitution provides for a separat10n of powers. This is the basis for our traditional checks and balances system of government. While the people have enlarged the Governor's powers in the area of executive reorganization, they have also preserved the checks and balances by reserving the veto power to the Legislature. In re Opinion of the Justices, No. 11250 (S.D. S. Ct., Jan. 15, 1973). The Model State Constitution provides that the Legislature can reject or modify the Governor's plan. The South Dakota amendment removed the power of modification from the Legislature and reserved only the power of rejection. To limit the Legislature's power solely to disapproval (or acceptance) of the entire plan, rather than separate consideration of the individual changes, would render the already limited system of checks and balances virtually meaningless.
While this is my considered official opinion, the question is of such import that it quite possibly should be adjudicated by a court of law. For the foregoing reasons, the answer to your question is, YES. Executive Order 73-1 is invalid because it does not comply with the requirements of the Constitution of the State of South Dakota.
Respectfully submitted,
Kermit A. Sande
Attorney General
