STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 30, 1974

E. B. Oleson, Director
Division of Vocational-Technical Education
Department of Education and Cultural Affairs
222 West Pleasant Drive
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 74-33

Executive Order No. 73-1 does not amend or repeal any sections of SDCL 13-39.

Dear Mr. Oleson:

You have submitted the following factual situation:

Section 245 of Executive Order No. 73-1 reads as follows:

The board of vocational education created by Ch. 37, SL 1965, being SDCL 13-39-1 et seq., except the vocational rehabilitation function provided by SDCL 13-40-2 which is transferred by section 75, is transferred by a type 3 transfer to the board of vocational education within the division of vocational education of the department of education and cultural affairs.

Section 249 of Executive Order 73-1 reads as follows:

The division of vocational education created by Ch. 37, SL 1965, as amended, being SDCL 13-39-1 et seq., is transferred by a type 3 transfer to the division of vocational education, department of education and cultural affairs.

You have requested an opinion on the following question:

Does a type 3 transfer as referred to in §§ 245 and 249 of Executive Order No. 73-1 repeal or amend any portion of Ch. 13-39, SDCL 1967?

Section 245 of Executive Order No. 73-1 was reworded by the Code Commission and now appears as SDCL 1-45-14 and SDCL 13-1-29.1 and these statutes now read as follows:

The board of vocational education shall perform all the functions of the former board of vocational education, created by Ch. 13-1, except the vocational rehabilitation function vested in the division of services to the visually and physically handicapped by § 1-36-9.

SDCL 13-1-29.1:

The board of vocational education created by § 13-1-29 is abolished, and all its functions shall be administered by the board of vocational education created by § 1-45-10, as provided by § 1-45-14.

Section 249 of Executive Order No. 73-1 was reworded by the Code Commission and now appears as SDCL 1-45-15 and SDCL 13-39-1.1 and these now read as follows:

SDCL 1-45-15:

The division of vocational education shall, under the direction and control of the state board of vocational education, perform all the functions of the former division of vocational education, created by Ch. 13-39.

SDCL 13-39-1.1:

The division of vocational education created by § 13-39-1 is abolished, and all its functions shall be administered by the division of vocational education created by § 1-45-4, as provided by § 1-45-14.

Sub-section (c) of Section 3 of Executive Order No. 73-1 reads as follows:

Under this order, a type 3 transfer means the abolishing of an existing department, board, commission, or agency and the transfer of all its functions, records, personnel, property, unexpended balances of appropriations, allocations or other funds to a principal department to be administered under the direction and control of the department head.

It is clear that there was no specific amendment or repeal of any sections of SDCL 13-39 by the Executive Order and only SDCL 13-39-1.1 was created by Executive Order No. 73-1. In 1967-68 AGR 376, the Attorney General said:

It is so well settled, that citation is superfluous, that courts loathe repeal by implication ...

In answer to your specific question, it is my opinion that Executive Order No. 73-1 did not amend or repeal any sections in SDCL 13-39.

Respectfully submitted,

Kermit A. Sande
Attorney General

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