STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 5, 1974

Robert A. Mullally Commissioner of Personnel
Bureau of Personnel
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 74-26

Authority of Board of Finance to authorize payroll deductions

Dear Mr. Mullally:

You have asked for an official opinion as to whether or not SDCL 1-33 and 3-6 supersede SDCL 3-10-8, and thereby nullify recent Board of Finance actions allowing extended payroll deductions for state employees for union membership dues.

Three important statutes to construe in arriving at a decision of this question are SDCL 3-10-8, SDCL 1-33-9 and SDCL 3-6A-12.

SDCL 3-10-8, Payroll deductions authorized by officer or employee.- The state, subject to the approval of the state board of finance, and municipal corporations and other political subdivisions, subject to the approval of their governing boards, may authorize payroll deductions and withholding from wages of their officers and employees when authorized in writing by the officers or employees.

SDCL 1-33-9, Personnel bureau established-Constituent elements. -- There is hereby established the bureau of personnel as a division within the office of executive management as the only rulemaking and administrative authority in the area of personnel management for the executive branch of state government. The bureau shall consist of the personnel policy board, the commissioner of personnel and the employees thereof.

SDCL 3-6A-12, Personnel management functions of bureau.- The bureau of personnel shall, in the area of personnel management and under the direction and control of the commissioner of personnel, make rules and develop programs for and perform administrative functions of the following agencies:

(1) Merit system council

(2) Board of charities and corrections

(3) Board of regents

(4) State board of finance

(5) Public employees retirement board, and

(6) All other state departments, divisions, boards and commissions of the executive branch.

It is apparent that the crux of the issue you raise is whether or not "Personnel Management," as used in SDCL 1-33-9oand SDCL 3-6A-12 includes the payroll deductions authorized under SDCL 3-10-8. If personnel management does include such deductions, the effect would be to repeal by implication that section of SDCL 3-10-8 specifically authorizing the Board of Finance to approve such payroll deductions.

There is no doubt that implied repeal of a law by a later law containing inconsistent or repugnant language is not favored by the courts in South Dakota. State v. Christian, 177 N. W. 2d 271 (1970).

The fundamental rule of statutory constuction is to ascertain and give effect to the intention of the legislature. Repeals by implication are not favored and will be indulged only where there is a manifest and total repugnancy. If by any reasonable construction, both acts can stand, they should.

There is also a rule of statutory construction that provides that a general act is not to be construed to repeal a previous particular act unless the intent to repeal the previous legislation is clearly manifest. Hemmer v. U. S., 204 F. 898, 123 C.C.A. 194 (1912).

It is my opinion that SDCL 3-10-8 is a special or particular statute as opposed to SDCL 1-33-9 and 3-6A-12 which are general statutes. Consequently, it follows that unless the intent to repeal SDCL 3-10-8 is clearly present, the specific function of approving payroll deduction remains with the Board of Finance under SDCL 3-10-8, and not with the Bureau of Personnel. It is further my opinion that SDCL 3-10-8 has not been repealed and that with respect to the matter of approving payroll deductions, the recent action of the Board of Finance was a proper exercise of its legal authority.

Respectfully submitted,

Kermit A. Sande
Attorney General

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