STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July, 1974

Dr. Thomas Kilian, Secretary
Department of Education and Cultural Affairs
State Capitol Building

Pierre, South Dakota 57501

OFFICIAL OPINION NO. 74-43

Authority to appoint the State Superintendent of Public Instruction in 1975

Dear Dr. Kilian:

You have submitted the following factual situation:

Article IV, Section 7 of the South Dakota Constitution makes no mention of the Superintendent of Public Instruction as a constitutional officer and Article I V, Section 8 makes no exception of the Superintendent of Public Instruction as a constitutional officer.

Section 241 of the Executive Order No. 73-1, as it was printed on page 43 of the Session Laws of 1973 reads as follows:

The head of the Division of elementary and secondary education shall be the board of education, which, in addition to its prescribed statutory functions prior to the effective date of this order, shall exercise the administrative functions of the division. The board shall also have authority to appoint the superintendent of public instruction, who shall be responsible to the board, provided, however, that the superintendent of public instruction holding office on the effective date of this act shall be allowed to continue to serve his full term of office.

When this Act was allowed to become law as the result of no action by the 1973 Legislature to disallow it, Section 241 was divided into two parts and placed in different sections of the 1973 pocket parts of the South Dakota Compiled Laws.

The first part of Section 241 became SDCL 1-45-61, as follows:

The head of the division of elementary and secondary education shall be the board of education, which in addition to its prescribed functions prior to July 1, 1973, shall exercise the administrative functions of the division.

Cross-reference: Superintendent of Public Instruction, appointed by board, 13-1-2.1.

The second part of Section 241 was placed in SDCL 13-1-2.:

The board of education shall have the authority to appoint the superintendent of public instruction, who shall be responsible to the board.

There is a Commission note indicating that the incumbent Superintendent is to continue in office for his full term.

In addition, SDCL 1-32-6 states as follows:

Appointment and Removal of Division Directors-Qualifications for Positions-Unless otherwise provided by chapters 1-32 to 1-45, inclusive, division directors shall be appointed by the head of the department or bureau of which the division is a part, and shall be removable at the pleasure of the department or bureau head, provided, however, that both the appointment and removal of division directors shall be subject to approval by the Governor. Departments and bureaus shall submit for approval to the personnel policy board established under §3-6A-3, minimum qualifications for the division director positions within their departments or bureaus.

The power of the State Board of Education to appoint the State Superintendent does not appear in Chapters 1-32 to 1-48, inclusive, but in SDCL 13-1-2.1.

You have requested an opinion on the following specific questions:

1. Who does have the authority to appoint the Superintendent of Public Instruction?

2. Is the appointment of the Superintendent of Public Instruction subject to the prior approval of the Governor or to the confirmation of the Governor?

With reference to your question No. 1, it is my opinion that SDCL 13-1-2.1 is a specific statute while SDCL 1-32-6 is a general statute. There is a general principle of statutory construction that provides that where a general statute is inconsistent with a specific statute concerning some particular part thereof and effect cannot be reasonably given to both, the specific statute is to be read as an exception to the general statute (see 1967-68 AGR 11).

I t is my opinion that SDCL 13-1-2.1 is the controlling statute and therefore the answer to your specific question No. I is that the State Board of Education appoints the State Superintendent of Public Instruction after the present term expires January 7, 1975.

It is my opinion that the answer to your specific question No. 2 is no.

Respectfully submitted,

Kermit A. Sande
Attorney General

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