STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 19, 1972

Jack Allmon, Director
South Dakota Department of Highways
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 72-26

Compensation of the Division of Highway Patrol is not within the ten percent limitation contained in SDCL 31-2-14.

Dear Mr. Allmon:

You have requested my official opinion to interpret the limitations of expenditures as provided in SDCL 31-2-14. Specifically, the question you ask is whether or not the 10% limitations as therein contained includes appropriations for operating the South Dakota Highway Patrol.

As a basis for answering your question, certain constitutional provisions and statutory provisions must be considered.

Sec. 8 of Article XI of the South Dakota Constitution provides for the exclusive use of the proceeds of certain fees and charges imposed by legislative enactment. This usage, except for the costs of administration, is the maintenance, construction and supervision of highways and bridges of this state. This constitutional provision has been implemented by various statutory enactments of the Legislature.

We need not examine all of such legislative enactments to answer your questions. Some of these should be set forth in full in this opinion.

The South Dakota Highway Patrol receives compensation for services as provided in SDCL 32-2-10 and 32-2-11.

32-2-10 - The compensation of each of the agents, patrolmen, and employees of the division of highway patrol shall be fixed by the superintendent, subject to the approval of the state highway commission.

32-2-11 - Compensation fixed under § 32-2-10 and expenses incurred by agents, patrolmen, and employees of the division of highway patrol, and the salary of the superintendent, shall be paid by the state highway commission out of the state highway fund, and such payments shall be made upon vouchers properly executed and presented in the manner prescribed by law for payment of expenses incurred in the office of such commission.

SDCL 31-2-14, which must be interpreted, reads as follows:

The salaries of the state highway commissioners, secretary of the commission, attorney, engineer, deputies, assistants, and employees, their necessary expenses, and the expenses of maintaining the office of the commission shall be paid by the state treasurer from the state highway fund after the same have been duly audited by the state auditor. So much of such state highway funds as is necessary for such purposes is hereby annually appropriated from said state highway funds for such purposes, provided however, that the amount of said funds expended for administrative purposes shall not exceed ten percent of the state highway funds available.

There is little question that the superintendent of the highway patrol is an appointee of, and operates under the supervision of the State Highway Commission. (SDCL 32-2-1) The appointment of the employees of such patrol is made by the superintendent. (SDCL 32-2-3) However, such persons are members of the "Division of Highway Patrol." See SDCL 32-2-4 through 32-2-12) This to me seems most significant.

The enumeration of who is to be compensated from the State Highway fund, and the ten percent limitations on the use of highway funds under SDCL 31-2-14, refers to the "office of the State Highway Commission," and the expenditures of funds for "administrative purposes" of such office. The highway patrol is a "division" of the State Highway Department. It is not as such a part of the "office of the State Highway Commission .. "

It is my opinion that the expenditures from the state highway funds to compensate the members of the "Division of Highway Patrol," as authorized by SDCL 32-2-11, is not subject to the ten percent limitations as contained in SDCL 32-2-14.

Respectfully submitted,

Gordon Mydland
Attorney General