South Dakota Attorney General

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OFFICIAL OPINION NO. 71-03, Membership of the Board of Regents

STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

January 25, 1971

The Honorable Richard F. Kneip
Governor of the State of South Dakota
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 71-3

Membership of the Board of Regents

Dear Honorable Kneip:

You have requested my official opinion in regard to the following factual situation:

Harry D. Witt and Charles H. Burke were appointed and confirmed as members of the State Board of Regents. Their terms of office commenced January 1, 1965 and continued until January 1, 1971, or until their successors were appointed and qualified.

That by letter dated December 30, 1970, Governor Frank L. Farrar appointed Ronald Schmidt a member of the same board and by letter dated and filed on January 2, 197 I, Governor Farrar appointed Elvern Varilek as a member of such board. Such appointments were to succeed Witt and Burke subject to confirmation by the Senate. Their terms were for six years commencing on January 1, 1971.

On Tuesday, January 5, 1971, Richard F. Kneip was officially sworn in as Governor succeeding Governor Farrar, although prior to that time, on November 6, 1970, Mr. Kneip filed an oath of office as Governor which was filed with the Secretary of State on November 9, 1970.

That on January 11, 1971, Mr. Kneip as Governor notified the Secretary of State in writing that he withdrew the nominations of Varilek and Schmidt.

That on the first day of the 46th Legislative Assembly, January 18, 1971, the South Dakota Senate went into Executive Session and at such session proceeded to confirm the appointments of Elvern Varilek and Ronald Schmidt as members of the State Board of Regents.

While you have submitted several questions for my consideration, the important question you have submitted is embodied in the final question:

Ultimately, the question presented is: Who is presently entitled to sit as members of the Board of Regents?

Initially, may I advise, as did the Supreme Court of South Dakota in answer to your request for assistance in the present situation, there are rights of private individuals at stake under such factual situation, and these private individuals are not herein represented. I am able only to express my opinion in regard to the issues of law presented.

In the event that anyone or more of the affected private individuals (Messrs. Witt, Burke, Schmidt or Varilek) do not agree with my conclusions, the membership of such Board of Regents cannot be settled by this opinion, but rather such problem will have to be determined by a proper court of law, having jurisdiction to determine the proper membership on such board.

The State Board of Regents is a Constitutional Board. Section 3 of Article XIV of our Constitution provides for the same. As originally adopted, our Constitution provided for such Board of Regents in this language.

The state university, the agricultural college, the normal schools and all other educational institutions that may be sustained either wholly or in part by the State shall be under the control of a board of nine members, appointed by the governor and confirmed by the senate, to be designated the regents of education. They shall hold their office for six years, three retiring every second year.

In the General Election, November, 1896, the people amended this constitutional provision to read as follows:

The state university, the agricultural college, the normal schools and all other educational institutions that may be sustained either wholly or in part by the State shall be under the control of a board of five members appointed by the governor and confirmed by the senate under such rules and restrictions as the legislature shall provide. The legislature may increase the number of members to nine.

Thereafter, in the election of 1944, the people amended such provision to read as follows, and it is this constitutional provision that governs the Board of Regents at all material times referred to in this opinion.

The state university, the agricultural college, the school of mines and technology, the normal schools, a school for the deaf, a school for the blind, and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the governor and confirmed by the senate under such rules and restrictions as the legislature shall provide. The legislature may increase the number of members to nine. (As adopted November 1944, pursuant to Ch. 264 Laws of 1943.)

It is undisputed in the factual situation presented that consistent with SDCL 13-49-3, the terms of office of Harry D. Witt and Charles H. Burke, as members of the State Board of Regents were to continue until January 1, 1971, or until their successors were appointed and qualified.

In connection with the statutory provisions in regard to such Board of Regents, it is interesting to note that after the constitutional amendment approved in 1896, the Legislature, by Chapter 58 of the 1897 Session Laws, enacted a new comprehensive act concerning the Regents, and this 1897 Act, in the main, and with very little change in language or phraseology remains codified in SDCL 13-49.

SDCL 13-49-1 provides that members of the Board of Regents "shall be appointed by the Governor, by and with the consent of the Senate." This language has existed since the 1903 Code, if not from the 1896 enactment. At the same time the provisions of SDCL 13-49-4 and 13-49-5 dealing with the method for filling vacancies on the Board of Regents by Governor appointment has existed in similar language since 1896.

A review of such statutes, which implement the constitutional provision, make it apparent that the Legislature for over seventy years has distinguished between appointments to such Board of Regents made necessary by the expiration of the term of office of a prior appointee to such board, and the appointment of a member to the Board of Regents made necessary by the death, resignation, removal from the state or otherwise, which creates a vacancy in such Board of Regents. The rights and authorities of one appointed to fill a vacancy on the Board are different than one who is designated as an appointee to such Board, due to the expiration of a term of office.

In the factual situation presented, it is patent that these statements are true:

1. Schmidt and Varilek were not appointed by Governor Farrar to fill a vacancy in office; rather, they were appointed as successors in office because of the expiration of the term of office of Regents Burke and Witt.

2. The designation or appointment of Schmidt and Varilek alone was not sufficient to make either a de jure member of the Board of Regents. Both the Constitution and statutes require the "confirmation" or "assent" by the Senate to complete such appointment.

3. That at a time you were Governor of the state, and prior to the time the Senate acted upon the Farrar "appointments," you notified the Secretary of State of the withdrawal of such designated persons from consideration by the South Dakota Senate, as members of the State Board of Regents.

In my opinion, it is the legal effect, if any, of such withdrawal of such designated persons as members of the Board of Regents that raises the crucial question that must be answered before the ultimate question-who are members of the Board of Regents at this time may be solved.

It is this question-the effect of the withdrawal of designees for official boards-which has led the courts of the United States to develop two divergent lines of judicial precedent.

There are certain postulates that judicial authority agree upon. These are:

FIRST: The Office of Governor is a continuing one, irrespective of who may occupy such office. (This is settled in our state, see State ex rel Kreibs v. Halladay (1928) 52 SD 497,501,219 NW 125, 127.)

SECOND: When the law requires "confirmation" of an appointment, or that an appointment is made "by the Governor, by and with the consent of the Senate," the appointment by the Governor, alone, does not create a de jure officer.

THIRD: If the Senate "refuses to confirm" or "refuses to give advice and consent" such person designated by the Governor is neither a "de factor" nor a "de Jure" officer.

However, when the question of the right of either the original governor, or his successor in office, to withdraw the name of a person designated by the governor from consideration by the Senate, the divergent lines of judicial authority appear.

The one line holds that once the power of appointment is exercised by the Governor, the power is exhausted, even though the Senate has not acted to confirm such appointment, and the Governor (or his successor in office) has no power to withdraw such appointee from consideration. This line holds that the Governor is bound by his appointee un til the Senate acts and disapproves his appointee. Then, and only then, has the Governor the power to submit a new "appointee" for subsequent confirmation.

The other line arrives at the exact opposite conclusion. It is based upon the conclusion that the designation of a person by the Governor and the confirmation by the Senate together which creates a completed "appointment," and up until the Senate considers such "appointment," the Governor may withdraw and substitute a designated person for Senate consideration.

The divergent lines of authority were perhaps best summed up by the Arizona Court in McBride v. Osborn (1942) 59 Ariz. 321, 127 P 2d 134, 136, when it said:

If appointment by the Governor had had the effect of placing petitioner in the office of industrial commissioner, and authorizing him to perform its functions, there could be no question but that the proposition that the Governor had exhausted his power in making the appointment and could not withdraw it would apply. But we are unable to see wherein this could have any application a t all where the appointment does not have the effect of vesting the appointee with the office. It occurs to us that the language of the court in McChesney v. Sampson, supra (232 Ky 395, 23 SW 2d 587), that "in cases where the nomination must be confirmed before the officer can take office or exercise any of its functions, the power of removal is not involved and nominations may be changed at the will of the executive until title to the office is vested," states the law correctly.

The Arizona Court in the McBride case stated that the rule of law cited from Kentucky applied whether sending the name to the Senate amounts to an "appointment" or a "nomination." It further held that when the statute provided that members of the Industrial Commission were to "be appointed by the Governor, by and with the advice of the Senate," that the act of the Governor alone, be it considered a nomination or an appointment, would not entitle such appointee to the office. The approval of the Senate was just as necessary as the action of the executive to complete the appointment and to give the appointee any right whatever to take over the office and discharge its duties.

The Arizona Court placed reliance on an earlier case, McCall v. McCall, 51 Ariz. 237, 75 P 2d 696,699 for its conclusion. (In such case the question was raised as to the office of the State Livestock Sanitary Board, the Statutes requiring members to be appointed by the Governor, with the advice and consent of the Senate.) Quoting from such decision:

Under this statute, his power to appoint is in conjunction with the Senate. The two must concur. The governor cannot exercise the power alone. He may put into motion the joint power by first appointing the officer, but such appointment is ineffective until and unless ratified or confirmed by the Senate ...

It is my opinion that in view of the constitutional provision and the obvious distinction that the Legislature has made between filling vacancies on the Board of Regents, and making appointments to such constitutional boards, that the rule expressed by the Arizona cases cited is the proper rule. (See State ex rel Holmes v. Finnerup (1895) 7 SD 233, 64 NW 121.) Certainly, the appointment by Governor Farrar of Mr. Schmidt and Mr. Varilek to the State Board of Regents, alone, did not qualify either to membership on the Board of Regents. Qualification as a member of such Board could only be supplied by the confirmation of the appointment by the Senate, and the taking of the oath of office ..

Viewing the matter from the standpoint of Mr. Burke and Mr. Witt, whose terms of office were until January I, 1971, or until their successors were appointed and qualified, there is nothing offensive in this, as such holding over is to prevent an interruption of the public business, and is commonly in the interest of the general welfare (Re Opinion of the Justices, 275 Mass. 575, 175 NE 644). Such a provision was held to mean that a public officer continues in office until the commencement of his succesor's term of office. (Allen v. Lyons (1878) 45 Wis. 216. See also Curtis v. Kimball (1834) 12 Wend (NY) 275, and Hinds v. Doubleday (1839) 21 Wend (NY) 223.) From the standpoint of Burke and Witt, there can be no question that until the Governor "selects" and the Senate confirms such appointment, their successor in office is not "appointed" and cannot qualify. They are the incumbents on the State Board of Regents.

It may be felt that my opinion conflicts with the ruling laid down in State ex rel Kreibs v. Halladay, 52 SD 497,219 NW 125. The situation there presented to our court was vastly different than presented in the present matter. The facts showed that Governor Gunderson, during his term of office, appointed Halladay a member of the Board of Charities and Corrections, which appointment was confirmed by the Senate on January 7, 1927, at a time William Bulow was the elected and qualified successor to Mr. Gunderson as Governor. Thereafter, and on December 28, 1927, Governor Bulow appointed the relator Kreibs as a member of such Board on the theory there was a vacancy in office, and that Halladay was no longer a member of such Board. Our court, in summarizing such factual situation, on page 127 of the Northwestern Report stated:

In this case the appointment of Halladay remained in force until it was acted upon by the Senate. On January 7th, while it was still in force, the Senate confirmed it. The appointment thereupon became complete, Halladay qualified, and has ever since been discharging the duties of the office, and therefore no vacancy existed on December 28, 1927, at the time the attempted appointment of the relator was made.

Certainly, such factual situation presented in the Halladay case is different from the case here presented. In the Halladay case the attempted removal from office occurred after confirmation by the Senate; in the instant case the action to withdraw such names of designated appointees occurred prior to any action to confirm on the part of the Senate. Our Supreme Court did not rule on the question herein presented, although it intimated that it takes more than the Governor's "appointment" to the State Board of Regents for such appointment to become complete.

Meechem "The Law of Public Offices and Officers" is an old treatise on this subject, but it is an accepted authority. Section 114 of the 1890 edition of such work states as follows:

Where the power of appointment is absolute and the appointee has been determined upon, no further consent or approval is necessary and the formal evidence of the appointment, the commission, may issue at once. Where, however, the assent or confirmation of some other officer or body is required, the commission can issue or the appointment be complete only when such assent or confirmation is obtained. (People v. Bissell, 49 Calif. 407 is cited as authority for such statement.)

In either case the appointment becomes complete when the last act required of the appointing power is performed. (Citing State v. Barbour, 53 Conn. 76, 55 Am. Rep. 65, and other cases)

Section 124, citing authority, states:

Where the authority to make appointments is absolute, the appointing power is subject to no other condition or qualification than that it shall be exercised at the time, in the manner and to the extent prescribed by law, and that the appointee shall be eligible. Where, however, it can be exercised only by and with the consent and approval of the Senate or other similar body, its exercise has no effect unless such consent or approval be given.