STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

March 9, 1971

Ray Kalkbrenner, Secretary
South Dakota Brand Board
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 71-9

Brand Board member no longer qualified to hold office after moving from livestock inspection area.

Dear Mr. Kalkbrenner:

You have requested my official opinion on the following factual situation:

A member of the current South Dakota Brand Board, who qualified under the provisions of SDCL 40-18-2, at the time of his appointment, has since disposed of his ranch and livestock interests in a county inside the livestock ownership inspection area and moved his place of residence to a county outside that area. Is such member eligible to remain a member of the state brand board?

The applicable statutory provision is SDCL 40-18-2, which provides:

All members of the state brand board appointed by the governor shall be active and practical cattlemen engaged in the cattle business in the livestock ownership inspection area provided for in Sec. 40-2-1 to 40-2-3, inclusive. Only persons residing in the livestock ownership area, who are owners of brands, duly recorded in the office of the state brand board, and whose principal business and occupation is the raising of livestock within such livestock ownership inspection area, shall be eligible for appointment as members of said board. No appointed member may act as a member of the board while he holds an elective or appointive state or federal office.

This section lists the sole qualifications for appointment to the State Brand Board. To qualify and be eligible for appointment to said Brand Board, the candidate for appointment must meet all of the criteria set forth above. There is no apparent question that the board member under discussion met these requirements at the time of his original appointment to the Board.

There is little doubt that a member of the State Brand Board is a public officer, and a public office holder has no contract rights or vested rights to public office. Molinaro v. Driver, 111 NW 2d 50 (Mich. 1961). The Legislature which creates a public office has the exclusive right, absent a constitutional provision, to rename, provide new qualifications for, or increase salary to, or apparently even abolish, an office. State ex rel Maloney v. Wells, 112 NW 2d 601 (SD 1962).

A public officer enjoys a privilege which is revocable by the sovereignty at will. Crenshaw v. U.S., 10 S.Ct. 431,134 U.S. 99, 33 Led 825; Parker v. Board of Ed. Prince Georges County, 237 F.Supp. 111, affd. C.A., 348 F 2d 464, cert. den. 86 S.Ct. 643, 382 U.S. 1030, 15 L ed 2d 543, reh. den. 86 S.Ct. 1071, 383 U.S. 939, 15 L ed 2d 857. If the privilege is revocable at will, it follows that the qualifications for holding office are also subject to the will of the sovereign (or legislature) and it is immaterial as to when these qualifications are determined.

There seems little question that if the legislature had changed the boundaries of the livestock ownership inspection area to exclude the residence and holdings of the member in question, he would have the right to retain his position until the expiration of his term. See 1965-66 AGR 323 and the cases cited therein. This is necessary so that the legislature may not arbitrarily put an office holder out of his office by changing the geographic boundaries of a district or other division, and to insure that elected officials continue to hold the office to which they have been elected by the people. To hold otherwise would give the legislature the right of veto over the decisions of the voters. This, however, is not the situation we have here. Here, the member removed himself from the geographic boundaries within which he must reside to be eligible for the office he holds, as well as removing other qualifications listed in the statute such as disposing of his "principal business and occupation" of raising livestock within the livestock ownership inspection area.

The remaining question then is whether or not the fact that a member is eligible and qualified at the time of appointment makes him eligible to continue in office no matter how many changes he precipitates during his tenure. It is often said that eligibility to public office is of a continuing nature and must exist at the commencement of the term and during the occupancy of the office. See 88 ALR 828. The fact that a candidate for a public office may have been qualified at the time of his appointment or election is not sufficient to entitle him to hold office, if at the time of the commencement of the term or during the continuance of the incumbency he ceases to be qualified. See 42 Am. JI. Public Officers, Sec.41. Such qualifications are personal and continuing and a reasonable interpretation of such statutes controlling requires the conclusion that the existence of such qualification(s) cannot be limited merely to the time of election or appointment, but must subsist at the time of taking office and during the continuation of such occupancy. State ex rel Fugina v. Pierce, 209 NW 693 (Wis. 1926).

There is the added consideration of the purpose and intent of the legislature in creating the State Brand Board and spelling out the qualification for membership thereon. It seems obvious from a fair reading of the section that the legislature intended that the members of the Board should be "active and practical cattlemen "engaged in die cattle business in the livestock ownership inspection area .... " The member in question here no longer fulfills that qualification. The intent of the legislature apparently was that all members of the Board be those actively engaged in the areas affected by the acts of the Board, to hopefully bring to the Board the benefit of their day-to-day experience in their business, and to take advantage of their peculiar knowledge and expertise.

It might be argued that the member in question here still possesses many of these qualities. However, this is not the same. If the issue involved a member who moved to the southeast corner of the state and took employment in Iowa, would he still be considered qualified and eligible for membership on the Board? Or if a member removed himself from the state, would he still be qualified and eligible? When specific qualifications are spelled out by the legislature such as those here, the meeting of those qualifications must not be one of degree as to how far the member removed himself from the inspection area, but simply whether he did in fact do so.

Based upon all of the foregoing, the answer to your question must be NO.

Respectfully submitted,

Gordon Mydland
Attorney General