STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 19, 1970

Dean Carsons, Chairman
South Dakota Wheat Commission
Box 549
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 70-21

"Actual expenses" incurred as used in SDCL 38-10-10, in referring to expenses of the South Dakota Wheat Commission means exactly what it says, and would be interpreted by an ordinary person. SDCL 38-10-10

Dear Mr. Carsons:

You have requested my official opinion to interpret the provisions of SDCL 38-10-10, which reads as follows:

"Members of the wheat commission shall receive no salary, but shall be paid a per diem of ten dollars for each day they are actually and necessarily engaged in the transaction of business together with their actual expenses incurred while on official business."

Specifically, your request is aimed at the final phrase of such section, and you ask what constitutes "actual expenses" within the meaning of this statute.

SDCL 38-10, which is derived from Chapter 11 of the Session Laws of 1961, sets up the statutory regulation for the South Dakota Wheat Commission. SDCL 38-10-22 provides for the assessment and collection of a "promotional fee" of three mills per bushel upon all wheat harvested in South Dakota and sold through commercial channels. SDCL 38-10-23 provides for an exemption from such fee on sales to the Federal Government, and SDCL 38-10-34 provides for the procedure to claim a refund of such fee when paid. SDCL 38-10-35 provides:

"All moneys received by the wheat commission from fees assessed in Section 38-10-22, shall be deposited in such banks as the commission may designate and shall be disbursed by order of the commission by checks executed by the director and treasurer. The books, records, and accounts of said commission shall be audited annually by the state department of audits and accounts, with the cost of such audit to be paid from the funds of said commission."

To my knowledge no appropriation of general funds of the state is made to the South Dakota Wheat Commission. Its funds are received from the promotional fee assessed and levied, as above stated, and SDCL 38-10-35 authorizes the use of such funds, which are not required to be deposited in the state treasury, but in a bank or banks of the Commission's choice, as directed by the order of such Commission.

SDCL 38-10-10 authorizes the payment of actual expenses of the Commission members which are incurred while on official business. The only source of such payment is the disbursal from such funds of the Commission as authorized by SDCL 38-10-35.

I am aware that SDCL 3-9-2 permits the State Board of Finance to fix the maximum amount which may be reimbursable for state officers and employees in the performance of their duties. It should be pointed out that this authorization originated in Chapter 258 of the Session Laws of 1949, and following the usual rules of statutory construction, the legislative authorization of the use of moneys under the control of the Wheat Commission for the payment of "actual expenses" incurred while on official business creates an exception to this general rule. It is also my opinion that the provision of SDCL 3-9-2 is not applicable to a commission created by the Legislature and which is limited to sustaining itself from the proceeds of certain fees that such commission is authorized by law to collect from one particular segment of the state's economy. When the Legislature directs that such commission must "live within its income," and at the same time appropriates the fees so collected for the necessary work of such commission, at the discretion of such commission, then the Legislature, in their discretion and wisdom, has authorized the commission itself to determine the extent to which it will authorize or reimburse the necessary and actual expenses in the transaction of official business.

In summary, it is my opinion that the term "actual expenses incurred" as used in SDCL 38-10-10 means exactly what it, says, and what the ordinary person would interpret it to mean. It means the "real" or "positive" expenses incurred, for which proof as to verity may be produced, if necessary, in order to show the truthfulness of such claim. This term does not refer to the arbitrarily selected maximum amounts as fixed by the Board of Finance, for the reimbursement of a state employee or officer in performing his duties. These fixed maximum amounts cannot and do not refer to the actuality or reality of any given situation, but rather are maximum limitations placed generally upon all situations of travel in the line of duty by a state officer or employee subject to such limitations upon reimbursement.

I am hopeful this explanation and interpretation of the term "actual expenses incurred" as used in SDCL 38-10-10 is of use to you and your Commission.

Respectfully submitted,

Gordon Mydland
Attorney General