STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 6, 1975
Honorable Richard F. Kneip
Governor
State Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-102
Qualifications and tenure for appointment of the Secretary of Health
Dear Governor Kneip:
You have requested an official opinion on the following two questions of law:
Must the qualifications for appointment to the former position of State Health Officer be met in appointing a Secretary of Health; that is, must the Secretary of Health be a graduate of a school of medicine?
Are the appointment and tenure requirements provided for in SDCL 1-32-3 and Section 9, Article IV of the Constitution of the State of South Dakota the sole requirements for appointment and tenure of the Secretary of Health?
The qualifications for appointment to the former position of State Health Officer are set forth in SDCL 34-1-7:
The Governor, subject to the approval of the public health advisory committee shall appoint a state health officer, who shall serve at the pleasure of the Governor, who shall be a graduate of a regular school of medicine of recognized standing, who shall have special training and experience in public health administration and who shall be licensed to practice medicine in the state of South Dakota. He shall devote his full time to the performance of his duties and shall hold office for a period of five years until his successor is appointed and qualified. The state health officer shall be the administrative officer of the state department of health and shall act as secretary to the committee.
Section 27 of Executive Reorganization Order of 1974 purports to abolish the position of state health officer:
All functions of the state health officer…are hereby transferred to the secretary of the department of health ... and the position of state health officer is abolished.
The Executive Reorganization Order has the full force of law under Article IV, Section 8 of the Constitution of the State of South Dakota:
Except as to elected constitutional officers, the Governor may make such changes in the organization of offices, boards, commissions, agencies and instrumentalities, and in allocation of their functions, powers and duties, as he considers necessary for efficient administration. If such changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the Legislature within five legislative days after it convenes, and shall become effective, and shall have the force of law, within 90 days after submission, unless disapproved by a resolution concurred in by a majority of all members of either house.
Inherent in the power to change is the power to create and abolish:
CHANGE. As a noun. An alteration; a modification or addition; substitution of one thing for another. ... As a verb. Alter; cause to pass from one place to another; exchange; make different; put one thing in place of another; vacate. Black's Law Dictionary, Revised 4th Ed. p. 293.
Hence, the Governor was acting within the scope of his constitutional authority when he issued the Executive Reorganization Order abolishing the position of state health officer. Section 27 of the Executive Reorganization Order was compiled as part of SDCL 1-43-2:
The head of the department of health is the secretary of health. He shall administer all the functions of the former position of state health officer, created by chapter 34-1. (Emphasis added.)
The definition of "function" provided in SDCL 1-32-1(8) says nothing of qualifications or tenure. The issue thus becomes: Were the qualifications set forth in 34-1-7 expressly or impliedly repealed?
The abolition of the position of health officer can be construed as an express repeal of the statutory qualifications for that position. It is absurd to outline qualifications for a phantom position. Furthermore, the express transfer of functions only would indicate that the qualifications and tenure provisions of 34-1-7 have been abrogated by the reorganization scheme.
The laws which resulted from the Executive Reorganization Order clearly constitute an implied repeal of the statutory qualifications for the position of state health officer. The doctrine of implied repeal is summarized in 82 C.J.S. Statutes, §§ 292-293, pp. 498-500:
Where a later act covers the whole subject of earlier acts, embraces new provisions, and plainly shows that it was intended not only as a substitute for the earlier acts, but to cover the whole subject then considered ... and to prescribe the only rules with respect thereto, it operates as a repeal of all former statutes relating to such subject matter, even though it makes no reference to the earlier statutes. Posadas v. National City Bank of New York, Philippine Islands, 296 U.S. 497, 56 S.Ct. 349, 80 L.Ed. 351 (1936).
The revising statute is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and whatever is excluded therefrom shall be discarded.
That the reorganization was meant to be a comprehensive revision is clear. The language of SDCL 1-32-3 says that "each principal department secretary shall be appointed by the Governor with the consent of the senate ... pursuant to section 9, article IV of the state constitution." (Emphasis added.) The title of 1-32-3 is "Appointment and Tenure of Department Heads." The law was designed to deal with all department heads uniformly and comprehensively.
Therefore, applying the doctrine of implied repeal to the issues at hand, one must conclude that the comprehensive executive reorganization laws, which embrace the functions of the former office, but exclude the qualifications and tenure restrictions, control. The restrictions of 34-1-7 have been discarded.
The five-year tenure provision of SDCL 34-1-7 is irreconcilably repugnant to SDCL 1-32-3 and Article IV, Section 9 of the State Constitution. The Constitution calls for a term of office which "expires at the end of the term for which the Governor was elected, unless sooner removed by the Governor." Hence, it, too is impliedly repealed. Busby v. Riley, 6 S.D. 401,61 N.W. 164 (1894).
The position of State Health Officer was clearly abolished. Only its functions were transferred to the position of Secretary of Health created by Executive Order 73-1. Since the tenure and qualification restrictions of 34-1-7 were impliedly repealed by subsequent laws, the only remaining restrictions on the Governor's appointive powers are those of SDCL 1-32-3 and Article IV, Section 9 of the Constitution.
It is therefore my opinion that the qualifications for appointment to the former position of State Health Officer need not be met in appointing a Secretary of Health; that is, the Secretary of Health need not be a graduate of a school of medicine. It is also my opinion that the appointment and tenure requirements provided for in SDCL 1-32-3 and Article IV, Section 9 of the State Constitution are the sole requirements for appointment and tenure of the Secretary of Health.
This opinion shall not be construed as contradictory to Official Opinion No. 75-10.
The qualifications for Secretary of Agriculture outlined in SDCL 38-1-15 retained a binding effect after a type 2 reorganization transfer, since “SDCL 38-1-15 was not repealed or otherwise affected by Executive Order 73-1, which reorganized the executive branch of state government. The old existing departments were not automatically destroyed by this Executive Order 73-1." Official Opinion No. 75-10, p. 2.
The statutory qualifications for State Health Officer did not remain binding after reorganization, since the position of State Health Officer was completely abolished by executive order.
The difference between abolition and transfer is the basis for distinguishing the present opinion from Official Opinion No. 75-10. The two opinions are therefore consistent.
Respectfully submitted,
William Janklow
Attorney General
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