STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 11, 1969

John C. Penne
Auditor General
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-36

Failure of Legislature to appoint South Dakota Auditor General during 1969 Session did not create vacancy in such office which can be filled by Executive Board of the Legislative Research Council. SDC 1960 Supp. 55.2902 as last amended by Sec. 1, Chapter 205, Session Laws of 1968

Dear Mr. Penne:

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

"The Forty-Fourth Legislative Assembly of South Dakota, which adjourned, sine die, during March, 1969, failed to appoint a successor to the office of Auditor General upon the expiration of the term of the present incumbent of such office."

The question presented is:

"Is the office of Auditor General of South Dakota now vacant so that the Executive Board of the Legislative Research Council should make an appointment thereto to serve until the next Legislative Session?"

The answer to your question is found in the amendment of SDC 1960 Supp. 55.2902 as last amended by Section 1 of Chapter 205, Session Laws of 1968. By virtue of such legislative enactment it is provided that:

"The term of office of the Auditor General shall be eight years and until the appointment and qualification of his successor. Should the office be vacant when the Legislature is not in session, the Executive Board of the Legislative Research Council shall appoint an Auditor General to serve until the next Legislative Session and the appointment and qualification of his successor."

The statute makes it clear that the general appointment to such position is by the concurrent resolution of the two houses of the State Legislature. In view of the statutes, it is apparent that while your term of office as Auditor General may have terminated sometime during the 1969 Legislative Assembly by the passage of the requisite number of years, nevertheless you continue in office until the appointment and qualification of your successor. During such Forty-Fourth Legislative Assembly the two branches of the Legislative Branch of Government failed to enact a concurrent resolution appointing a new Auditor General. By its own enactment, in this situation you still continue to hold such office. You will hold such office until the Legislature appoints a successor, in the manner as it has directed, and such appointee qualifies therefor.

It is my opinion that you continue as Auditor General and therefore there is no vacancy at this time which may be filled by an interim appointment by the Executive Board of the Legislative Research Council.

Respectfully submitted,

Gordon Mydland
Attorney General