STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

January 20, 1969

Honorable Frank L. Farrar
Governor, State of South Dakota
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-2

Eligibility of member of legislature to appoint to civil office by Governor. Effect of election and failure to qualify upon right to appointment.

Dear Governor Farrar:

You have requested my official opinion in answer to these questions:

"1. May a member of the Legislature be appointed to a state office by the Governor during the term for which he was elected if he resigns from office as Senator or Representative?

"2. May a person elected as a member of the Legislature who does not qualify as a member of such body be appointed to a state office by the Governor during the term for which he was elected?"

Your questions raise the question of Section 12, Article III of the South Dakota Constitution which for the purposes of this opinion provide:

"No member of the legislature shall receive any civil appointment from the Governor, the Governor and the Senate, or from the legislature during the term for which he shall have been elected and all such appointments and all votes given for any such member for any such office or appointment shall be void;"

Question 1 and 2 may be considered together. These questions have been submitted to my predecessors and in two opinions reported in 1925-26 on page 275, in answer to inquiries of Governor Carl Gunderson, it was held that this section would prohibit the appointment of a member elected to the State Legislature, who qualified for such position, from being appointed to any civil office by the Governor, during his term as a legislator, and such prohibition against appointment could not be removed by resignation as a member of the legislative body. However, in the second opinion where the question was presented, "does this constitutional prohibition apply to a person elected as a member of the legislature who does not qualify as a member of that body?", the answer given was as follows:

"Section 12 of Article III of the State Constitution provides that a member of the legislature shall not receive a civil appointment from the Governor ‘during the term for which he shall have been elected,' and such appointments shall be void. The language of this section is not that a person elected as a member of the state legislature shall be ineligible to receive an appointment to a civil office, but it provides that a member of that body shall not receive a civil appointment during the term for which he was elected. The prohibition of this section of the Constitution is laid upon members of the legislature-not members-elect-but those who have taken the oath of office and qualified. A person elected to the legislature does not become a member until he has accepted the duties of the office and takes the appropriate oath. Until this event occurs, this section has no application." Smith v. Moore, 90 Ind. 294; United States v. Dietrich, 126 Fed 659, 15 Op A.G. 280. “I am therefore of the opinion that the prohibition referred to in the Constitution does not apply to members-elect who do not qualify."

The problem raised has been the subject of annotations appearing in 5 ALR 117 and 40 ALR 945. An examination of the cases therein cited, and thereafter cited by such publications, reveals that the courts are practically unanimous in agreeing with the opinion in regard to the first question. No cases therein cited can be found that either agree or disagree with the distinction made between a member or member-elect to the Legislature. An examination of the numerous later opinions of this office relative to civil appointments and also distinguishing between public offices and positions of public employment, have never questioned the opinion based on the factual situation presented by Question 2. It is of interest that no later opinion has ever approved of the same either.

In view of the length of time that this opinion of my predecessor has existed, without any challenge to its correctness, and with the lack of judicial precedent, it is my opinion that the same should be followed and affirmed. My answer to Question NO.1 is NO. Until the term of office of such legislative member expires, he is not eligible to appointment to a civil office by the Governor.

My answer to Question NO.2 is YES. Such person, although elected, and a "member-elect," by refusal to take his oath of office is not a member of the Legislature, and therefore not subject to the prohibition of the constitutional provision.

Respectfully submitted,

Gordon Mydland
Attorney General