STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

January 29, 1969

Miss Alice Kundert
State Auditor
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-6

Salaries of State Constitutional Officers and Public Utility Commissioners during first month of incumbency in office. (January salary must be divided between incoming and outgoing officers.)

Dear Miss Kundert:

You have requested my opinion in regard to the January 1969 salary of the newly elected Constitutional State Officers and the newly elected member of the Public Utility Commission.

The specific question presented is "do such newly elected and qualified state officers receive the full January 1969 salary for such office, or must such January 1969 salary be apportioned between the newly elected and qualified officer and his predecessor in office?"

The factual basis for such question arises because under the Constitution a newly elected state official enters upon his term of office commencing at 12:00 o'clock noon on the first Tuesday following the first Monday in the January following his election. (In 1969 such date being January 7, 1969'> Section 2 of Article XXI of our Constitution, prior to its amendment by the electorate in the general election of 1946, provided a fixed annual salary for such constitutional state officers. After such amendment authority was granted to the Legislature to fix such salaries.

As the Leislature has provided that such state officers are to receive a fixed "annual salary," payable in twelve equal monthly installments, your question has been answered by our Supreme Court in State ex rel Polley v. Anderson (1913) 31 SD 261, 140 NW 736.

Tersely stated in the Polley case the relator was elected to the Supreme Court of South Dakota and qualified as a member thereof on January 7, 1913. At such time the salary for the judges was an annual salary of $3000.00 payable in equal monthly installments of $250.00. In February, Judge Polley filed his voucher for $250.00 monthly salary for January, 1913 and upon refusal of the State Auditor to issue a state warrant, he commenced an original action in the Supreme Court seeking relief by a writ of mandamus. The Court, in an interesting decision, a copy of which I am forwarding for your files, held that during the first month of incumbency to such office, the relator was not entitled to the full monthly salary, but rather such must be apportioned between the newly elected and qualified judge and his predecessor in office.

This opinion has never been overruled by our Supreme Court. It was the basis for a similar conclusion that salaries of county officials must be apportioned during the first month of assuming office, between the incumbent and predecessor in office. (1933-34 AGR 338) Because of the similarity in language as to salaries and method of payment, this decision of our Court is obligatory on all state officials.

The teachings of the Polley case is that during his first month in office a state official who is entitled to an annual salary is not entitled to the full monthly salary represented by one-twelfth of the annual salary fixed by the Legislature. Rather, such monthly salary must be apportioned between the newly elected official and his predecessor in office, in the proportion that the predecessor occupies such office until the newly elected official qualifies for and assumes such office during such month. Of course, at the time such officer is succeeded in office, he will be entitled to the emoluments of such office for that portion of the month during which he serves until such successor qualifies for and assumes such office.

You can appreciate that the Legislature, consistent with the Constitution, could provide a fixed salary for the term of a state constitutional officer, and provide that such be paid in twenty-four equal installments. If such were so provided by the Legislature, each such officer would receive a fixed compensation for his services in office, and by proper language the apportionment of salary between an incumbent and his successor in office could be eliminated. As such has not been so provided by the Legislature, such apportionment must be had in those instances when a newly elected official succeeds another person in such office.

Respectfully submitted,

Gordon Mydland
Attorney General