STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

November 10, 1975

Mr. Thomas C. Todd
State Superintendent
Division of Elementary and
Secondary Education
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-187

Dates of payment of wages under teacher contracts

Dear Mr. Todd:

You have requested an opinion based on the following factual situation:

School District A negotiated employment contracts with teachers for the 1975-76 school year in April, 1975, and such contracts were executed prior to May 15, 1975. Pursuant to SDCL 13-43-6 such contracts specified the wages per month and that the first of twelve payments was to be paid on or about the first day of the school year. However, SDCL 13-18-3 prohibits payment of indebtedness not incurred prior to issuance of a warrant or check.

Based on the above factual situation you ask the following specific question:

Are teachers' contracts wage payments controlled by SDCL 13-18-3 in that must teachers render at least one month's services prior to receiving first monthly payment of wages under existing teachers' contract of employment?

The sections cited in your request read as follows:

13-43-6. The contract shall specify the date at or about which the school shall begin, the term of employment, the wages per month, and the time of payment thereof; such contract shall be signed in duplicate and one copy filed in the office of the business manager and the other retained by the teacher. Such contract may be issued covering any period of years, not to exceed three, over which a teacher holds a certificate which will remain valid without renewal.

13-18-3. No check or warrant shall be drawn by the business manager except for indebtedness incurred prior to its issue and upon the presentation of an itemized invoice, duly verified; and the same shall be retained by the business manager and placed on file in his office.

In construing the above statutes the doctrine of "in pari materia" must be applied. Thus, unless there is an inherent conflict full effect must be given to the provisions of each section.

It is my opinion that SDCL 13-43-6 and 13-18-3 are not conflicting or inconsistent. SDCL 13-18-3 makes unlawful the issuance of check prior to the time an indebtedness is incurred. By definition indebtedness is an obligation arising from a contract, express or implied, for which an action of debt will lie. Words and Phrases, Volume 20A, p. 463 et seq. Likewise a "debtor" is everyone who owes to another the performance of an obligation. (SDCL 2-14-2(8).)

The indebtedness in a teacher's employment contract is a direct result and consequence of the contract and attaches according to the conditions from the time said contract is entered into.

A teacher's contract of employment, entered into pursuant to SDCL 13-43 and containing provisions determining monthly wages and specifying the time of payment, obligates the teacher and the school district for the entire term of the agreement. I recognize that the nature of a teacher's employment is such that services are rendered and time spent other than during regular school hours and school days. Also, as part of the contract a teacher is obligated to make certain preparations prior to the opening day of classes. Likewise, the school district has obligated itself to pay for said services. The fact that wages are generally paid on a monthly basis does not negate the underlying legal obligations of both parties commencing with the date of the contract.

Therefore, it is my opinion that an employment contract, although executory in nature when entered into, must be considered as an indebtedness incurred at that time. The payment of first month's wages prior to the completion of at least one month of the school year does not violate the provisions of SDCL 13-18-3.

The answer to your question is NO.

Respectfully submitted,

William Janklow
Attorney General

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