STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

November 17, 1975

Mr. Thomas R. Vickerman, Code Counsel
Legislative Research Council
and
Mrs. Lorna B. Herseth, Secretary of State
State Capitol Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-188

Distribution of Administrative Rules

Dear Mr. Vickerman and Mrs. Herseth:

You have asked for an Attorney General's Opinion on the following factual situation:

The South Dakota Code Commission has published the Administrative Rules of 1974 pursuant to SDCL 1-26A-l (1975 pocket supplement). Prior to 1975, the authority set forth in that section was contained in SDCL 1-26-9. The Code Commission transferred the section to the new chapter 1-26A, pursuant to its authority contained in SDCL 1-26-9.

A question has come to my attention regarding the distribution of these publications. SDCL 1-26-12 provides:

1-26-12. Publications authorized under this chapter shall upon request be made available to agencies and officials of this state free of charge and to other persons at prices fixed by the secretary of state to cover mailing and publication costs. The provisions of § 1-8-10 except as to certification shall not apply to copies of publications distributed by the secretary of state under this chapter. (Emphasis supplied.)

In connection with this factual situation, you have asked the following question:

May the 1974 Administrative Rules of South Dakota be distributed free of charge to state officers and agencies?

The statutory law of the State of South Dakota is found in the Code, the official compilation, and the Session Laws. The Code at this time, consists (generally) of the parent volumes of SDCL plus the 1974 pocket parts. See SDCL 2-16-13, as amended in 1975. The Code is the law of the State of South Dakota unless later amended by the Legislature, 1943-44 AGR 392. Such amendments will appear in the Session Laws and in the official compilations. Our existing Code has been amended by the 1975 Legislature. The bills passed by the 1975 session of the Legislature are contained in the 1975 Session Laws and the 1975 pocket supplements to the Code. The Session Laws are a reprint of the bills, word for word, as passed. The compilation (1975 pocket parts to the Code) arranges and classifies the various bills passed, in order to bring the various subject matter together in convenient form.

In South Dakota, it is the Code Commission's statutory duty to make changes to the Code when it prepares the official compilation, in order to correct errors, integrate and harmonize the various laws, eliminate and clarify obsolete and ambiguous sections, and substitute new names, in order to provide consistency in the law. SDCL 2-16-9. This is necessary so that when the compilation is later adopted as part of the Code, by the Legislature, the Code will be internally consistent. However, when there is a conflict between the Session Laws and the compilation, it is the original law (contained in our Session Laws) which continues to exist. Martin v. State, 75 Ga.App. 807,44 S.E. 2d 562 (1947).

Therefore, it is my opinion that the authority given to the Code Commission to publish the Administrative Rules is officially contained in SDCL 1-26-9 and not in 1-26A-1. Since the rules publication was, therefore, authorized by chapter 1-26, SDCL 1-26-12 is applicable and the distribution of the rules publication should be made available to agencies and officials of the state free of charge.

This opinion should not be construed as a requirement that the Session Laws be used instead of the current pocket parts to the Code. SDCL 2-16-12 provides:

2-16-12. Upon the certification of any supplement of said compilation by the South Dakota code commission, as herein authorized and directed, such supplement shall be in force. Printed copies thereof and of the compilation certified by the former statute compilation commission shall be received, recognized, referred to and used in all the courts and in all departments and offices of the state as the official compilation of the statutory law of South Dakota, and may be cited as the South Dakota Compiled Laws of 1967.

Therefore, I encourage the use of the 1975 pocket parts. It is only where there is a conflict between the pocket parts and the Session Laws that the latter should be used.

The question has also been raised by the Secretary of State as to whether or not state agencies and offices can be refunded money which they have paid for copies of these ARSD volumes, while under the belief that payment was properly required. A problem presented here, of course, is that these payments for the ARSD volumes were ultimately deposited in the state general fund. The principal of law has long been established that an "appropriation" from the Legislature is necessary to authorize the expenditure of money out of the state general fund. Art. II, § 9 of the Constitution of South Dakota, SDCL 4-8-1.

The question has also been raised as to whether or not the expenditure correction procedures of the budgetary accounting system would possibly be a workable procedure in this situation to enable a refund to those state agencies that have purchased ARSD volumes. It is my judgment in this regard that the expenditure correction procedures will not work here and that refunds for agencies who bought the ARSD publications are not required nor possible apart from additional legislative action.

The primary reason for reaching this conclusion in regard to the expenditure correction procedure is that there is no way the expenditure correction procedure can substitute itself for an appropriation of the Legislature. In most expenditure correction situations there is more than one agency fund available with expenditure authorization levels than can be utilized or "corrected." In the present situation, there is not this flexibility since the state general fund is involved and as such there is no normal expenditure authority on one side of an expenditure correction procedure.

The result of the above, together with the realization that neither the Code Counsel nor the Secretary of State is budgeted for any expenditure correction decreases in expenditure authorization, leads me to conclude that refunds by the Secretary of State or Code Counsel to agencies who purchase the ARSD publications would not be in order.

Respectfully submitted,

William Janklow
Attorney General

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