STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 5, 1968

A. M. Schultz, Assistant Director
Purchasing and Printing
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-25

State Auditor’s requirement of private person furnishing labor for repair of state-owned vehicle is valid - SDC 55.1301; SDC 1960 Supp. 15.1302

Dear Mr. Schultz:

You have requested my official opinion based upon this situation.

"The State Travel Commission, in operating the motor vehicles under its jurisdiction, authorizes users of such vehicles to procure any item necessary to keep such vehicle in continued operation. Such necessary repairs to such vehicles in many instances require parts to be placed on such vehicle. Likewise, in many instances, there is a charge for labor, either in installing or replacing parts, or to make the vehicle operational.

"The State Auditor, under his regulations, authorizes the proper state official or employee to execute the perjury statement required by SDC 1960 Supp. 15.1302 when parts or materials are furnished. However, in those cases when labor is furnished, he requires that such perjury statement be completed by the appropriate persons furnishing such services."

Your inquiry, in view of this practice of the State Auditor, may be summarized as follows:

"May the State Auditor lawfully require private persons to execute the perjury statement for services rendered in such situation?"

It should be remembered that in considering the problem you have presented we may consider only the legality of such requirement, and the wisdom or practicality of such a requirement is not in question.

To answer such question, in addition to SDC 1960 Supp. 55.1302, consideration must also be given to SDC 55.1301 which in part states:

"All accounts and claims against the state, which shall be by law directed to be paid out of the treasury thereof, shall be presented to the State Auditor, who shall examine and adjust the same and, for the sums which shall be due from the state, shall issue warrants payable to the State Treasury . . ."

Both of these statutes have been on our statute books for many years, SDC 55.1301 having originated in Section 3 and 4 of Chapter 53 of the Session Laws of Dakota Territory of 1862-63. The "perjury statement" as contained in SDC 55.1302 originated in Chapter 135 of the Session Laws of 1899. (A comparison of the original statute with the present statute will reveal that other than adding "department," and certain exceptions thereto that the language is identical in both statutes.)

In an early case (Sawyer v. Mayhew (1897) 10 SD 18, 71 NW 141), our court. pointed out that the statute, now SDC 55.1301, requires the State Auditor to investigate and adjust every claim for expenses against the state before issuing a warrant drawn upon state funds. It also pointed out that in the absence of contrary statute, that the auditor may make and enforce rules which are reasonable and consistent with sound public policy.

This office consistently has held that notwithstanding a statute is passed authorizing another department head or state official to approve vouchers, that unless specifically provided differently by statute, that while the State Auditor should respect the determination of such other public official, the State Auditor must investigate such claim, and if he feels such to be unreasonable, or illegal, he should either reduce or reject such claim. 1907-08 AGR 207; 1911-12 AGH. 119; 1911-12 AGH. 578; 1913-14 AGR 35; and 1913-14 AGR 39. These opinions, to the effect that the final judge of the legality of the particular claim, is the State Auditor, in the absence of statute to the contrary, were approved by the court in Mitchell National Bank v. Jones (1929) 54 SD 285, 223 NW 54.

There can be no question that under SDC 55.1301 this requirement of the State Auditor is valid. The question is then presented, does the requirement of SDCL 960 Supp. 55.1302, which indisputably applies only to state officers, department heads and state employees, prevent the State Auditor from requiring a "perjury statement" from a private citizen furnishing services in connection with repairs to state vehicles?

It is my opinion that the answer to this question must be NO. The State Auditor, by statute, is required to pass upon the validity of such claim for services rendered, prior to drawing a warrant for the payment of such claim from state funds. If, in his opinion, for his own protection, such perjury statement is necessary, such does not seem contrary to public policy and an order to such effect is valid. However, it is also my opinion that SDC 1960 Supp. 55.1302 does not specifically require such a perjury statement by such vendors. (See SDC 1960 Supp. 55.2918,)

My answer to your specific question is YES.

Respectfully submitted,

Frank L. Farrar
Attorney General