September 15, 1983

Mr. Warren R. Neufeld 
Secretary 
Department of Water and Natural Resources 
Joe Foss Building 
Pierre, South Dakota 57501

Official Opinion No. 83-30

Authority of Secretary of Department of Water and Natural Resources to delegate power

Dear Secretary Neufeld:

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

FACTS: 

Expenditures from the Water Facilities Construction Fund authorized by the Omnibus Water Development Acts of 1982 (1982 Session Laws, ch. 316, section 9) and 1983 (1983 Session Laws, ch. 315, section 19) are paid on warrants drawn by the State Auditor on vouchers approved by the Secretary of the Department of Water and Natural Resources.  In the past, periodic absences by the Department Secretary have caused inefficiency and delay in the voucher approval process, a problem that could be solved by allowing the Secretary's designated subordinate to approve vouchers.

Based upon these facts you ask the following question:

QUESTION: 

May you, as Secretary of the Department of Water and Natural Resources, delegate to your designated subordinate the authority to sign vouchers issued under the authority of the Omnibus Water Development Acts of 1982 and 1983?

As Secretary of Water and Natural Resources you may, pursuant to SDCL 3-2-1 et seq., appoint a deputy to act for you.  See SDCL 3-2-2.  According to a  long-standing opinion of this office, 'the general rule is that he [the deputy] may do any act which his principal may do.'  1919-1920 AGR page 376.

The same opinion declares, as to the statutes which are the predecessors of the present statutes, that 'it would appear that this method of delegating authority is exclusive, and that the powers of a deputy may not be limited or restricted.'  1919-1920 AGR, supra at 377.

The opinion further finds unlawful an attempt of a county treasurer to delegate the power to write checks and sign other papers without compliance with these statutes.  The opinion thus takes the view that the authority to delegate such functions must be found in statute.

It is my opinion, consistent with that of my predecessor, that SDCL 3-2-1 et seq. supplies such authority and allows you to appoint a deputy who may, on qualifying under SDCL 3-2-3 and 4, sign vouchers submitted under the Omnibus Water Development Acts of 1982 and 1983.  My answer is therefore YES.

Respectfully submitted,

Mark V. Meierhenry
Attorney General