January 4, 1977

Miss Alice Kundert 
State Auditor 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 77-1

Legislators' reimbursement of travel expenses during legislative session

Dear Miss Kundert:

You have requested an opinion from this office in regard to the following factual situation:

FACTS: 

In the last legislative session, SDCL 2-4-2 was amended to include, “In addition thereto each legislator shall receive reimbursement to be paid after the legislative session for actual mileage or its equivalent traveled to and from home not to exceed once each weekend during the regular legislative session, at state rates established by the board of finance.  . . .” 

Article III, Section 6, of the Constitution states “The terms of office of the members of the Legislature shall be two years; they shall receive for their services the salary fixed by law under the provisions of § 2 of article XXI of this Constitution, and five cents for every mile of necessary travel in going to and returning from the place of meeting of the Legislature on the most usual route.”

Based on the above facts, you ask:

QUESTIONS: 

1.  Is there a conflict between SDCL 2-4-2 as amended in 1976 and the Constitution? 

2.  May the State Auditor legally reimburse travel expenses incurred in traveling to and from home on weekends during the legislative session by legislators?

IN RE QUESTION NO. 1:

It does appear to me that there may be a conflict between SDCL 2-4-2 as amended in 1976 and the provisions of article III, section 6, of the state constitution.  It must be remembered, however, that it is not the role of this office to declare statutes unconstitutional.  Under our system of government, that role is one exclusively for the judicial branch of government.  Further, it is the law of this state that statutes are to be construed with a view of upholding their constitutionality, and it should not be presumed that the Legislature intended to violate the constitution in enacting any statute. McFarland v. Baron, 83 S.D. 639, 164 N.W.2d 607 (1969).  The law further states, in this regard, that no statute should be held to be unconstitutional unless its infraction of constitutional principles is so plain and palpable as to admit of no reasonable doubt.  Application of Nelson, 83 S.D. 611, 163 N.W.2d 533 (1968).

Although I believe there is a reasonable question about whether SDCL 2-4-2 conflicts with the provisions of article III, section 6, of the constitution, I cannot say that the conflict is so plain and palpable as to admit of no reasonable doubt.  Secondly, it is not the function of this office to declare statutes to be unconstitutional.

IN RE QUESTION NO. 2:

It is my opinion that in view of the answer to your first question, the State Auditor may properly reimburse travel expenses to legislators in the factual situation you present, according to the provisions of SDCL 2-4-2.

Respectfully submitted,

William J. Janklow
Attorney General

WJJ:DOC:jo