Could a South Dakota county judge who was statutorily authorized to engage in the private practice of law personally keep the statutory compensation paid by the county for representing an indigent criminal defendant, or did he have to turn the fees over to the county treasurer under SDC 48.0608?
Plain-English summary
A South Dakota county judge ("A") was, by statute, allowed to engage in the private practice of law alongside his judicial duties. A circuit judge appointed A to defend an indigent person accused of a felony. SDC 1960 Supp. 34.1901 authorized the county to pay reasonable fees to appointed counsel. The question reaching the AG was whether A could personally retain those fees, or whether SDC 48.0608 (and Article V, Section 30 of the constitution) required him to deposit them with the county treasurer.
SDC 48.0608 was the catch-all bar on double-dipping by county or state officers:
"No county or state officer for whose services a salary is provided by law shall receive any compensation for his services other than such salary. All fees received by him shall be paid into the county or state treasury, as the case may be, at the close of each calendar month..."
Article V, Section 30 of the South Dakota Constitution went further. It prohibited a county judge from receiving "any compensation, perquisite, or emoluments for or on account of his office in any form, whatsoever, except such salary."
The AG worked through the case law to draw a distinction. In Burns v. Board of County Commissioners (1917), the court held that a county judge could not personally keep fees earned as a member of the County Board of Insanity, because he served on the board only because of his office. In State v. Roddie (1900) and State ex rel McMaster v. Reeves (1921), by contrast, the court approved extra compensation for new and distinct duties the legislature could impose. Judge Whiting's concurrence in Hoyt v. Hughes County (1931) formalized the rule: an officer entitled to a salary can earn no additional compensation for duties within his official scope, but can keep separately authorized compensation for duties imposed outside that scope.
The AG also cited two prior AG opinions reaching the same result for analogous facts: a State's Attorney appointed to a county Insanity Board could keep his fees because he was appointed as a "respectable practicing attorney," not by virtue of his office (1905-1906 AGR 152-154; affirmed 1913-1914 AGR 618).
Applied to the county judge: his appointment as indigent defense counsel was not part of his judicial duties. The appointment came from a circuit judge, not from the county judge office itself. The work performed was that of a practicing attorney representing a criminal defendant, not judicial work. The fees were authorized by statute, but the work that earned them was distinct from the office. The constitutional bar therefore did not apply, and the SDC 48.0608 deposit requirement did not apply.
The AG also noted that SDC 48.0608's reference to "fees received" should be read as fees received by virtue of public office, not fees received from public funds for services performed outside official duties. That reading harmonized the statute with the constitution's "for or on account of his office" language and with the case law distinguishing official duties from extra duties.
Currency note
This opinion was issued in 1968 (approximate, based on the cited 1968 session law). Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota abolished the county judge office through the unified court system reform of the 1970s and 1980s; modern judges generally cannot engage in private practice. SDC 48.0608 has been recodified, and the constitutional provisions on judicial compensation have been amended. Any current question about a judge or other public officer keeping fees from an appointed task should be analyzed under current SDCL provisions and current Code of Judicial Conduct, not this opinion.
What the opinion meant at the time
For the county judge in question, the opinion confirmed he could deposit the indigent-defense check into his personal account rather than the county treasury. The AG explicitly said the constitutional and statutory bars did not reach this kind of separately authorized fee.
For other county judges who took court appointments to defend indigent persons, the opinion was a useful precedent. As long as the judge was statutorily allowed to practice law and the appointment came from outside the judge's own office, the fees were his to keep.
For the legislature, the opinion implicitly invited an examination of the policy. The AG noted that Chapter 115 of the 1966 Session Laws and Chapter 144 of the 1968 Session Laws (effective January 1, 1969) imposed specific limitations on indigent-defense compensation, suggesting the legislature was already paying attention. But the AG did not read those limitations as a general bar on county judges keeping fees.
For circuit judges making appointments, the opinion meant they could continue to appoint county judges to defend indigent persons without creating an awkward fee-deposit problem. That preserved a useful labor pool in counties with few practicing attorneys.
For private bar attorneys, the opinion meant they competed with county judges for indigent-defense appointments on level economic terms. A county judge taking an appointment was not appearing on a discount basis; he was paid the same statutory fee any private attorney would have been paid.
Common questions
Q: Is this opinion still good law?
A: No. South Dakota's unified court system reforms substantially restructured the judicial office, and modern judges generally cannot engage in private practice of law. The Code of Judicial Conduct also imposes ethics restrictions on extrajudicial activities and compensation. Any current question about a judge accepting compensation for non-judicial work should be analyzed under the current SDCL and the Code of Judicial Conduct, not under this 1968 opinion.
Q: What was the line between official duties and outside duties?
A: The AG drew it functionally. If the duty came with the office (the judge was on a board because he was the judge), compensation could not be retained. If the duty was separately imposed by a court appointment or legislative grant, and the work was outside the office's normal scope, compensation could be retained. The line was not always easy to draw, but appointed indigent defense was clearly outside judicial duties because the work was advocacy, not adjudication.
Q: Why did the constitution single out county judges?
A: Article V, Section 30 was a strong anti-corruption provision that prevented judges from monetizing their office. The drafters apparently saw judicial compensation as particularly susceptible to abuse if judges could collect fees from various sources beyond their salary. The AG read the provision narrowly to its purpose: blocking compensation flowing because of judicial status, not blocking outside compensation for outside professional work.
Q: Could a circuit judge defend an indigent person and keep the fee?
A: Almost certainly not, because circuit judges in 1968 generally could not engage in private practice. The opinion's reasoning depended on the county judge being statutorily authorized to practice law in addition to judicial duties. Without that statutory authority, the same compensation would be a circuit judge moonlighting, which would violate the constitution's "for or on account of his office" provision and the unwritten rule against engaging in private practice.
Q: What were Chapter 115 of 1966 and Chapter 144 of 1968?
A: The opinion identifies these as specific limitations on indigent defense compensation. The 1966 chapter set some limitation; the 1968 chapter set a further limitation, effective after January 1, 1969. The opinion does not detail the limits, but the implication is that the legislature was capping fees per case or per period. A county judge keeping fees would still have been subject to those caps.
Background and statutory framework
The opinion sits at the intersection of three constitutional and statutory traditions:
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Constitutional anti-emoluments: Article V, Section 30 of the South Dakota Constitution prohibits any compensation, perquisite, or emoluments for or on account of a county judge's office other than the salary. The provision was broader than a parallel anti-fee provision in Article XXI, which had been repealed by amendment, because Article V's "for or on account of his office" reached compensation linked to the office itself, not just to the duties.
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Statutory anti-double-dipping: SDC 48.0608 (descended from Chapter 65 of the 1891 Session Laws) required salaried county and state officers to deposit all fees received in the county or state treasury, with an exception for officers whose only compensation was fees rather than a salary.
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Right to engage in private practice: County judges were statutorily authorized to engage in the private practice of law. That made them members of the bar who happened to also hold judicial office, not just judges.
The AG's reconciliation of these traditions: the constitutional and statutory bars reached compensation flowing because of the office. Compensation flowing because of separate professional services, performed under separate authorization, was outside the bars. A county judge serving as appointed defense counsel was earning attorney fees, not judicial fees.
The case law had drawn the same line in other contexts. Burns held a county judge could not keep fees for serving on the County Board of Insanity because the appointment was by virtue of the office. Roddie and Reeves approved legislatively created extra duties for constitutional officers with separately authorized compensation. The 1905-06 AG opinion held a State's Attorney could keep Insanity Board fees because he was appointed as "a respectable practicing attorney," not because of his office. The county judge defense fees followed that line.
Citations and references
Constitutional provision:
- S.D. Const. art. V, § 30 (county judges; compensation)
Statutes and laws (as cited in the opinion):
- SDC 48.0608 (county and state officers; deposit of fees)
- SDC 1960 Supp. 34.1901 (compensation of appointed counsel for indigents)
- Chapter 115, Session Laws of 1966 (indigent defense compensation limitation)
- Chapter 144, Session Laws of 1968 (further limitation effective January 1, 1969)
Cases (as cited in the opinion):
- Burns v. Bd. of County Commissioners, 39 SD 426, 164 NW 1028 (1917)
- State v. Roddie, 12 SD 433, 81 NW 980 (1900)
- State ex rel McMaster v. Reeves, 44 SD 612, 184 NW 1007 (1921)
- Hoyt v. Hughes County, 32 SD 117, 142 NW 471 (1931) (concurring opinion of Judge Whiting)
Prior AG opinions:
- 1916-1917 AGR 522 (Roddie rationale applied to county officials)
- 1917-1918 AGR 419 (same)
- 1905-1906 AGR 152-154 (State's Attorney can keep Insanity Board fees as practicing attorney)
- 1913-1914 AGR 618 at 622-623 (same principle affirmed)
Source
Original opinion text
Countys. County Judge appointed attorney for indigent defendant in criminal action is entitled to keep and retain fees paid in pursuance to SDC 1960 Supp. 34.1901 (SDC 48.0608)
You have requested an official opinion based upon the following situation:
" 'A' a County Judge, who by statute is authorized to engage in the private practice of law, is appointed by a competent Circuit Judge to act as an attorney for an indigent defendant accused of and prosecuted for the commission of a felony."
The question submitted in view of such factual situation is as follows:
"May such County Judge, on the assumption there is no incompatibility with his official duties and acting as such attorney, receive the statutory compensation provided by SDC 1960 SUPP. 34.1901, and retain the same, or do the provisions of SDC 48.0608 apply so that he must, upon receipt of such fees, deposit the same with the County Treasurer?"
SDC 48.0608 (it appears that this statute originated in Section 1 of Chapter 65 of the Session Laws of 1891) provides:
"No county or state officer for whose services a salary is provided by law shall receive any compensation for his services other than such salary. All fees received by him shall be paid into the county or state treasury, as the case may be, at the close of each calendar month, or not later than the fifth day of the succeeding month. This section shall not be so construed as to affect in any manner any officer who receives no salary other than the fees paid for his services."
More fundamental, however, than this statute which has existed since statehood, is Section 30 of Article V of our Constitution which provides that no Judge of County Court shall receive any compensation, perquisite, or emoluments for or on account of his office in any form, whatsoever, except such salary (and in addition he may receive any fees as may be allowed under the land laws of the United States.)
The constitutional provision herein cited was interpreted by our Supreme Court in Burns v. Bd. of County Commissioners (1917) 39 SD 426, 164 NW 1028, when our Court was directly faced with answering the question: "May a County Judge, in addition to his salary, receive and retain for his own use fees for services while acting as a member of the County Board of Insanity?" (The Court in such opinion also pointed out that Sec. 2 of Article XXI of the Constitution as it then existed (such language has been removed by amendment) provided that all state constitutional officers shall receive "no fees or perquisites whatever for the performance of any duties connected with their office.")
The Court pointed out that the provisions of Sec. 30, Article V, are broader than those contained in Sec. 2, Article XXI, for the reason that such Section 30, not only forbade any extra compensation, not only for the duties of the office, but also extra compensation by reason of the office itself. The Court concluded that because the County Judge was a member of such Board of Insanity, because of his office, under the Constitution, he could not retain any fees paid as a member of such Board.
In State v. Roddie (1900) 12 SD 433, 81 NW 980, and State ex rel McMaster v. Reeves (1921) 44 SD 612, 184 NW 1007 our Court held there was no Constitutional restraint upon the Legislature from creating new positions, imposing such new and distinct duties from such office upon a Constitutional officer, and providing additional compensation for the same. (These were decided under Section 2 of Article XXI of the Constitution, heretofore referred to.)
In his Concurring Opinion, in Hoyt v. Hughes County (1931) 32 SD 117, 142 NW 471, Judge Whiting, most properly pointed out that it was fundamental that:
"No person occupying an official position for which the Legislature has prescribed a salary is entitled to compensation other than such salary, for the doing of those things included within the duties for which the salary is allowed; where a fee is allowed for the doing of an act, the officer is entitled to no other compensation for the doing of that particular act or service; no officer can recover any service coming within his official duties, for which no fee or salary has been provided, unless the Legislature has vested in some person or body authority to pay for such services."
Our Supreme Court has determined that the Roddie and Burns case are consistent one with another. It is my opinion that the cited decisions are all consistent and merely provide that when the Legislature provides a fee, or other compensation may be paid for the performance of certain duties, if such duties are not connected with the official duties of a particular office, and the duties are not placed upon a particular public officer by reason of his office (insofar at least as a judicial officer within the purview of Sec. 30, Article V of our Constitution) there is nothing evil, unconstitutional, or illegal for such public officer to keep such compensation for such extra duties as he has performed.
My predecessors have held that the rationale of the Roddie opinion applies to county officials, and if the Legislature creates a new and distinct office and places a county Constitutional officer in charge of such new office, that it is constitutionally proper for the Legislature to allow and award extra compensation for such extra services. See 1916-1917 AGR 522 and 1917-1918 AGR 419.
In principal, I believe my predecessor furnished the answer to your question in an opinion reported in 1905-1906 AGR 152-154, and affirmed in principle in 1913-1914 AGR 618 (on pages 622 and 623 thereof.)
In the 1905-1906 opinion, it was shown that Section 2806 of the Political Code of 1903, provided that the County Board of insanity consisted of the County Judge and two other members appointed by the County Commissioners. One of such members being a respectable practicing physician and the other a respectable practicing attorney. The statute also authorized certain fees and compensation for such board. The question was asked, if the State's Attorney is appointed a member of such Insanity Board, is it lawful for him to personally retain the fees for such services? My predecessor concluded that it was lawful for the State's Attorney to retain such fees. He stated it was apparent that the State's Attorney was not appointed to such Board, because of his official position, but his appointment is based upon being a "respectable practicing attorney." It was further found that the duties of such Insanity Board were not duties required to be performed as a part of his duties as State's Attorney, and the performance of such duties were not incompatible with the duties of State's Attorney (for in case of such incompatibility, the State's Attorney would be disqualified to so act). My predecessor concluded:
"It would appear to us that the duties which he performs are outside of the office (of State's Attorney), and he is therefore entitled to compensation as provided by the statute, the same as any practicing attorney would be who is appointed by the Board of County Commissioners."
In applying these court decisions and opinions to the question you have raised, it must be presumed that if there were any incompatibility between being County Judge and attorney for an indigent defendant in a criminal case, the Circuit Court itself would have refrained from such appointment. Likewise, it is apparent there is nothing within the normal duties of a County Judge requiring him to defend an indigent criminal. It also is patent that the appointment of counsel for such indigent was on the basis that "A" was an attorney at law, admitted to practice within the state and competent to be an effective counsel for the indigent, and not because "A" was the County Judge. Likewise, it is apparent that by virtue of SDC 1960 Supp. 34.1901 the Circuit Court was granted authority to require the county to pay for such services as an attorney from the public funds. Such authority was exercised. The County Judge, in such circumstance, may retain such attorney fees as awarded by the Court and paid by the county for himself.
It might be said that none of the above decisions of the Court or opinions of the Attorney General considered SDC 48.0608, or its previous statute. This may be true. However, it is my opinion that a consideration of the language of such statute, in light of the statements of our Court and this office, make it evident that such statute must be interpreted as concerned with fees received by virtue of the public office concerned. Such statute provides nothing more than does the Constitution.
Such fees a public officer receives (in this case the County Judge) that the statute states must be deposited with the County Treasurer, are fees received by virtue of such public office, and do not contemplate fees received from public funds, in pursuance to statute for services performed, not by virtue of such public office but for the performance of duties, not incompatible with and outside of and in addition to such official duties. Such statute as so construed is consistent with the opinions of the courts of South Dakota, and does not prevent the County Judge from personally retaining fees awarded him for defending an indigent defendant under a court appointment to so act in such capacity. See Chapter 115, Session Laws of 1966 for a specific limitation and Chapter 144, Session Laws of 1968 for a limitation, subsequent to January 1, 1969.