The 1972 Legislature passed three acts (Chapters 38, 39, 44) raising salaries for elected county officials including treasurers, auditors, clerks of courts, registers of deeds, states attorneys, and sheriffs. The acts did not specify an effective date. The state Constitution said compensation of public officers could not be 'increased or decreased during his term.' Did the new salary acts take effect July 1, 1972 (the default date for legislation without a specified date), or did they have to wait until each official's next term started in 1973?

Plain-English summary

The 1972 South Dakota Legislature passed three salary acts for county elected officials:
- Chapter 38 raised salaries for county treasurers, auditors, clerks of courts, and registers of deeds.
- Chapter 39 raised states attorneys' salaries.
- Chapter 44 raised sheriffs' salaries.

None of the three acts specified an effective date in its text. The legislators had presumed the default rule in SDCL 2-14-16 (July 1 after passage for legislation without an emergency clause and without referendum filing) would govern.

But Article XII, Section 3 of the South Dakota Constitution said: "nor shall the compensation of any public officer be increased or decreased during his term of office." If this rule applied, the salary increases could not take effect until the next terms of office began (first Monday of January 1973 for most offices, first Monday of March 1973 for county auditors).

Mr. Hill asked the AG whether the acts took effect July 1, 1972 (the default rule) or had to wait until the next term started.

The AG worked through a layered constitutional analysis:

Step 1: Are these acts unconstitutional "private or special laws"? No. Article III, Section 23 prohibited private or special laws, but the three salary acts applied to every county in the state, not just some. They were general laws (citing Clark v. Board of County Commissioners).

Step 2: Does Article XII, Section 3 prohibit mid-term salary changes for county officials? Initially, yes, under the older line of cases. Hauser v. Seeley (1904) had limited "any public officer" in Article XII, § 3 to state officials whose salaries came from the state treasury, allowing mid-term increases for county officials. But State ex rel. Lamm v. Spartz (1934) overruled Hauser and extended the prohibition to elected county officials. Lamm was approved in Clark (1936) and Schamber (1942). So as of 1972, under Lamm/Clark/Schamber, the Constitution prohibited mid-term salary changes for county officials.

Step 3: Did the 1946 amendment to Article XXI, Section 2 supersede that prohibition? Yes. Chapter 314 of the 1945 Session Laws proposed amending Article XXI, Section 2, and the voters adopted the amendment at the 1946 general election. The amended provision read: "The Legislature by two-thirds vote of each branch thereof at any regular session may fix the salary of any or all constitutional officers including members of the Legislature. In fixing any such salary the Legislature shall determine the effective date thereof and may in its discretion decrease or increase the salary of any officer during his term."

The AG applied a principle from State ex rel. Lien v. Sathre (N.D. 1962): when a constitutional amendment is adopted, it must be harmonized with other provisions if possible; if harmonization is impossible, the amendment prevails as the latest expression of the people's will. The AG tried to harmonize Article XII, § 3 and Article XXI, § 2 but found them in irreconcilable conflict for constitutional officers. So Article XXI, § 2 controlled for constitutional officers, including county constitutional officers.

Step 4: Are county elected officials "constitutional officers"? Yes. A constitutional officer is one whose tenure and term of office are fixed and defined by the Constitution (citing Foster v. Jones; Wilson v. Walters; Franklin v. Westfall). Article IX, Section 5 of the South Dakota Constitution named the elected county offices in the salary acts and set their terms. So treasurers, auditors, clerks of courts, registers of deeds, states attorneys, and sheriffs were constitutional officers.

Step 5: Did the 1972 acts comply with Article XXI, § 2's requirements? The amended provision required:
1. Enactment at a regular session of the Legislature: yes, the 1972 session was a regular session.
2. Approval by two-thirds vote of each branch: yes, the AG inspected the House and Senate journals and confirmed that each act received more than two-thirds approval in both houses. (Chapter 44: House 52-18, Senate 32-2. Chapter 38: House 55-12, Senate 35-0. Chapter 39: Senate originally 31-2, House 61-10, Senate concurrence in House amendment 33-0.)
3. Legislature determines effective date: more troublesome, since the acts did not contain explicit effective dates. The AG concluded that SDCL 2-14-16's default rule (July 1 after passage) was impliedly part of every statute the Legislature passed without specifying an effective date. The Legislature had thus determined July 1, 1972 as the effective date by implication.

Bottom line: Each of the three acts took effect July 1, 1972, and lawfully increased county officer salaries even though the increases occurred mid-term.

The AG also noted In re Opinion of the Judges, 82 S.D. 500, 149 N.W.2d 326, which had held that a salary increase could not be retroactive to before the act's effective date (because of Article XII, § 3's separate prohibition on "extra compensation... after the services shall have been rendered"). The 1972 acts were prospective from July 1, 1972, so they did not raise that retroactivity problem.

Currency note

This opinion was issued in 1972. 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's constitutional and statutory framework for county officer salaries has been amended multiple times since 1972. The two-thirds vote requirement for salary changes and the relationship between Article XII, § 3 and Article XXI, § 2 may have been further interpreted by court decisions or modified by amendments. Modern questions about effective dates of county officer compensation statutes should be addressed under current constitutional and statutory provisions, not this 1972 opinion.

What the opinion meant at the time

For the affected county officials, the opinion meant their pay raise was effective July 1, 1972, not January or March 1973. They received roughly six extra months of higher pay compared to what the older case law would have allowed.

For county commissioners and county auditors managing payroll, the opinion required adjusting officer compensation on July 1, 1972 to match the new statutory rates. This required mid-fiscal-year payroll adjustments, which were administratively manageable but unusual.

For the South Dakota Legislature, the opinion confirmed that the 1946 amendment to Article XXI, § 2 had real teeth. The Legislature could change constitutional-officer compensation mid-term as long as it followed the two-thirds-vote procedure and at least implicitly determined an effective date. This gave the Legislature flexibility to respond to inflation, cost-of-living changes, and shifting workloads without waiting for the next term cycle.

For county taxpayers, the opinion meant property tax levies in the 1972-73 budget year had to absorb the salary increase. For most counties, this was a small fraction of the total budget, but in low-tax-base counties the impact could be felt.

For other elected constitutional officers in South Dakota (legislators themselves, state constitutional officers), the opinion underscored that their salaries too could be changed by two-thirds-vote during their terms. The flexibility cut both ways: increases and decreases were both authorized by Article XXI, § 2.

For the Lamm/Clark/Schamber line of cases, the opinion effectively confined those cases to historical interest as to constitutional officers. They might still apply to non-constitutional public officers (statutory officers whose terms were not constitutionally fixed), but for the named constitutional county offices, Article XXI, § 2 had displaced them.

Common questions

Q: What if a salary act passed by a bare majority (51%) rather than two-thirds in both houses?
A: The act would not satisfy Article XXI, § 2's two-thirds requirement, so the mid-term salary change permission would not apply. The act would then fall back to Article XII, § 3's prohibition on mid-term changes, and the increase could not take effect until the next term began. The two-thirds requirement was a meaningful constitutional protection.

Q: What about non-constitutional county positions (such as deputy sheriffs, county engineers, county zoning officials)?
A: Article XXI, § 2 applied only to "constitutional officers." Statutory county positions whose terms and tenure were not constitutionally fixed remained subject to Article XII, § 3's mid-term-change prohibition, at least under the AG's reasoning. Whether the Legislature could constitutionally amend those positions' salaries mid-term would have required a separate analysis.

Q: Did the AG address the situation where a county had a higher-than-statutory salary because of a special local arrangement?
A: No. The 1972 acts set state-wide standard salaries. Whether a county could pay more than the statutory minimum, and whether such a local arrangement could be increased or decreased mid-term, were separate questions the opinion did not address.

Q: What if the Legislature wanted to delay the effective date past July 1?
A: The Legislature could include an explicit later effective date in the statute. SDCL 2-14-16's July 1 default was just that, a default that the Legislature could override. Including a January 1 effective date in the salary act would have made the new salaries effective only with new terms (and would have eliminated the constitutional issue).

Q: Was the AG concerned about the SDCL 2-14-16 default qualifying as the Legislature "determining" the effective date as Article XXI, § 2 required?
A: Yes, this was the most difficult part of the analysis. The AG acknowledged it would have been "preferred" if the Legislature had specified the date within the bill. But the AG concluded that the Legislature was presumed to know the SDCL 2-14-16 default and to be relying on it. So the Legislature had impliedly determined July 1, 1972 as the effective date. This was a constructive-intent reading that other AGs or courts might have disagreed with.

Q: Were any of the salary increases struck down by courts later?
A: The opinion did not predict litigation. The AG's reasoning was reasonable but not airtight. A challenger could have argued that the SDCL 2-14-16 default did not satisfy the express constitutional "determine the effective date" requirement, and that the increases were therefore void. Without a court decision, the AG opinion was the best authority, and county finance officers reasonably relied on it.

Q: Did the opinion address whether the Legislature could decrease constitutional-officer salaries mid-term?
A: Yes, in passing. Article XXI, § 2 expressly allowed the Legislature to "decrease or increase" salary mid-term. The AG noted this gave the Legislature symmetric authority, though the 1972 acts only increased salaries.

Background and statutory framework

South Dakota's compensation framework for elected officers historically had two layers of constitutional protection:

Article XII, § 3 (1889 Constitution) prohibited mid-term salary changes for public officers: "nor shall the compensation of any public officer be increased or decreased during his term of office." This was a broad anti-graft, anti-favor protection.

Article XXI, § 2 (original 1889 version) addressed legislators' own salaries.

The 1946 voters amended Article XXI, § 2 to read more broadly: the Legislature, by two-thirds vote of each branch at any regular session, could fix the salary of any or all constitutional officers including members of the Legislature; the Legislature could determine the effective date and could decrease or increase salaries during a term.

This amendment created tension with Article XII, § 3 for constitutional officers. The AG (and presumably the courts, when faced with the question) had to decide whether the new provision (more specific, more recent) controlled over the old one (more general, older).

The 1972 acts (Chapters 38, 39, 44) raised salaries for elected county officers. By the time they were passed, the South Dakota Supreme Court had not yet ruled directly on the Article XII, § 3 / Article XXI, § 2 conflict. The AG had to predict how the Court would resolve it.

The Court's prior cases were:
- Hauser v. Seeley (1904): limited "public officer" in Art. XII, § 3 to state officials with state-treasury salaries. County officials not covered. Allowed mid-term increases for county officials.
- State ex rel. Lamm v. Spartz (1934): overruled Hauser. "Any public officer" included county officials. Prohibited mid-term salary changes for county officials.
- Clark v. Board of County Commissioners (1936): approved Lamm; held travel expense was not "compensation," so a travel-expense decrease mid-term was OK.
- Schamber v. Hutchinson County (1942): approved Lamm; struck down a county officer salary increase as unconstitutional mid-term change.

None of these post-Hauser cases had grappled with the 1946 Article XXI, § 2 amendment. The AG's opinion was the first systematic analysis of the amendment's effect.

The AG's resolution was that Article XXI, § 2, as amended, was an "amendment" in the sense the North Dakota Supreme Court had described in State ex rel. Lien v. Sathre, 113 N.W.2d 679. Constitutional amendments are "the latest expression of the will of the people" and prevail over preexistent inconsistent provisions if harmonization is impossible. The AG concluded harmonization was impossible for constitutional officers and that Article XXI, § 2 controlled.

The procedural question (had the Legislature satisfied the two-thirds vote requirement and effective-date determination?) was answered through journal inspection (a standard practice under the "modified enrolled bill" theory from Barnsdall Refining Corp. v. Welsh) and through an SDCL 2-14-16 default-applies reading.

The opinion was a substantial constitutional analysis. AG Mydland's reasoning relied on several streams of authority: the supremacy of constitutional amendments, the strict construction of constitutional officer definitions, and the implied incorporation of default effective-date rules into statutes. Each stream had support, but the cumulative weight was what made the opinion's conclusion sound.

Citations and references

Constitution:
- S.D. Const. Art. III, §§ 22, 23 (effective date, no private/special laws)
- S.D. Const. Art. IX, § 5 (county officer terms)
- S.D. Const. Art. XII, § 3 (mid-term compensation change prohibition)
- S.D. Const. Art. XXI, § 2 (as amended 1946; constitutional officer salary authority)

Statutes:
- 1972 SD Session Laws, Chapters 38, 39, 44 (salary acts)
- 1945 SD Session Laws, Chapter 314 (proposed Art. XXI, § 2 amendment)
- SDCL 2-14-16 (default July 1 effective date)
- SDCL 3-1-2 (county officer terms, except auditor)
- SDCL 7-7-1 (county auditor term)

South Dakota Supreme Court cases:
- Hauser v. Seeley, 18 S.D. 308, 100 N.W. 437 (1904)
- State ex rel. Lamm v. Spartz, 62 S.D. 593, 255 N.W. 797 (1934)
- Clark v. Board of County Commissioners, 64 S.D. 417, 267 N.W. 138 (1936)
- Schamber v. Hutchinson County, 68 S.D. 622, 5 N.W.2d 409 (1942)
- State ex rel. Richards v. Whisman, 36 S.D. 260, 154 N.W. 707 (1915)
- State ex rel. Richards v. Burkhart, 44 S.D. 285, 183 N.W. 870 (1921)
- Barnsdall Refining Corp. v. Welsh, 64 S.D. 647, 269 N.W. 853
- In re Opinion of the Judges, 82 S.D. 500, 149 N.W.2d 326

Out-of-state cases:
- State ex rel. Lien v. Sathre, 113 N.W.2d 679 (N.D. 1962)
- Foster v. Jones, 79 Va. 642, 52 Am. Rep. 637
- Wilson v. Walters, 112 P.2d 864 (Cal. App.)
- Franklin v. Westfall, 273 Ill. 402, 112 N.E. 974

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=363

Original opinion text

Elected county officials' salary amendments contained in Chs. 38, 39 and 44 of the Session Laws of 1972 are effective July 1, 1972, and are lawful.

Dear Mr. Hill:

You have requested my official opinion in regard to a problem facing each county elected official, except county commissioners, in South Dakota.

The factual situation giving rise to the problem is as follows:

During the 1972 regular legislative session, the Legislature enacted three separate Acts affecting the salary of elected county officials. Ch. 38 affected the salaries of the county treasurer, county auditor, clerk of courts and register of deeds of the several organized counties of the state; Ch. 39 affects the salaries of states attorneys, and Ch. 44 the salaries of the several sheriffs of the state.

In the body of each of such legislative acts, there is no provision designating the effective date of either of such acts.

The question you have presented is as follows:

Do these salary enactments become effective July 1, 1972 or, in view of certain constitutional inhibitions, take effect after the terms of office of county elected officers commence in 1973?

The term of office of all county officers, except the county auditor, commences on the first Monday in January next succeeding election. In the case of the county auditor, his term commences on the first Monday of March next succeeding his election. (SDCL 3-1-2 and 7-7-1).

Some may contend that in view of the constitutional inhibition presented by Sec. 23 of Article III of the South Dakota Constitution, these enactments are "private or special laws," disapproved by the Constitution. It is my opinion that such a challenge is erroneous.

Each of these enactments apply to every county in the state. They are not special or private laws within the meaning of this constitutional provision. (Clark v. Board of County Commissioners, (1936) 64 S. D. 417, 267 N.W. 138.)

The constitutional provisions directly involved are those you have mentioned in your inquiry. Section 3 of Article XII, and Sec. 2 of Article XXI of our Constitution.

Section 3 of Article XII, insofar as herein applicable, provides:

... nor shall the compensation of any public officer be increased or decreased during his term of office.

This phrase in our Constitution was initially interpreted by our Supreme Court in Hauser v. Seeley (1904) 18 S.D. 308, 100 N.W. 437, when the question of whether or not a county judge's salary could be increased during his term by a legislative act was in issue. The court, speaking through Judge Corson, determined that the term "public officers" as used in such phrase, only referred to state officials, provided for in the Constitution, whose salaries were paid from the state treasury. This being true, a county judge did not qualify as such public officer, and his salary could be increased during his term of office.

This holding was not challenged until State ex. rel. Lamm v. Spartz (1934) 62 S. D. 593, 255 N.W. 797, wherein it was contended the Hauser case was incorrect, so that the Legislature could not decrease the salary of a county register of deeds during his term of office. The court in the Lamm case overruled the Hauser precedent, and held that although the Constitution sets the term of office of elected county officials, it did not fix their compensation. The fixing of such salaries being exclusively a legislative matter. However, the court said Hauser was too limited in its definition of "any public officer." This term comprehended all public officers, including elected county officials, so that the Legislature was prohibited by the Constitution from decreasing a county official's salary during his term of office.

The Lamm case was approved in Clark v. Board of County Commissioners, (1936) 64 S. D. 417, 267 N.W. 138. (The actual question presented was whether or not the allowance of travel compensation to a states attorney using his own motor vehicle in his official duties amounted to "compensation" in a constitutional sense. The court held that such travel expense was not compensation, so that it could constitutionally be reduced during a term of office).

Our last case on the problem was Schamber v. Hutchinson County (1942) 68 S. D. 622, 5 N.W. 2d 409. The Lamm case was again approved and the court held that a statute raising the salary of a county official during his term of office was unconstitutional.

There can be no question that if Sec. 3 of Article XII of our Constitution is controlling, that in order for such statute to be declared constitutional, we must find its effective date to come after the first of January, 1973, and at the time a new term of county officials commence.

However, before reaching such conclusion, I must consider the effect of Section 2 of Article XXI of our Constitution. This constitutional provision was originally enacted in different language. A proposed amendment to such section appears in Ch. 314, Laws of 1945, which constitutional amendment was approved by a majority of the voters at the general election of 1946. As so amended, this constitutional provision reads as follows:

The Legislature by two-thirds vote of each branch thereof at any regular session may fix the salary of any or all constitutional officers including members of the Legislature. In fixing any such salary the Legislature shall determine the effective date thereof and may in its discretion decrease or increase the salary of any officer during his term.

Because of this amendment, it appears that the pronouncement in State ex. rel. Lien v. Sathre (N.D. 1962) 113 N.W. 2d 679, is pertinent. The court quoted from 1 Cooley, "Constitutional Limitations" (8th Edition) page 129, as follows:

Upon adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the constitution; and it is to be construed accordingly. If possible, it must be harmonized with all other provisions of the constitution. If this cannot be done the amendment will prevail.

The North Dakota Court paraphrased this principle of law approximately in this language:

The latest expression of the will of the people with respect to matters embraced therein, and such prevails over all preexistent inconsistent constitutional provisions.

In accordance with general rules, the Court pointed out that it must be presumed that people who adopt a constitutional provision intend a reasonable result, and that the court must construe such constitutional provision to give effect to the intention of the people who adopt it.

It appears to me that the 1946 amendment of Sec. 2 of Article XXI, in providing that the Legislature by a two-thirds vote of each branch thereof, may fix the salary of any or all constitutional officers, and also may increase or decrease the salary of any officer during his term, has in effect abrogated or repealed the heretofore quoted Section 3 of Article XII of the Constitution. I have attempted to harmonize these two constitutional provisions. I can appreciate that the term "any public officer" is broader in scope than the term "any and all constitutional officers," but there is no manner in which it can be said that the term "any public officer" does not include "any and all constitutional officers." Likewise, the term "compensation" (the term used in Sec. 3 of Article XII) and "salary" as used in Sec. 2 of Article XXI, are synonymous terms.

Insofar as "constitutional officers" are concerned, there is repugnancy between the cited constitutional provisions. In this situation the 1946 amendment of Sec. 2 Article XXI of our Constitution is controlling, and the provisions of Sec. 3, Article XII prohibiting the increase or decrease of compensation of a constitutional officer is abrogated.

I am convinced that I am correct in this holding in view of the liberal interpretation of who is a "public officer" as interpreted in the Lamm, Clark and Schamber cases previously cited. Our Supreme Court has in the past held that certain provisions of the Constitution have been abrogated by constitutional amendment. See State ex. rel. Eveland v. Jones, 43 S.D. 279, 178 N.W. 945; Dakota Lodge No. 1 v. Yankton County, 54 S.D. 402, 223 N.W. 330, and Egan Consolidated School Dist. v. Minnehaha County, 65 S.D. 32, 270 N.W. 527, 108 ALR 572.

The term "constitutional officer" has been defined by the courts:

Any of these officers whose tenure and term of office are fixed and defined by the Constitution are known as constitutional officers.

Foster v. Jones, 79 Va. 642, 52 Am. Rep. 637, (See also Wilson v. Walters (Calif. App.) 112 P 2d 864; Franklin v. Westfall, 273 Ill. 402, 112 N.E. 974) The elected county officials set forth in the three legislative acts under consideration are named within, and the tenure and term of office is set forth in Section 5 of Article IX of the South Dakota Constitution. Each is a constitutional officer. The salary of any or all of such constitutional officers may be increased or decreased during the term of office by legislative act.

Did the three acts in question effectively amend the salaries of the named county officials? Such question must be answered affirmatively if the Legislature enacted such measures in substantial compliance with the requirements of Sec. 2, Article XXI.

There appears three requisites to a proper salary bill. These are:

1. Such must be enacted at a regular session of the Legislature;
2. Such Act must be approved by a two-thirds vote of the members-elect of each branch of the legislative department of government; and
3. The Legislature must determine the effective date of such salary act.

Requisite 1 has been complied with. The 1972 legislative assembly was a regular session of the South Dakota Legislature.

In accordance with the modified enrolled bill theory of inspection of legislative journals as adopted in Barnsdall Refining Corp. v. Welsh, 64 S.D. 647, 269 N.W. 853, and defined since that time by our court, I have inspected the House and Senate Journals relative to the adoption of each of the Acts under consideration. This inspection of the journals has revealed the following vote in each branch of the legislative body.

Chapter 44 originated in House Bill No. 601. The vote for its passage in the House was 52-18, in the Senate 32-2. In each branch the presiding officer announced that more than two-thirds of the members-elect voted in favor of enactment.

Chapter 38 originated in House Bill No. 663. Such was approved in the House 55-12, and in the Senate 35-0. In each branch likewise, the presiding officer announced that more than two-thirds of the members-elect voted in favor of enactment.

Chapter 39 originated in Senate Bill No. 85. It was amended in Committee, and as so amended, was approved 31-2. (The presiding officer announcing the approval by two-thirds of the members-elect.) In the House such bill was amended both in committee and on the floor of the House during debate. As so amended, it was approved 61-10, with the usual announcement of approval by more than two-thirds of the members-elect of such body. Such amended bill was returned to the Senate for concurrence with, or rejection of such amendment. The Senate assented to such amendment by a vote of 33-0. The Journal then states:

So the motion having received an affirmative vote of a majority of the members-elect, Mr. President declared the motion prevailed and House amendment to Senate Bill No. 85 concurred in.

It is apparent that more than two-thirds of the members-elect of the Senate concurred in this amendment. It would be absurd to say that the journals must reflect this obvious fact, and that there was no two-thirds vote of the Senate because of the declaration of the chair.

Each of the Acts in question was enacted by two-thirds vote of each branch of the Legislature.

Only one question remains, and this is the most troublesome. This question is as to whether or not the Legislature substantially complied with the constitutional provisions which requires the Legislature to determine the effective date of such salary measures.

There is no question that it would have been preferred had the Legislature itself, within each of these bills, designated a definite effective date of these salary amendments. However, by Statute of long standing, the Legislature has provided a statute covering the effective date of its enactment. This statute is SDCL 2-14-16, which provides:

Subject to the provisions of the Constitution and statutes relating to vetoes and the referendum, an act of the Legislature which does not prescribe when it shall take effect, if passed, at a regular session, takes effect on the first day of July after its passage ...

I must presume the members of the 1972 legislative assembly were acquainted with this general statute. In the early case of State ex. rel. Richards v. Whisman (1915) 36 S.D. 260, 154 N.W. 707, LEA 1917B 1, our Court, speaking through Judge McCoy has stated:

Every law which the Legislature has power to enact, where there is no emergency clause embodied therein, goes into effect on the next succeeding 1st day of July, unless vetoed by the Governor, or unless a referendum petition referring the same to a vote is filed as required by law.

(See also State ex. rel. Richards v. Burkhart (1921) 44 S.D. 285, 183 N.W. 870.) This rule of law has never been questioned or overruled by our Court.

It is my opinion that this statutory determination is impliedly a part of every statute enacted by our Legislature which does not within its body set an effective date. This statute does not conflict with the provisions of Sec. 22 of Article III of our Constitution which provides that except in cases of emergency, no act shall take effect until ninety days after the adjournment of the session at which it is passed.

In re Opinion of the Judges, 82 S.D. 500, 149 N.W. 2d 326, the court was concerned with the constitutionality of a retroactive payment of twenty dollars a day that the Legislature awarded itself. The act contained an emergency clause, which presumptively required it become effective upon approval of the Governor.

Our court, without discussing either of the constitutional sections I have discussed, did hold such statute to be unconstitutional, insofar as its retroactive features were concerned, as it violated the provision of Sec. 3, Article XII of the Constitution which provides that the Legislature shall never grant "any extra compensation to any public officer ... after the services shall have been rendered."

The conclusion of such opinion seems significant. It says:

It is our opinion House Bill No. 645 may constitutionally operate prospectively.

July 1, 1972 was prospective to the date of passage of each of the Acts of the Legislature by the legislative branches and the approval by the Governor. None of such bills was subject to the veto, nor are any of such acts subject to referendum.

Each of the Acts became effective on July 1, 1972. Each was enacted in substantial compliance with the constitutional mandate and is proper and constitutional.

Respectfully submitted,

Gordon Mydland
Attorney General