The 1972 South Dakota Constitution amendment allowed the Governor to reorganize state agencies, boards, and commissions by executive order. But the same amendment carved out an exception for elected constitutional officers (Governor, Lt. Governor, Attorney General, Secretary of State, Auditor, Treasurer, Commissioner of School and Public Lands). Could the Governor use his executive-order reorganization power to strip the Office of the Commissioner of Consumer Affairs out of the Attorney General's office and move it to a different department?
Plain-English summary
In the early 1970s, South Dakota voters amended Article IV, Section 8 of the state Constitution to modernize executive branch organization. The amendment required that all executive offices, boards, agencies, commissions, and instrumentalities be allocated by law among not more than twenty-five principal departments by July 1, 1974. The amendment also gave the Governor power to make changes in the organization of offices, boards, commissions, agencies, and instrumentalities (and their functions, powers, and duties) "as he considers necessary for efficient administration," via executive orders subject to legislative disapproval.
But the amendment included two key exceptions:
1. The reorganization mandate did not apply to the constitutional officers listed: "the office of governor, lieutenant governor, attorney general, secretary of state, auditor, treasurer, and commissioner of school and public lands."
2. The Governor's executive-order reorganization power applied "except as to elected constitutional officers."
Governor Kneip used the executive-order power to reorganize state government significantly. Among other moves, he issued an Executive Order transferring the Office of the Commissioner of Consumer Affairs out of the Attorney General's office and into a different principal department. Consumer Affairs had been "established in the Office of the Attorney General by the Legislature" under SDCL 37-23-1.
Mr. Johnson asked the AG whether the executive-order transfer was constitutionally valid.
The AG ruled it was not. The reasoning was straightforward textual interpretation:
The "except" clause means what it says. Article IV, Section 8's first paragraph said the reorganization mandate applied to all state agencies "except for" the listed constitutional offices. The second paragraph gave the Governor reorganization power "except as to elected constitutional officers." Citing Gibbons v. Ogden, Schomer v. Scott, and various other authorities for the proposition that "except" means "to take or leave out of consideration, to exclude... omit, or withhold" (citing Rickman v. Commonwealth, 243 S.W. 929 (Ky.)). "The purpose of an exception is to exclude from the operation of certain words what would otherwise be included in them" (citing In re Garvin's Estate, 6 A.2d 796, 800 (Pa.)).
Reading the two paragraphs together. Either paragraph standing alone protected constitutional offices and their functions. Read together, both paragraphs made the conclusion irrefutable. The framers' intent was that constitutional offices and their "functions, powers and duties" would not be "emasculated or changed by anyone but the Legislature."
Consumer Affairs was part of the AG's office once placed there by the Legislature. SDCL 37-23-1 had "established" the Office of the Commissioner of Consumer Affairs "in the Office of the Attorney General." Once the Legislature placed Consumer Affairs in the AG's office, its functions, powers, and duties became part of the AG's office. The Governor could no more transfer that office than he could transfer the AG's authority to prosecute lawsuits. Both were integral parts of the AG's office placed there by the Legislature, and neither could be removed by executive order.
Legislative inaction did not cure the defect. The Governor's reorganization order had become "effective" through the Article IV, Section 8 mechanism (legislative inaction within ninety days). But the AG ruled that legislative failure to veto could not transform an unauthorized order into an authorized one. "What is ultra vires ab initio cannot be cured by a later action or inaction." The Legislature could have separately enacted a statute transferring Consumer Affairs out of the AG's office, but it had not done so by acquiescence in the reorganization order.
Same analysis applied to other affected functions. The opinion's reasoning applied also to UCC filings transferred out of the Secretary of State's office and to the Office of the Commissioner of Drugs and Substances Control transferred out of the AG's office.
Comparative constitutional analysis. The amendment was patterned after the Model State Constitution, which derived its language from Hawaii, Alaska, and New Jersey constitutional reorganization provisions. None of those states' constitutions had a provision exempting constitutional offices from reorganization. South Dakota's Legislature had specifically added the exemption clauses. The AG read this as evidence of deliberate intent to limit the Governor's reorganization power vis-à-vis constitutional officers.
Court precedent inconclusive. In re Opinion of the Justices, 203 N.W.2d 526, had asked the Supreme Court a related question (whether an executive order could transfer an agency or function statutorily attached to a constitutional office to another principal department), but the Justices had declined to answer it as too broadly framed. The AG's opinion filled that gap.
Acknowledging the Governor's larger reorganization effort. The AG closed by saying the opinion "should not be construed as an attack on the Executive Order or upon reorganization, with which, incidentally, I wholeheartedly agree. It is a remarkable piece of work considering the short time available for its preparation. In this haste, it is explainable that certain matters could have been overlooked." The AG was carving out only the constitutional-officer-function pieces, not the broader reorganization.
Bottom line: the answer to the underlying question was no, the Governor could not strip Consumer Affairs (or other statutorily-assigned functions) out of the AG's office (or other constitutional offices) by executive order. Only the Legislature could do that.
Currency note
This opinion was issued in 1973. 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. The reorganization of South Dakota state government completed under Article IV, Section 8 has been further refined by subsequent reorganization orders and statutes. The status of Consumer Affairs (now within the AG's office under the Consumer Protection division) and the relationships between the Governor's executive-order authority and the constitutional officers have continued to evolve. Modern reorganization questions should be addressed under current constitutional, statutory, and judicial frameworks rather than this 1973 opinion.
What the opinion meant at the time
For the Attorney General's office (Kermit A. Sande signed this opinion), the ruling protected the AG's office from Governor Kneip's reorganization order. Consumer Affairs (and the Commissioner of Drugs and Substances Control) had to stay in the AG's office. The AG's office could resume operating those functions as before, treating the executive-order transfer as void.
For the Secretary of State's office, UCC filings remained in the office, since the same reasoning applied.
For Governor Kneip's reorganization effort generally, the opinion was a partial setback. Most of the executive order's transfers (involving non-constitutional offices) remained valid; only the parts touching constitutional offices were void. The Governor could pursue legislative action to formally transfer constitutional-office functions if desired.
For the South Dakota Legislature, the opinion was a confirmation that its statutory placement of functions in constitutional offices was robust. Once the Legislature placed a function in the AG's office (or the Secretary of State's office, etc.), the Governor could not later remove it by executive order. Only legislative action could undo legislative action.
For the South Dakota Supreme Court, the opinion was a complete analysis of the question the Court had previously declined to answer in the In re Opinion of the Justices case. If the issue reached the Court in a contested case, the AG's reasoning was a ready-made framework.
For administrative agencies in the broader executive branch, the opinion's reasoning had implications. Functions attached to non-constitutional offices remained transferable by executive order (subject to legislative veto). Functions attached to constitutional offices were untouchable.
For the Model State Constitution drafters and other states considering similar reorganization mechanisms, the opinion was a cautionary tale about how the Model Constitution's framework had to be adapted to state-specific constitutional structures. South Dakota's protection of its constitutional officers had been a deliberate departure from the Model and constrained the modernization effort.
Common questions
Q: Could the Legislature have transferred Consumer Affairs out of the AG's office by statute?
A: Yes. The opinion expressly acknowledged this: "the Legislature does have the power to transfer, by enacting a special statute, any power, function or duty out of a constitutional office, placed there originally by statute." The Governor's reorganization power was limited; the Legislature's was not. So Consumer Affairs could be moved by a statutory amendment to SDCL 37-23-1 (or by creating new statutory placement elsewhere and repealing the AG-office placement).
Q: What about functions assigned to constitutional offices by the Constitution itself rather than by statute?
A: Those were even more strongly protected. The AG's constitutional duty to prosecute lawsuits, for instance, was rooted in the constitutional definition of the AG's office. Neither the Legislature nor the Governor could strip that function from the AG's office without a constitutional amendment.
Q: Did the opinion address the situation where a function was assigned to a constitutional office but had grown so large that it dominated the office?
A: No. The opinion's reasoning was formal: once the Legislature placed a function in a constitutional office, it stayed there until the Legislature moved it. The size or relative importance of the function did not matter. A small statutory function placed in the AG's office was protected to the same degree as the AG's core duties.
Q: What was the difference between an Executive Order under Article IV, Section 8 and a typical gubernatorial executive order?
A: Article IV, Section 8 executive orders had a unique force: if not vetoed by majority resolution of either house within ninety days of the legislative session, they had "the force of law." This was a delegation of legislative power to the Governor subject to legislative override. Ordinary gubernatorial executive orders (administrative directives within the executive branch) did not have the same force-of-law status.
Q: If the Legislature failed to disapprove a constitutional-officer-affecting executive order within 90 days, was the order saved by ratification?
A: No, per the AG's opinion. Legislative inaction could ratify an order within the Governor's authority but could not extend the Governor's authority to areas the Constitution had excluded. The "ultra vires ab initio cannot be cured" principle preserved the constitutional limits.
Q: Could the affected constitutional officer (e.g., the AG) sue to enforce the AG's office's continued authority over the transferred function?
A: The opinion did not address standing or remedies. Presumably yes; the AG could file a quo warranto or mandamus action in circuit court to enforce the AG's authority and to declare the executive order void as to constitutional-office functions. In practice, the AG's published opinion put the executive branch on notice that the AG's office would not treat the transfer as effective, and absent a court order to the contrary, the practical effect was to neutralize the transfer.
Q: What was the relationship between this opinion and the broader Article IV, Section 8 reorganization deadline (July 1, 1974)?
A: The reorganization deadline applied to non-constitutional offices: they had to be allocated among twenty-five principal departments by that date. Constitutional offices were excepted and did not need to be reorganized. The Governor could pursue the reorganization of non-constitutional offices on the timeline, but could not extend the reorganization to constitutional offices.
Background and statutory framework
South Dakota's executive branch in 1973 was a patchwork of statutory and constitutional offices. The constitutional offices (elected statewide) were the Governor, Lieutenant Governor, Attorney General, Secretary of State, Auditor, Treasurer, and Commissioner of School and Public Lands. Various other agencies, boards, commissions, and offices had been created by statute over the decades, with no overall organizing principle.
The early 1970s saw a national wave of state government reorganization efforts. The Model State Constitution, drafted by the National Municipal League, included a reorganization framework that consolidated executive branch agencies into a smaller number of principal departments and gave the Governor executive-order reorganization authority subject to legislative oversight.
South Dakota voters amended Article IV, Section 8 to adopt a version of the Model Constitution's framework. But the South Dakota version included two important exceptions for constitutional officers: they were not required to be allocated to the twenty-five-department framework, and the Governor's executive-order reorganization power did not apply to them.
The 1972 amendment was the result of significant legislative deliberation. The Hawaii, Alaska, and New Jersey models that influenced the Model Constitution did not have constitutional-officer exceptions. South Dakota's Legislature deliberately added them to preserve the autonomy of the elected constitutional officers.
The reorganization push under Governor Kneip moved aggressively. Executive Order 73-1 (and related orders) attempted to consolidate dozens of state agencies into the new twenty-five-department framework. The orders generally satisfied the Article IV, Section 8 framework for non-constitutional offices, but they also tried to transfer some functions out of constitutional offices.
The Office of the Commissioner of Consumer Affairs had been created by SDCL 37-23-1 and placed in the AG's office. Consumer protection had become a significant policy area in the early 1970s, and the Legislature had given the AG's office leadership on consumer affairs. The Governor's reorganization order would have moved Consumer Affairs to a different principal department, presumably to align with broader consumer-related functions.
The In re Opinion of the Justices, 203 N.W.2d 526, was the Supreme Court's response to a request for advisory opinion from the Governor. The Justices answered the first question (whether the executive-order procedure was constitutional generally) but declined to answer the second (whether the procedure could be used to transfer functions from constitutional offices). The Justices wrote: "Your questions 2 and 3 are of such broad scope, may involve the authority of constitutional officers and the whole spectrum of state government and its institutions, that we decline to answer them as now stated at this time."
The AG's opinion in 1973 stepped into the gap left by the Justices' decline. The AG's reasoning was textual (the "except" clauses meant what they said) and structural (constitutional officers' autonomy was a foundational element of South Dakota's governance framework). Both grounds supported the result.
The AG (Kermit A. Sande by 1973) closed the opinion with a respectful note: he supported reorganization generally and admired Executive Order 73-1's quality, but the constitutional-officer-function pieces were beyond the Governor's reorganization authority. This carefully calibrated stance avoided framing the opinion as an attack on the Governor's broader effort while still defending the AG's office's prerogatives.
Citations and references
Constitution and statutes:
- S.D. Const. Art. IV, § 8 (executive branch reorganization; constitutional officer exception)
- SDCL 37-23-1 (Office of the Commissioner of Consumer Affairs established in the AG's office)
South Dakota Supreme Court cases:
- Schomer v. Scott, 65 S.D. 353, 274 N.W. 556
- In re Opinion of the Justices (Executive Order 73-1), ___ S.D. , 203 N.W.2d 526
- In re Opinion of the Supreme Court (Executive Order 73-1), ___ S.D. , 204 N.W.2d 184
U.S. Supreme Court cases:
- Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L. Ed. 23
Out-of-state cases (cited on meaning of "except"):
- In re Kelley's Estate, 274 N.Y.S. 488, 495, 153 Misc. 445
- Rickman v. Commonwealth, 243 S.W. 929 (Ky.)
- In re Garvin's Estate, 6 A.2d 796, 800 (Pa.)
Source
Original opinion text
Governor cannot diminish Constitutional officers by Executive Order.
Dear Mr. Johnson:
You have asked for an official opinion on the following question:
Can the Office of the Consumer Affairs Commissioner, created by statute and made a part of the Attorney General's Office by the Legislature, be removed therefrom by an Executive Order issued pursuant to Article IV, Section 8 of the State Constitution?
The constitutional section in question provides:
All executive and administrative offices, boards, agencies, commissions and instrumentalities of the state government and their respective functions, powers and duties, except for the office of governor, lieutenant governor, attorney general, secretary of state, auditor, treasurer, and commissioner of school and public lands, shall be allocated by law among and within not more than twenty-five principal departments, organized as far as practicable according to major purposes, by no later than July 1, 1974. Subsequently, all new powers or functions shall be assigned to administrative offices, agencies and instrumentalities in such manner as will tend to provide an orderly arrangement in the administrative organization of state government. Temporary commissions may be established by law and need not be allocated within a principal department.
Except as to elected constitutional officers, the Governor may make such changes in the organization of offices, boards, commissions, agencies and instrumentalities, and in allocation of their functions, powers and duties, as he considers necessary for efficient administration. If such changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the Legislature within five legislative days after it convenes, and shall become effective, and shall have the force of law, within ninety days after submission, unless disapproved by a resolution concurred in by a majority of all the members of either house. (Emphasis added).
The framers of our Constitution, and the people who adopted it, must be understood to have used words in their natural sense to have intended what they said. Gibbons v. Ogden, 9 Wheat 1, 188, 6 L. Ed. 23; Schomer v. Scott, 65 S.D. 353, 274 N.W. 556. The word "except" means "not including," In Re Kelley's Estate, 274 N.Y.S. 488 495, 153 Misc. 445. It also means "to take or leave out of consideration, to exclude . . . omit, or withhold." Rickman v. Commonwealth, 243 S.W. 929 (Ky.). Also, "the purpose of an exception is to exclude from the operation of certain words what would otherwise be included in them." In Re Garvin's Estate, 6 A 2d 796, 800 (Pa.).
Accordingly, the intent of this provision, insofar as it applies to your question, is clear and simple. The Governor may not reorganize any part of a constitutional office. No other rational or logical construction can be made from this section.
Either paragraph standing alone is evidence that the Legislature and the people who passed the Article intended that constitutional offices and their "functions, powers and duties" would not be emasculated or changed by anyone but the Legislature. Read together, both paragraphs make this conclusion irrefutable.
The Office of the Commissioner of Consumer Affairs was "established in the Office of the Attorney General by the Legislature." SDCL 37-23-1. As such, its functions, powers and duties became part of the functions, powers and duties of the Attorney General. The Governor could no more transfer that office to another department than he could transfer the Attorney General's authority to prosecute lawsuits. Both the authority to prosecute lawsuits and authority over consumer affairs are integral parts of the Office of the Attorney General placed there by the Legislature, and neither can be removed by an Executive Order. This fact is the same with respect to the other elected constitutional officers enumerated above and with respect to their functions, powers and duties as set forth by the Legislature in statute. To hold otherwise would allow one constitutional officer the authority to emasculate the offices of all the other constitutional officers, which certainly the Legislature and people did not intend.
It is interesting to note that this section was patterned after the model state Constitution. The Model Constitution was derived from Constitutions passed in the States of Hawaii, Alaska and New Jersey. However, none of those states had a provision exempting constitutional offices from reorganization. That provision was specifically added by our Legislature. This is an important distinction; the exemption clauses were not mere happenstance, they were intentionally added after being considered and studied with due deliberation. See in Re Opinion of the Justices, _S.D.___, 203 N.W. 2d 526, pp. 528-9 for the legislative history. No words of a constitution can be regarded as meaningless. The language of a constitutional provision should be construed as written, and the words employed should be given their common, ordinary and accepted meaning. Using this guide to interpret the section, it is manifest that the Legislature, by inserting exceptions into the model, intended that the Governor's power to reorganize by Executive Order be limited to preserve the autonomy of the other Constitutional officers elected by the people.
The three Justices of the Supreme Court who wrote the majority opinion in response to a request for an advisory opinion, In Re Opinion of the Justices, supra, did not answer the second question submitted by the Governor:
- Can an executive order which becomes effective and has the force of law by the procedures established in Article IV, Section 8 of the South Dakota Constitution transfer an agency or function created and attached by statute to a constitutional office from that office to a principal department within the executive branch?
The Justices stated:
Your questions 2 and 3 are of such broad scope, may involve the authority of constitutional officers and the whole spectrum of state government and its institutions, that we decline to answer them as now stated at this time.
There is nothing in that opinion or in, In Re Opinion of the Supreme Court, relative to Executive Order 73-1, _S.D.___, 204 N.W. 2d 184, upon which to base a conclusion that the Governor has the authority to reorganize divisions within a constitutional office.
Admittedly, the Legislature does have the power to transfer, by enacting a special statute, any power, function or duty out of a constitutional office, placed there originally by statute. But the Governor has never had this power, and the Constitution does not purport to give such to him. Legislative failure to veto the Governor's reorganization order cannot be deemed as affirmative legislative action or as legislative approval. What is ultra vires ab initio cannot be cured by a later action or inaction.
The reasoning of this opinion applies also to other functions of constitutional offices transferred out by the Executive Order, such as the Uniform Commercial Code filings of the Office of the Secretary of State and the Office of the Commissioner of Drugs and Substances Control of the Office of the Attorney General.
This opinion should not be construed as an attack on the Executive Order or upon reorganization, with which, incidentally, I wholeheartedly agree. It is a remarkable piece of work considering the short time available for its preparation. In this haste, it is explainable that certain matters could have been overlooked.
The answer to your question, is therefore, NO.
Respectfully submitted,
Kermit A. Sande
Attorney General