South Dakota passed two bills in 1975 that both addressed state-employee sick leave: HB 625 removed the accumulation cap, and SB 102 added a five-day personal-emergency provision but did not touch the accumulation cap. They reach the governor's desk a few days apart. Which one is the law on July 1?
Plain-English summary
The 1975 South Dakota Legislature passed two bills that both touched state-employee sick leave. House Bill 625, passed March 19, 1975, removed the existing limit on how many sick-leave days a state employee could accumulate. Senate Bill 102, passed March 21 and signed by the Governor March 27, took a different angle: it left SDCL 3-6-7's accumulation cap language alone and added a paragraph saying an employee could use up to five days of sick leave per calendar year for "personal emergency reasons."
The conflict was structural. HB 625 said the accumulation cap was gone. SB 102 said it was still there, but with an added personal-emergency carve-out. Both would become law on July 1, 1975. Mr. Vigen wanted to know which version of SDCL 3-6-7 would actually govern.
AG William Janklow's answer leaned on a clean rule of South Dakota statutory construction: when the legislature passes inconsistent acts on the same subject during the same session, the act approved last prevails. That rule came directly from the South Dakota Supreme Court's 1945 decision in Nord v. General Life Insurance Company, 71 S.D. 1, 20 N.W.2d 403.
Applying Nord, SB 102 (signed March 27) prevailed over HB 625 (passed March 19). The practical consequence for state employees was that the accumulation cap survived; only the five-day personal-emergency provision was added on top of the existing framework. The result was less generous to state employees than HB 625's standalone text would have been, but it was the result the statutory construction rule dictated.
Janklow acknowledged that the result "may seem harsh" but observed that the alternative, treating inconsistent statutes as both fully operative, would be worse. The Nord rule produces a deterministic answer; the alternative produces ongoing dispute.
Currency note
This opinion was issued in 1975 during AG William Janklow's tenure. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. SDCL 3-6-7 has been amended multiple times since 1975, and modern state-employee sick-leave rules, accumulation caps, and personal-emergency entitlements should be verified against current statute and any applicable Bureau of Human Resources guidance before reliance. The underlying Nord-based "last act prevails" rule of statutory construction remains a recognized principle in South Dakota.
What the opinion meant at the time
For state employees, the immediate consequence was that they could not bank unlimited sick leave despite HB 625's text. The cap remained in place, and only the new five-day personal-emergency carve-out applied. The opinion explained why their HB 625 reading was wrong without disputing that HB 625 itself, in isolation, would have produced the more generous result.
For state agency personnel staff, the opinion provided clear guidance: implement SB 102, not HB 625. Track sick leave under the existing cap and apply the new five-day personal-emergency entitlement separately.
For legislative drafting staff and the Code Commission, the opinion was an indirect cautionary tale. When a session passes two bills that both touch the same statute without cross-reference, the Nord rule resolves the inconsistency but in a way that may not reflect what either chamber intended. The cure is better coordination during drafting, not litigation after the fact.
Common questions
Q: What did SB 102 add to SDCL 3-6-7?
A: A new paragraph allowing an employee to use up to five days of sick leave each calendar year for personal emergency reasons. SB 102 otherwise left SDCL 3-6-7 in its prior form, which included the accumulation cap that HB 625 would have removed.
Q: Why was HB 625 effectively erased?
A: HB 625 amended SDCL 3-6-7 by deleting the accumulation cap. SB 102, signed later, re-enacted the prior text of SDCL 3-6-7 (with the new personal-emergency paragraph added) without removing the cap. Under Nord v. General Life, the later-signed act prevails when it inconsistently re-enacts older language. SB 102's version controlled.
Q: Could a court overrule the AG and apply both bills?
A: Theoretically yes. AG opinions are persuasive, not binding. But Janklow was applying a square holding of the South Dakota Supreme Court, so a contrary outcome would have required revisiting Nord. In practice, the AG's reading was the operative legal answer for state agencies to follow.
Q: What if the bills had been signed on the same day?
A: The opinion did not address that scenario. Nord's rule presupposes a temporal sequence. If the bills were signed simultaneously, a court would have to reach for a different construction principle (such as harmonizing the two acts wherever possible, or finding legislative intent from the journals).
Q: Did the legislature ever clean this up?
A: That's outside the scope of this 1975 opinion. Subsequent sessions could revisit the sick-leave statute. Modern users should check current SDCL 3-6-7 rather than rely on the 1975 result.
Q: What is the underlying rationale for the "last act prevails" rule?
A: The legislature is presumed to know what it has already done in the same session. If it then passes a second bill that inconsistently re-enacts the language, the second act is the more recent expression of legislative will. The rule converts a drafting failure into a deterministic outcome.
Background and statutory framework
South Dakota statutory construction recognizes several rules for handling conflicts between statutes. The strongest is repeal by implication: a later statute that is wholly incompatible with an earlier one repeals the earlier one, even without an express repealer. The Nord-based rule for same-session inconsistencies is a variant of that principle, applied where both statutes pass during a single legislative session and reach the Governor in sequence.
The Nord case itself involved an inconsistency that turned on which insurance-regulation statute applied. The South Dakota Supreme Court treated the later-passed act as the operative law, reasoning that the legislature is presumed competent to repeal what it had recently passed by passing something inconsistent later in the same session.
For state-employee sick leave specifically, SDCL 3-6-7 is the operative statute, sitting within Title 3 (Public Officers and Employees), chapter 3-6 (State Employees), and dealing with leave entitlements alongside vacation, holiday, and other provisions. The accumulation cap is a policy choice with budgetary implications: unlimited accumulation creates a contingent liability for the state at the moment of an employee's separation, since accumulated sick leave may convert to payment depending on the surrounding rules.
The personal-emergency carve-out added by SB 102 anticipates situations where a state employee needs short-term leave for an issue that is not strictly medical (family emergency, urgent personal matter). Five days per calendar year was the cap.
Citations and references
Statutes:
- SDCL 3-6-7 (state employee sick leave, as it stood after SB 102 took effect July 1, 1975)
Cases:
- Nord v. General Life Insurance Company, 71 S.D. 1, 20 N.W.2d 403 (1945) (last act passed prevails when same-session statutes conflict)
Bills:
- 1975 HB 625 (would have removed sick leave accumulation cap)
- 1975 SB 102 (added five-day personal-emergency provision; prevailed under Nord)
Source
Original opinion text
Sick leave for state employees
Dear Mr. Vigen:
You have requested an opinion based on the following factual situation:
It has come to the attention of this office that two bills passed the recent session of the Legislature and both bills concern sick leave for state employees. The legislation was House Bill No. 625 which passed the Legislature on March 19, 1975. This bill removed the limit on the accumulation of sick leave by state employees.
The second bill was Senate Bill No. 102, passed by the Legislature on March 21, 1975 and signed by the Governor on March 27, 1975. This bill left the language of 3-6-7 in its previous form. It amended 3-6-7 by adding a paragraph which stated that an employee could use five days of sick leave in each calendar year for personal emergency reasons.
Based on this factual situation you ask the following questions:
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Will both bills be the "law of the land" as of July 1,1975?
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Does the time of passage and signature give one bill precedence over the other?
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Consequently, what, exactly, will be the law as to sick leave as of July I, 1975?
In the case of Nord v. General Life Insurance Company, 71 S.D. 1,6,20 N. W. 2d 403 (1945) the South Dakota Supreme Court recognized the principle that when inconsistent acts are passed at the same session of the Legislature, the act approved last prevails. In the present situation this principle would apply in my view so as to make Senate Bill No. 102 the act which prevails.
The answer to your second question therefore is YES.
With respect to your first and third questions, it appears to me that pursuant to the Nord case rationale, the latter passed statute is the law. I am aware that this may seem harsh, but the alternative of having conflicting inconsistent acts on the same subject such as we have here is no better. It is my view that the Nord case has the effect of putting us on notice that Senate Bill No. 102, in the present case, is the law as of July 1, 1975.
Respectfully submitted,
William Janklow
Attorney General
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