Opinion
Opinion Delivered December 10, 2002
The Honorable Charlie Daniels Commissioner of State Lands 109 State Capitol Building Little Rock, Arkansas 72201
Dear Mr. Daniels:
I am writing in response to your request for an opinion on the following question:
Do the provisions of A.C.A. § 21-1-102 still control the term of office for the Commissioner of State Lands or, as a constitutional office, should the term correspond with that of other designated constitutional officers?
RESPONSE
In my opinion A.C.A. § 21-1-102 still controls the term of the Commissioner of State Lands.
The statute you reference provides as follows:
(a) The term of office of the Commissioner of State Lands; Justices of the Supreme Court; all district officers, except state senators; all county officers, except members of the lower house of the General Assembly; and all township officers and road overseers, when road overseers are elected, shall begin on January 1 following their election. However, in the case of a special election to fill an unexpired term, or to fill an office created after the last preceding general election, the term of the officer so elected shall begin as soon after the election as the result can be ascertained and the person elected can be commissioned and qualified.
(b) All officers shall hold their respective offices for the term prescribed by the law and until their successors are elected and qualified.
Emphasis added.
You note that this statute was enacted in 1917 "and at that point in time the office of Commissioner of State Lands was not a constitutional office." You also note, however, that Amendment 37 to the Arkansas Constitution, adopted in 1946, "included the Commissioner of State Lands in the list of executive departments of state. . . ." You also note that Amendment 56, which repealed Amendment 37, "includes the Commissioner of State Lands as an executive department of state," as does Amendment 63, which increased the terms of the state executive officers, including the Commissioner of State Lands, to four years.
Original art. 6, § 1 of the Arkansas Constitution provided that: "The executive department of this State shall consist of a Governor, Secretary of State, Treasurer of State, Auditor of State and Attorney General, all of whom shall keep their offices in person at the seat of government and hold their offices for the term of two years and until their successors are elected and qualified, and the General Assembly may provide by law for the establishment of the office of Commissioner of State Lands." (Emphasis added.) It has been stated that: "In respect of the office of commissioner of state lands, Pope's Digest (8601) quotes from 24, schedule, constitution of 1874, which provides: `The office of commissioner of state lands shall be continued, provided that the general assembly at its next session may abolish or continue the same in such manner as may be prescribed by law.' A note to Pope's Digest, p. 2194, is: `The office of commissioner of state lands was created by act of July 15, 1868, under which he was appointed by the governor and held office for the term of four years. Under the present constitution he is elected by the qualified electors of the state for the term of two years. Sched. Const., 3.' Page v. McCuing, 201 Ark. 890, 895 fn4, 148 S.W.2d 308 (1941).
The crux of your question focuses on whether A.C.A. § 21-1-102 still sets the beginning of the term of office of the Commissioner of State Lands as January 1, or, on the other hand, whether the Commissioner of State Lands is to begin his term of office on the same date as other state executive offices. The terms of office of the other state executive officers (the Governor, Attorney General, etc.), are governed by Arkansas Constitution, art. 6, § 3, which provides:
The Governor, Secretary of State, Treasurer of State, Auditor of State and Attorney General shall be elected by the qualified electors of the State at large at the time and places of voting for members of the General Assembly; the returns of each election therefor shall be sealed up separately and transmitted to the seat of government by the returning officers, and directed to the Speaker of the House of Representatives, who shall, during the first week of the session, open and publish the votes cast and given for each of the respective officers hereinbefore mentioned, in the presence of both houses of the General Assembly. The persons having the highest number of votes for each of the respective offices shall be declared duly elected thereto; but if two or more shall be equal, and highest in votes for the same office, one of them shall be chosen by the joint vote of both houses of the General Assembly, and a majority of all the members elected shall be necessary to a choice.
It has been stated that the "terms of the officers named in Section 3 do not being on the First day of January but later when they are declared elected." Rankin v. Jones, 224 Ark. 1001, 278 S.W.2d 646 (1955). This occurs during the first week of the legislative session.
Amendment 37 raised the salaries of the state executive officers and included the Commissioner of State Lands in its enumeration of executive constitutional officers. The language of Amendment 37, § 1 paralleled the language of original art. 6, § 1 (see footnote 1, supra), the only change being to add the Commissioner of State Lands alongside the enumerated officers instead of mentioning the office separately at the end as being within the discretion of the General Assembly. The Commissioner of State Lands, however, is not mentioned in art. 6, § 3 of the Constitution, reproduced above, which governs the commencement of the terms of executive constitutional officers. As noted in Rankin v. Jones, supra "[t]he argument then is that, since Amendment 37 adds the Commissioner of State Lands to those already mentioned in Article 6 Section 1 of the original Constitution, it follows that Section 3 of Article 6 was also amended to include the Commissioner of State Lands or, to the same effect, that it was the intention of the authors of Amendment 37 [as well as those voting thereon] to make the Commissioner of State Lands subject to the provisions of said Section 3 just the same as the Governor and the other officers mentioned therein." The court in Rankin v. Jones rejected this contention and held that what is now A.C.A. § 21-1-102 still controlled the term of office of the Commissioner of State Lands and set the beginning of the term at January 1, not later during the first week of the session, when the terms of the other executive officers begin.
Amendment 37, § 1 provided that: "The Executive Department of this State shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General and Commissioner of State Lands, all of whom shall keep their offices at the seat of Government, and hold their offices for the term of two years and until their successors are elected and qualified."
You state that you are aware of the decision in Rankin v. Jones about the effect of Amendment 37 on the question, but "cannot find any similar decisions as to the effect that Amendment 56 and Amendment 63 may have had on the provisions of A.C.A. § 21-1-102 as they relate to the term of office for the Commissioner of State Lands.
In my opinion nothing in Amendments 56 or 63 change the decision in Rankin v. Jones or the continued effectiveness of A.C.A. § 21-1-102.
Section 1 of Amendment 56 and Section 1 of Amendment 63 provide respectively as follows:
The Executive Department of this State shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands, all of whom shall keep their offices at the seat of government, and hold their offices for the term of two (2) years, and until their successors are elected and qualified.
The Executive Department of this State shall consist of a Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General and Commissioner of State Lands, all of whom shall keep their offices at the seat of government, and hold their offices for the term of four (4) years, and until their successors are elected and qualified.
Neither of these provisions has any bearing on the date set as the beginning of the term of the Commissioner of State Lands. As stated in Rankin v. Jones, supra:
The inescapable fact is that Amendment 37 did not mention Section 3 of Article 6 and does not contain any language which positively affects said Section 3, and we know of no urgent reason why we should at this time read into Amendment 37 language which it does not contain.
It is my opinion, similarly, that neither Amendment 56, nor Amendment 63, nor for that matter Amendments 70 and 73, which contain similar language, have any bearing on the date set for the beginning of the term of the Commissioner of State Lands. Arkansas Code Annotated 21-1-102 is the only law that speaks to this point. It is still controlling in my opinion.
Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:ECW/cyh