(dissenting). I concur in much of what is said by the Presiding Judge in the majority opinion as to the power of *627the Legislature to create a new office and impose the duties thereof upon one or more of the constitutional officers, and, if the duties required in the new office are not germane to the 'duties of the constitutional office, the Legislature may lawfully pay for the services rendered in the new office (State v. Roddle, 12 S. D. 433, 81 N. W. 980) ; but I do not concur in the conclusion of the majority of the court that the Attorney General, when acting as a member of the 'Securities 'Commission, was filling any other office than that of Attorney General. I do1 not concur in the conclusion that the duties imposed upon the Attorney General as a member of the Securities Commission are not germane to the office of Attorney General. The statute provides that the commission shall consist of certain state officers, including the Attorney General, and creates one new office, that of secretary of the Commission, and provides that he shall receive a salary of $3,600 per year; that he shall take an oath of office and file a bond. There is no provision in the law for the other members of the Commission filing a bond or taking- an oath of office. The fact that no provision is made for the giving of a bond by any of the officers excepting the secretary indicates that the Legislature did not intend to create any office except that of secretary. Whether there was or was not a new office created is not very important. The real question is: Were the duties imposed upon the Attorney General germane to his office? It was argued in behalf of the Attorney General that by implication the Legislature was prohibited from imposing duties upon the Attorney General other than those required under the common law.
“It is a maxim with the courts that statutes in derogation of the common law shall be construed strictly — a maxim which we fear is sometimes perverted to the overthrow of the legislative intent; but there can seldom be either propriety or safety in ’ applying this maxim to 'Constitutions.” Cooley’s Con. Lim. (5th Ed.) p. 74.
The duties of “the Attorney General shall be as prescribed by law.” Section 13, art. 4, Constitution.
When the framers of the Constitution provided for an Attorney General, it was undoubtedly intended, that he should be the law officer of the state; that it could ask and require from him any service reasonably within the limits of those usually rendered *628by an attorney at law, or such service as an attorney usually accepts from a private employer. To properly understand and construe the statute providing for a State Securities 'Commisison, and defining its duties, it is necessary to understand the conditions which brought it forth. Such statutes have been enacted in many states. They are usually known as “Blue Sky Laws.” Great frauds were being perpetrated upon the public by the organization of numerous corporations .with high-sounding names and beautifully engraved certificates of stock and ,'bonds, purporting to ■be engaged in all kinds of commercial and industrial enterprises, with misleading and false statements as to assets, earnings, etc. It was for the purpose of preventing the sale of such fraudulent certificates, bonds, etc., that the statute under consideration was enacted. The purpose of the law is shown by the title to the first statute enacted:
“An act entitled, 'An act to prevent fraud in the sale and disposition of stocks, bonds or other securities sold or offered for sale within the state of South Dakota, providing for the enforcement thereof, and creating a State Securities Commission.” Chapter 275, Laws 1915.
The last statute enacted in the emergency clause recites:
“Whereas a large number of enterprises are being organized at the present time and whereas the present law is inadequate and whereas this statute is necessary for the immediate preservation of the safety and support of the state government and its existing institutions, an emergency is hereby declared to exist, and this act shall take effect and be in force from and after the date of its passage and approval.” Chapter 82, Second Special Session Laws, 1920.
A bank or trust company that had been defrauded by purchasing the class of paper regulated by the statute and which wished redress would at once turn the matter over to an attorney for investigation. If such bank or trust company was about to make investments, and its suspicions were aroused as to the fraudulent character of the paper offered, it would undoubtedly at once turn the matter over to its attorney for investigation. It is a matter of general knowledge that within re'céht years, when there was great scandal as to the fraudulent management of the three greatest insurance companies in the nation, the man selected *629to investigate the matter was one of the nation’s greatest attorneys whose name it is not necessary to mention. The result shows the wisdom of his selection. One of the present Justices of the Supreme Court of the United States performed his most notable service as an attorney at law in the investigation of the internal affairs and management of corporations, to the great advantage of the public, as well as to the stockholders and creditors of the corporations. A large percentage of the business transacted by attorneys at the present time is of a class that was unknown to attorneys in the days of Daniel Webster and Rufus 'Choate. Lawyers are- becoming less the advocate and more the counselor. They are using less of their time to get their clients out of trouble, and more to keep them from getting into trouble. They are spending less time trying cases in court, and more time in keeping their ■clients from having cases in court to' be tried. If the state can demand the services of the Attorney General in prosecution of persons for perpetrating frauds within the state, it may require his services to prevent the perpetration of frauds within the state, whether such frauds consist in obtaining money by false pretense, whether by bank checks, drafts, forged instruments, counterfeit money, or.-by the sale of beautifully engraved certificates of stock in corporations with captivating names.
The Legislature is to be commended for the wisdom shown' in selecting appropriate state officers to act as the Securities Commission. There is no part of the duties of that Commission that is not appropriate to some one of the officers selected. It will not be presumed that the Legislature intended that the Attorney General should act as accountant or the accountant to act as an attorney. The statute does not provide what part of the duties of the Commission is to be performed by the Attorney General. It is to be presumed that the Legislature intended that each member of the commission should; perform the duties appropriate to his office. If the entire duties of the Commission were to be performed by or under the supervision of one person, who- would be better qualified than an attorney at law? The state had a right to require the Attorney General to act upon the 'Securities Commission as a part of his duties. It is not probable that the Legislature intended or expected the Attorney General to devote any more of his time to the state than he did prior to the enactment *630of thé statute creating the Securities Commission. It is a matter of general knowledge that at no time since the adoption of the Constitution could the Attorney General personally do all the work of his office; that for many years he could not do more than give the office general supervision, and give his personal attention to some of the most important business; that the first state Legislature provided! an assistant for him. If the salary provided by the Constitution for constitutional officers can be increased by the device of forming a commission, imposing upon it part of the duties of a constitutional officer, making such officer an ex officio member of the commission and paying- him an additional salary, the constitutional provision fixing and limiting the salary of constitutional officers is less than a rope of sand. It is a mere myth.
Suppose the Legislature should create a commission composed of the Attorney General, the Secretary of State, and the State Auditor; impose upon that Commission a part of the legitimate duties of each of the officers, or even all of the duties of each of the officers; each could say that he was entitled to additional pay because some of the d'uties of the Commission did not pertain to his particular office. To establish such a precedent is dangerous in the extreme. It is offering a direct reward for the creation of new commissions with overlapping and conflicting powers and duties that will lead to complications, confusion, and shifting of responsibility, and may cause serious, losses and expensive litigation as to the liability on official bonds. The court should not establish such a precedent unless the language of Constitution and statute is such that no other reasonable construction can be given.
A peremptory writ of prohibition should issue.
PART II.
RICE, J.The question presented by this proceeding is the right of Fred L. Shaw, the Superintendent of Public Instruction, to receive $600 per year as executive officer of the State Board of Education.
The state contends that the statute authorizing the payment is unconstitutional, and an attempt to increase the salary of the Superintendent of Public Instruction contrary to the constitutional inhibitions. It is contended on behalf of the defndant that the *631Legislature, by the statutes hereinafter referred to, created a new office to be filled -ex officio by the Superintendent of Public Instruction, and that the duties of the new office are not germane to .the office of the Superintendent of Public Instruction. 'Chapter 227, Laws 1917, is entitled:
“An act to accept the benefits of an act passed by the Senate and House of 'Representatives of the United States of America in Congress assembled to provide for the promotion of vocational education and to establish a State Board of Education for that purpose.” • ■
Section 1 is a formal acceptance of the- provisions made by Congress for the promotion of vocational education. Section 2 is in part as follows:
“To this end there is hereby created the State Board of Education to consist of the Superintendent of Public Instruction, the president of the University of 'South Dakota, the president of the State College of Agriculture and Mechanic 'Arts and four persons appointed by the Governor, two of whom shall be members of the faculty of a state normal school, one a superintendent or principal of a city or town school and one a county superintendent.”
It also provides that the appointed members of the Board shall hold their office for four years. Section 3 provides that the Board shall hold meetings at the capital in July and January, and. such special meetings as shall be deemed necessary. It defines the duties of the 'Superintendent of Public Instruction.
“The Superintendent of Public Instruction shall be ex officio president of the Board and shall furnish all necessary record books and blanks for its use.”
It also provides that the members of the State Board of Education shall receive no salary for their services thereon, but that they shall be reimbursed for' the actual expenses incurred in the performance of their duties.
Section 4 further defines the duty of the Board. Section 5 designates the State Treasurer as the custodian of the funds paid to the state from the federal appropriation. Chapter 227 is carried into the Revised Code of 1919 without material change, and appears as sections 7406 to 7410, inclusive.
The Legislature in 1919, by chapter 184, amended section 7409 by further defining the duties of the Board, and by implica*632tion further defines the duty of the Superintendent of Public Instruction as follows:
“The State Board of Education shall have authority to appoint upon the recommendation of the Superintendent of Public Instruction such officers and assistants a|, he may deem necessary to properly administer the federal act and this act of the state of South Dakota. * * * The State Board of Education shall, on or before the last Tuesday in July authorize the Superintendent of Public Instruction to certify to the State Auditor the amount apportioned as state and federal aid to each school approved under the provisions of this act.”
Sections 7409 and 7410 were further amended by the Legislature in 1921, chapter 215, and provide:
“That the executive officer of the State Board of Education shall receive a salary of $600 a year, * * * payable in twelve monthly installments.”
It is contended on behalf of plaintiff that the last statute quoted contravenes the following provision of the Constitution:
“The Superintendent of Public Instruction shall receive an annual salary of $1,800.00.” Section 2, art. 21, Constitution.
“He shall receive no fees or perquisites whatever for the performance of any duties connected with his office and it shall not be competent for the Legislature to increase the salaries of the officers named including- the Superintendent of Public Instruction.” Section 2. art. 21.
“Nor shall the compensation of any public officer be increased or diminished during his term of office.” Section 3, art. 12.
[1] The real question involved in this case is: Was the Superintendent of Public Instruction, when acting as executive officer of the State Board of Education, acting as Superintendent of Public Instruction and discharging the duties imposed upon him as such officer? In plain terms the Legislature has required him, as Superintendent of Public Instruction, to act as such executive officer.
“The powers and duties of the * * * Superintendent of Public Instruction * * * shall be as prescribed by law.” Section 13, art. 4, Constitution.
[2] As to whether the Legislature created a new office when it created the State Board of Education is not important. The *633Legislature has full power to define and fix his duties, with an implied inhibition against requiring 'him to perform duties that are not germane to his office. If the duties imposed pertain to and are in furtherance of public education and instruction, they are germane to his office, and the 'Superintendent of Public Instruction is under an implied obligation to give the state the benefit of his services in discharge of the duty imposed.
[3] The kinds or class of public instruction which the state will provide rests wholly with the Legislature. If it is deemed advisable by the lawmaking power that the state give instruction as to vocational occupations, it has full power to do so, and it can require from the Superintendent of Public Instruction his assistance or superintendence of such instruction. It. is no concern of his as to the source from which the funds for 'carrying on vocational education are derived — whether from the sale of school lands, the collection of fines and penalties, by direct taxation, voluntary donation, or otherwise — so long as the instruction is provided for by the state for the benefit of the public, it is public instruction, and germane to the duties of the Superintendent of Public Instruction. If by the device of creating a commission and making a constitutional officer a member thereof, and imposing upon the commission duties germane to the constitutional officer, the Legislature can provide a salary in addition to that provided by the Constitution, it can take each part of the statute defining the duties of the Superintendent of Public Instruction, create a commisison, make the Superintendent an ex officio officer thereof, give the office a new title, pay him a salary, and annul the constitutional provisions heretofore quoted. The .Superintendent of Public Instruction as an ex officio officer would be rendering the same service to the state that he formerly performed as Superintendent of Public Instruction. The only actual change would be the title of the office and the salary paid.
[4] It is a fundamental principle of law that the granting of a power carries with it by implication the right to do all things necessary to the exercise of the power granted. A prohibition carries with it implications as broad as those that go with the granting of a power. The Constitution prohibited the Legislature from increasing the salary of the Superintendent of Public Instruction not only directly, but by implication; from doing so in *634any manner whatever. The wisdom of the constitutional provisions, the adequacy or inadequacy of the salary, are not before the court.
A peremptory writ of prohibition will issue.