Montana Attorney General Opinion 15-248

Opinion No. 248 State Treasurer, Publication of RepOl-t -Report-State Purchasing Agent -Govemol'-Appropriations -Legislative Assembly. HELD: ;\'0 dut~' rests upon the State Purchasing Agent to let the contract or upon the GO"ernor to cause to be puh- lished the State Treasurer's quarterly report when the legislative assembly fails to appropriate any money to pay the cost of such publication. June 21, HmH. According to your letter to us of rl'- cent date you have ad"ertised for bids for the publica tion of the quarterly rl'- port of the State Treasurer. and desire to know whether or not, "'hen the biel!'; are opened on the 5th of July. vou should enter into a contract in 'behalf of the State of Montana, with the low- est responsihle bi(hler. or at a II. for SHch publication. Under the provisions of Spction 13 of Article XII of the Constitution and of Section 1, Chapter 6, Laws of 1925, thf' Governor must cause the quarterly re- pOrt of the State Treasurer to be puh- lished in II newspaper printed at thl' seat of government. Section 2 of said Chapter 6 makes it the duty of tllP State Purchasing Agent to ad,ertise an- nually for hids for such publication, and Section 3 th~reof requires him to let the contract therefor. subject to' tlIP approval of the State Board of Ex- aminers, to the lowest responl"ihle bi(l- (ler, for a pel'iod not longer than onl' year and at a priee not to l'XCf'etl ~ 2000. ()(). Contrary to custom. the legi!';latin~ assemhly at its last session failed to appropriate any money for the publi- cation of the state treasurer's quarterl~' reports in the fiseal year beginning July 1, 1933, and the fiscal year begin- ning .July 1, 1934. Must the State Purchasing Agent let the contract to, and must the Governor cause the treasurer's qua,rterly report to be published in the newspaper which is the lowest responsible bidder, not- withstanding the. fact that there is no fund out of which payment for the publication can be made '! Assuredlr not. Could the writ of mandate he suc- cessfully im'oked against the Governor or the State Purchasing Agent for 1"(>- fusing to act under the circuD;lstances here existing? We do not think so. Wihile there is authority to the con- trary, it is generally held that a public body wiII not be required to do some- thing which is not possible of accom- I)lishment through ",ant of funds anti inability to raise them, and the same principle applies to a public officer. (38 C. J. 556, 806.) OPIl\'IOXS OF THE ATTORNEY GENERAL 173 The blame for failing to carry out the command of the Constitution anll la ws eannot, in this instan('e, he laid at the door of either the GOyernOr or State Purehasing Agent.