Montana Attorney General Opinion 15-275

Opinion No. 275 Legislative Assembly-Appropriations -Warrants-Common School J'e.'11111r nent Fund-Refunds-State Land Board-State Auditor. HELD: Since the legislature has ne,-- cr made any appropriation to meet the situation created b~' Sec. 116, Chapter 190 OPINIO:'\S OF THE ATTORNEY GENERAL c,o, Laws of 1927, the state auditor may not draw n warrant against the com- mon school permanent fund to refund money paid from the proceeds of tim- her cut on land incorrectly sun-eyed as under the jurisdiction of the State Land Ronrd. .July 15, 1933. 'Ye have yonr letter which in pnTt is as follows: "The State Land Board has filed a claim with the Auditor of the State of Montana pertaining to refunding of money out of the Common School Permanent Fund. "From the claim it appears as if nn incorrect survey led to the cutting of tim her on limd not under the juris- diction of the Board. The proceeds of the timber so cut were eyidently de- posited in the Common School Perma- nent Fund and the Board is now en- <lea "oring to correct the error by re- funding the money to the owner of the timber. "The Board takes the position that S'ection 116, Chapter 60, Laws of 1!l27, gives it due authority to issue a claim n:;ainst the Common School Perma- nent Fund for the purpose of making the refund. * • • "Kimllv advise as to the constitu- tionnlity· of Section 11C" Chnpter c,o, Laws of 1!Y27, where the same is being urged for the purpose of withdrawing' money from a Permanent School Fund deposited with the State Treasurer and whether the State Auditor has lawful right to issue a warrant on a claim drawn by the Land Bonrd ngainst such a fund." Section 116, Chapter 60, Laws of 1927, reads as follows: "If any money has been erroneously paid or shall herenfter be erroneously paid to the state on any permit, lease. certificate of purchase, patent or lonn or in any other transaction, it shall be the duty of the State Board of Land Commissioners to cause such money erroneously paid to the state to be refunded to the person entitled thereto fro'm the proper fund." In its purpose and scope this section is not unlike Section 2222, Revised Codes Hl21. In discussing the latter in the case of First Xational Bank Y. Randel'S County, 85 Mont. 450, the Su- preme Court said: "That portion of the section which ns~umes to prO\-ide for a refunding" (to the county) "of the state's share of taxes returned to the taxpnyer is in- operatiYe. As we have seen. the Code Commission eliminated the phrase, 'up- on the approval of the amount by the Board of Examiners;' from the orig- inal text. Whether this was because the approval of the state board of ex- aminers was· implied is a mere specu- lation, but neither the Iluditor nor the board could lawfully follow the stat.- utory direction in the absence of legis- latiYe appropriation. (In re Pomeroy, 11 Mont. IH), 151 Pac. 333). .. 'All taxes levied for state purposes shall be paid into the state treasury. and no money shall be drawn from the treasury but in pursuance of specific appropriations made by law.' (Const .. Art. XII, Sec. 10.) 'No money shall be paid out of the treasury except upon appropriations· made bylaw, and on warrant drawn by the proper of- ficer in pursuance thereof, except.·in- tere~t on the public deht'. (Id., Art. V. Sec. 34.)" The legislature has neyer made any nppropri,ation to meet the situation created by said Sectioll 116. 'Ye, there- fore, eonsider the case cited determinn- ti,e of the question, as the rule aJl- plied there Illay with equal propliety he· applied here, and advise that fhe warrant be not drawn.