Montana Attorney General Opinion 15-394

Opinion No. 394 Athletic Commission-Public Officet·s- Public Fund-Necessary Expenses -Vetera.ns' Memorial Fund HELD: The tests for determining II'hether one is a public officer are: first, whether sO\·ereignt~· is the source (If authoritr: second, whether the du- ties are of a public character; and. third, whether the tenure is fixed and pCl'lllallent for a definite period fixed hy law. A member of the Athletic Commis- sion is a public officer. The Veterans' Memorial ]j'und is a public fund. 'Vhat are the necessary expenses of the commission is largely a matter within the judgment and discretion of the commission and of the State Board of Examiners. NOl-ember 22, 1933 'l'he claim of Mr. Jos. L. ~Iarkham. Chairman of the Montana State Ath- letic Commission, for $111.41 bas been referred to this office. Attached to the claim is the following memorandum: "1. Is this man a state officer or em- ploJ-ee'! 2. Is the fund a public fund? 3. Is he required by law to attend uwetings '!" The claim is for expenses of "11'. ~Iarkham's attendance at a meeting in l\finneapolis of the Xational BfJxing Associa tion. The fund referred to is the Veterans' Memorial Fund. In reply to question 1, "there are three principal tests for determining whether one performing duties of a puhlic nature is a public officer; • • • First, whether sovereignty • • 0 is the source of authority; second, whether the duties pertaining to the position are of a public character, that is, due to the community in its political ca- pacit~-; and, third, whether the tenure is fixed and permanent fOl' II definite period fixed by law." (l\iontgomer~- 1-. State. 18 So. 15n. See nlso: MechpIll on Public Officers, Sections 1. 4, G and 8; State of Montana v. Hawkins, 257 Pac. 411; State Y. Sheats. 83 Ro. 508; State Y. Board of B'xaminers, 52 l\:lont. 91.) The members of the Athletic COIll- mission are appointed by the Gm-ernor for fixed periods or terms of three ~'ears, and their duties are prescribed by statute and are of a public charac- ter and MI'. Markham, as a member of such commission, is therefore It pub- lie officer under the definition giyen ahoye, but as "chairman" of the com- mission, he is not a public officer in that capacity. (State v. Hall, 53 Mont. [,95). While the claim describes Mr. ~-larkham as a chairman of the com- mission that is of no consequence in passing upon the claim. 'l'he validity of the claim must he based upon his !l1ember~hip as one of the commission. The answer to question No.2 is dif- ficult to determine. The act creating til£; Athletic Commission, Sections 4551 to 4562, inclusive. as amelltIed h~' Chap- ter 103, Laws of 1927, provides that all expenses incurred by the commis- ~ion shall he paid out of the Veterans' l\if'motial ]jund. This fund is derinxl from a tax of 5 per cent on the gros!5 receipts from the slIle of tickets of ad- Illissioll to boxing bouts. (Section 4551)). It is a elose question as to whether the fund derived from this 5 I'er cent tax is a public fund or not. (See opinion Xo. 89, this volume) The H)27 amendment to the Athletic Com- mil"sion Act added Section 4562% and this section directed that a balance of ~1] ,O<J8.06 then in the Soldiers and O1'I:,\IO:'\S OF THI~ A'l'TOH:'\EY GE:,\ERAL 2i5 Sailors Homc Fund be trnnsferred to the Veterans' :Memorial Fund. 'l'he Holdiers and Sailors Home Fund was deriyed from the sale of bonds which were a geneml liability of the State, based upon the general taxing power of the State and. of course, such funds "'ere public funds. It is therefore our npinion that if there was any ques- tion about the fund of the Athletic Commission being a public fund be- tore the 1!)2i amendment, that amend- ment by mingling public funds with the fund produced hy the 5 per cent of admissions provided for in the orig- inal Athletic Fund Act stamps the en- tire fund as a public fund. In regard to question Xo. 3, there is no provi;<ion in the Athletic Com- IUission Act specif~'ing what expense t he Commission may incur and be re- imbursed for out of the Veterans' Me- morial Fund. Section 4551 pro\'ides that the members of the Commission shall sen'e without compensation hut lihall be allowed necessar~' expenses. 'Vhut the necessary expenses of the Commission are, we think, is largely It matter within the judgment and dis- cretion of the Commission and the State Board of Examiners. Section 4551 empowers the Commission to make such rules and. regulations as they liay deem expedient for the ad- ministration of their office. If the Commission has a rule or reg- ulation authorizing a memher to at- tend such meetings as that for which Ow bill of expense submitted was in- curred, we believe the statute auth- or:zes thc expenditure, but the fuml is a trust fund and should he dealt with in harmony with the principles governing a trust.