Montana Attorney General Opinion 15-428

Opinion No. 428. Embalmers' License Fund-CIaJIlI fOJ' Expenses of Representative to Con- vention. HELD: The Embalmer:>' License Fund is really a trust fund in which the public has no direct interest: and A warrant may be legally drawn thereon to pay the expenses of one who is not a representative of the State Board of Health and not on the State payroll, but who acted in a personal cnpacity representing the State Asso- ciation of Embalmers, a private asso- ciation, as a representative to the Em- halmers Convention held outside the State of Montana. .January 25, 1034. So much of your communication to us of recent date as is relevant here is ns follows: "Your opinion is respectfully re- quested as to whether a warrant may he legally drawn from the Embalm- ers License Fund for nn amount of $171.25 on a claim wherein it is set forth that the expenditures are in ex- cess of $4.00 per day. n nd shaJl in- clude the cost of sending a representa- ti,-e to the Embalmers Convention held outside the State of Montana. "The claim is filed by ol!e not a representative of the State Board of Health or one on the State payroll. but by one who acted in a personal capacity representing the State Asso- ciation of Embalmers, a prb-ate asso- ciation. "The 1933 Legislative Assembly ap- propriated from the Embalmers Li- cence Fund 'all fees and earnings to carry out the provisions of Section 2456, R. C. M. 1!)21,' "Section 2456, R. C. M. 1!l21, pro- ,-ides 'The State Board of Health shall make al1needful rules and regulations for the transportation of dead bodies, ...... and to this end they may estab- lish a system of licensing' embalmers Hnd undertakers.' "It appears that. pursuant to Sec- tion 2456. supra, the State Board of Health has createcl and established a board to be known as the State Board of Embalmer's of the State of Montana (Regulation 1, State Bmnd of Health governing embalming. transportation of dead, and rel,'istration of deaths), "It would further appear as if one member of the State Board of Health is a member of the so created Em- balming Board, and two memhers of the said Board are appointed to mem- bership on the Board by the memhers 294 OPIXIONS OF THE ATTORXEY GENERAL of the State Board of Health (Regula- tion VII, Supra)_ "The monies received from embalm- ers licenses is to be transmitted to the State Treasurer and credited to the licensed Embalmers l!l.md. and it appears that the said fund 'shall be used for the purpose of· defraying ex- penses of the State Board of embalm- ers, including the expenses of a dele- gate ,to the annual meeting of the Na- tional Funeral Directors Association and membership in the same, and on recommendation of the licensed Em- balmers Board, may be used for edu- cational purposes' (Regulation XI, Supra). "It does not appear as if the li- censed Embalmers Fund was created by the Legislature, but was created by the regulations of the State Board of Health under the above cited regu- lations. • * • "The question then arises in this fund subject to Code provisions pro- viding for $4.00 per diem to those drawing per diem allowances from the State, and may it be spent under the regulations of the Board, and is the appropriation made by the 1933 Legis- lath-e Assembly broad enough to per- mit. of the expenditures as set forth in the regulations of the Board creat- ed by a Board." The legislature has authorized the State Board of Health to license un- der·takers and embalmers (Section 2456. Revised Codes 1921), but it has not undertaken to fix any license fee to be paid by undertakers and embalm- ers. Moreover, it has not attempted to confer any express power on the State Board of Health so to do. Indeed, the fixing of license fees or occupation tax- es i·s peculiarly a legislative function which cannot be delegated to any state board or bureau. (State v. Camp Sing, 18 Mont. 128; State ex reI. Carter v. Kall, 53 Mont. 162; 12 C. J. 839.) It appears the Embalmers' License l!'und, so-called, is made up of moneys voluntarily paid by persons seeking a license from the State Board of Em- balmers to engage in the occupation of embalming human hodies and of mon- eys annually paid by persons who reg- ularly follow such an occupation. The deposit is really a trust fund in which the public hflls no direct interest and need not have been covered into the state treasury at all, and the proviSO to Seetion 193, Revised Codes 1921, may well apply to the disbursement of the same. (State ex reI. Koch v. Bar- rett. 26 Mont. 62; State ex reI. Sher- man v. Pape, 174 Pac. 468; State v. Board of Regents, 264 S. W. 698; Riley v. Forbes, 227 Pac. 768; State ex reI. Ledwith v. Brian, 120 N. W. 916; 59 C. J. 228, 240.)· It is true that the legislature in the regular sessions of 19i11 and 1933 took cognizance of the Embalmers' License Fund to the extent of appropriating therefrom in general terms all fees and earnings to enable the Board of Em- hal mel's' Examiners to carry out the proviSions of Section 2456. Revised Codes 1921. but we do not think that that materially affects the situation here existing. As the individual who filed the claim wa:> not at the time he incurred the ex- [lenses, on which the claim is based. engaged in any service to the State of :\:lontana, but was merely the represent- ative of the State Association of Em- halmers. it cannot be said that Chap- ter 40, Laws of 1933, halS any applica- tion. The fund being a trust fund created partly to meet a claim of the kind here presented. we advise that you draw a warrant upon the same for the sum of $171.25 in favor of the claimant. In so advising we assume, of course. that thc claim reached your office in the regu- lar way and has had the approval of the Board of Examiners.