Montana Attorney General Opinion 15-437

Opinion No. 437 County Commissioners-Deputies of County Officers-Salaries. HELD: The minimum salaries for chief deputies and deputies of countr officers are fixed by Section 48i3, R. C. M., 1921; Section 48i4, R. C. M., 1921, as amended, permits county commission- ers to fix salaries of deputies where same are not fixed by law, provided such salaries shall not be fixed at more than 80% of the salary of any officer whose deputy they may be; Therefore, any salary of any chief deputy or deputy fixed by the county commissioners between these limits is a legal salary. February 1, 1934. You inquire as to the maximum sal- aries for chief deputies, deputies and bookkeeper in the offices of county clerk, county treasurer, county asses- sor and clerk of the district court in a county previously in the third class. now reduced to the fourth class. . Revised Codes 4873 provides for dep- uty clerks at a rate of not less than $1650; for deputies for clerk of court, treasurer. and deputy assessor at a rate of not less than $1600. According to this statute the maximum is not 'fixed. Section 4874 Revised Codes, amended by Chapter 82, Laws of Montana, 1923. providing that the county commission- ers shall have the right to fix the sal- aries of deputies, contains the provi- sion that the salary of no deputy shall iJe in excess of eighty per cent of the salary of the officer. Section 48i3 fixes the minimum salaries of these officers; it does not fix the maximum. Section 4874, as amended, permits the county commissioners to fix the ~alaries of deputies where same is not fixed by law. As only the minimum is fixed by law, the salary of these dep· uties is not fixed by law. The only limitation which appears in 4874, as amended, as to regular deputies is that their salary shall not be more than eighty per cent of the salary of any officer whose deputy they may be. Therefore. if the commissioners have fixed the salary of these deputies and bookkeeper at $130 per month and the ::;ame does not exceed eighty per cent of the officer's salary, I can not see 302 OPINIONS OF THE ATTORNEY GENERAL that either the commissioners, the of- ficer, or the deputy who has fixed or receiyed these salaries has violated uny statute. This opinion agrees and may be read in connection with 12 Attorney's Gen- eral Opinions, 377, and 11 Attorney's General Opinions, 113. Your office may have reached a dif- ferent conclusion' on this pOint. Such conclusion could readily he reached hased upon dicta in the case of Mode- sitt v. Fluthead County, 57 ~iont. 21G. un opinion of the Attorney Genernl prior to the enactment of Chapter 82, Laws of 1923, 8 Attorney General's Opinions, 168, und on dictu in certain other more recent opinions of the At- torney General's office where this par- ticular question was not directly sub- mitted. When we consider this question di- rectly and base our opinion solely upon the statutes to be construed and con- sider only what was actually decided by the Supreme Court, we are forced to the conclusion herein reached. Opinion No, 438 Income Tax AdministJ'ation Fund- Common School Equalization Fund- Common School Interest and In- come Fund-AppJ'opriations -Legislative Assembly, HELD: A tax upon incomes is one of the constitutional methods of rais- ing revenue .. The Legislature, so long as it keeps within constitutional limits, is vested with exclusive power to determine how, when and for what purposes public funds shall be applied in carrying on the government. Since the income tax is certain to put far more into the Common School Interest and Income Fund and thc Common School Equalization Fund than will be taken out by the appropri- ution for general administrative ex- penses, there is no danger of infringe- ment of any constitutional provision. February 2, 1934. Your letter to us of recent date is in part as follows: "Your opinion is respectfully re- quested as to whether or not a war- rant may be legally drawn on the In- come Tax Administration Fund, Sym- hoI 2!)fl of the records of this office, as the fund is now set up in the office of the State Treasurer. "Section 32. Chupter 181, Laws of 1!l33 provides, 'There is hereby appropriated from the genernl fund of the State of Mon- tana, the common school interest and income fund and the common school equalization fund not otherwise ap- propriuted, the sum of Forty Thous- and Dollars ($40,000), or so much thereof as may be necessary for the purpose of paying the expenses in- curred in the administration of this Act in proportion to the distribution of taxes collected under this Act.' "It is apparent that the Legislature intended to appropriate the sum of Forty Thousand Dollars ($40,000) for the cost of administering this Act. This sum to be taken from the gener- ul fund, the common school interest und income fund, and the common school equalization fund. "As the records of this office now stand a total amount of Ten Thousand Dollars ($10,000) has been trans- ferred out of the common school in- terest and income fund and a like amount out of the common school equalization fund, a total of Twenty Thnsand Dollars ($20,000), which said Rum has been transferred into the Income Tax Administration Fund. "No question could be raised on funds taken from the general fund under the appropriation, and as the common school equalization fund is created from re\'enue from severn I sources, it probably could be applied to the use in question. However, thc question arises as to the removal of funds from the common school inter- est and income fund for the purpose in question ....... "Under the terms of the Constitu- tion of the State of Montana, Section 5, Article XI, it is made mandatory that 95% of all interest received from the school funds of the State and 95% of all rents received from the leasing of school lands and of all other in- come from the public school funds shall be annually apportioned among the several school districts, and the remaining 5% of all interest received from the school funds of the State