Montana Attorney General Opinion 15-501

Opinion No. 501 Fish and Game Commission-Licenses -Refunds-Appropriations -Legislative Assembly. HELD: Appropriating money for the purpose of enabling administrative of- ficers to make refunds in proper cases is a matter exclusively for the legisla- ture. The legislature haYing made no ap- propriation, setting apart a fund out of which the State Fish and Game Com- mission may make refunds where the licensee has purchased the wrong li- cense, or two of the same type of li- censes, the Commission was ann is without power to do anything in the premises. March 26, 1934. The following communication ad- dressed to you by the State Game 'Var- den has been referred to us for an appropriate opinion: "Occasionally there arises in this department the necessitJ' for making a refund for a license. A party may apply for the wrong license, through ignorance of the law, and then wish a correction made; or, as has hap- pened a few times, a licensee may misplace his original fishing license. purchase another, and then find his original license. "In the past, we have always had these matters adjusted by having the licensee make claim on this depart- ment for the amount involved. How- ever, the State Auditor now advises us that he cannot issue warrants for refunds. "In order to cope with this situa- tion, the Fish and Game Commission, at their meeting held January 12, set aside a fund of $50.00, to be called Account Number 119!)R-Refunds on Licenses. 'Vill ~'ou kindly advise us how we should handle this fund so that the necessary refunds may be made without conflicting with the rules of the State Auditor's office?" Section 34, Article V, of the Consti- tution, provides that "no money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof, except interest on the public debt," and section 10, Article XII, of the Constitution, pro- vides that "all taxes levied for state purposes shall be paid into the State Treasury, and no money sliall be drawn from the treasury but, in pursuance of specific appropriations made by law." In giving effect to these provisions of the Constitution the supreme court in the case of First National Bank y. Sanders County, 85 Mont. 450, held that that portion of section 2222, Reyised Codes 1921, which assumes to provide for a refunding to the county of the state's share of taxes returned to the taxpayer is inoperative. The state auditor could not lawfully follow the statutory direction in the absence of legislative appropriation. The authority to make an appropria- tion is vested exclusively in the legis- lature, and no commission or individual has any power whatever to expend pub- lic money without a legislath'e appro- priation therefor. (Holmes y. Olcot.t, 189 Pac. 202; 59 C. J. 235-240.) Is the State Fish and Game Fund, ont of which no "doubt the said sum of OPI:\!O:\S OF THl;; ATTORXEY GEi'\ERAL 343 $50.00 has heen set aside, subject to appropriation on the part of the legis- lature? That body has acted on the as- sumption that it is. Section 3670, Re- vised Codes 1921, as amended by sec- tion 1 of Chapter 53, LaW's of Hl::l3, provides: "All sums collected or re- ceived from the sale of hunting and fishing licenses 01' permits, from the sale of seized game or hides, or from fines, damages collected for violations of the fish and game laws of this state, from the appropriations, or received by the Commission from any other source, shall be turned over to the State Treas- urer, and placed by him in a special fund known and designated as the 'State Fish and Game Fund', provided, that out of any fines imposed by a court for the violation of this Act, the costs of prosecution shall be paid to the county where the trial was held, in any case, where the fine is not imposed in addition to the costs of prosecution. Said fund is hereby exclush'ely set apart and made available for the pay- ment of all salaries, pel' diem, fees, ex- penses and expenditures of every source and kind Whatsoever, authorized to be made by the State Fish and Game Com- mission under the terms of this Act, and said funds shall be expended for any and all such purposes, by said Commission, subject to the proper audit and allowance by the State Board of Examiners and by (to) appropriation hy .the Legislath'e AssemlJly of each session." At its twenty-third regular session the legislature appropriated $69,000.00 for salaries of administrative officers and employees and $31,300.00 for sal- aries of fish hatchery employees from the fish and game fund and so much of said fund as may be necessary and availahle for capital, repairs and other operations, for each fiscal year of the lJiennium extending from .July 1, 1H::l:3, to June 30, 1H35, inclusive. No other appropriations were made out of the fund. The act setting apart the above and other amounts provides that all appropriations contained therein shall be used for the purposes clesignated and for no other purpose. 'l'he legislath'e assembly having es- tablished the fish and game fund there cannot be any doubt that it is pri- marily under its control and subject to disposition only at its hands. (State v. Clausen, 229 Pac. 5; B. F. Sturte- vant Co. Y. O'Brien, 202 N. W. 324: Robb. v. Knapp, 171 Pac. 115G; State ,:. Stover, 27 Pac. 850; .Jackson v. Gal- let, 228 Pac. 1068; Edwards v. Chil- ders, 228 Pac. 472; Gamble Y. Velarde, 13 Pac. (2d) 559; Holmes v. Olcott, 189 Pac. 202; 59 C. J. 240. See also, nfcAdoo Petroleum Corp. v. Pankey, 294 Pac. 322.) The legislature, .then, having made no appropriation to meet the situation mentioned in the communication, it is our view that the Fish and Game Com- mission was and is without power to do anything in the premises. As has been already pointed out appropriating moner for the purpose of enabling ad- ministrath'e officers to make refunds in proper cases is a matter exclusively for the legislat.ure.