Montana Attorney General Opinion 15-580

Opinion No. 580 Constitutional Conventions-Appt'opria- tions-Legisla,tive Assembly-Dele- gates, Salaries and Expenses. HBLD: A genernl law authorizing the holding of conventions to ratify constitutional amendments and fixing the compensation of delega tes does not eonstitnte an appropriation, as required h~· the Constitution, for the expenses of such convention, its employees or 'lelegates. .July 27, 1934. You inquire as to the right of the Hoard of Examincrs to approve claims for mileage and per diem of delegates, and other expen!'<es of a convention to ratif~- the Eighteenth Amendment to the Constitution of the United States. Chapter 188, Laws of 1933, is a general statute whose pnrpose is stated in its title as follows: "An Act to Provide for Conventions to Hatify Proposed Amend- ments to the Constitution of the United States." Its terms do not limit it to a convention to ratify the Eighteenth Amendment, but to rntify any nmend- ment which may be submitted to the "everal states and require ratification by conventions. No appropriation is contained therein unless same is authorized by Section 8 thereof which reads as follows: "Each delegate shall receh'e mileage and per diem a~ provided by law for members of the Legislative Assembl)'. The Secretary nnd other officers shall receive such compensation as may be fixed by the con,ention." The Consti- tution of Montana provides: "No money shall be l)aid out by the treasury ex- cept upon nppropriations made by law, and on warrnnt drawn b~- the proper officer in pursuance thereof. except. in- terest on the public debt." (Sec. 34, Article V.) "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 hy law." (Sec. 10, Art. XII.) The decision of the question submitted is therefore depend- ent upon the question of whether or not an appropriation to meet the ex- penses has in fact been made. The Supreme Court of Montana has passed upon a number of questions in- volving appropriations, among which the following may be cited. It has been held in the case of the salary of the Secretary of State where same is fixed by thc Constitution of the state, that the determina tion of same in the con- stitution constituted an appropriation and no further appropriation was nec- essllI·~-. (State ex reI Hotwitt v. Hick- man. 9 Mont. 370.) 'Where the act cre- ating' a Code Commission fixed the tota I compensation of each commis- sioner at $4000.00 and authorized the auditor to draw his warrant for such salaries of the commission to be paid hy him out of any funds not other- wise appropria ted, such statute was held to consti tute a ,-alid appropria tion for the compensation of a commis- sioner. (State ex reI Wade v. Kenney, 10 Mont. 485: followed in State ex reI ~{addox '-. Kenney, 10 Mont. 533.) 'l'he same act which created the Code Com- mi!'sion authorized -the employment of a clerk. who shall receive for his sery- ices $150.00 lX'r month. "The salan' of the clerk of such commission shall be paid monthly hr the auditor upon vouch- ers to he approved by the chairman of the commission." It was held that no ap- propriation had been made for -the pay- ment of the salary of the clerk. (State ex reI Blackford y. Kenney, 10 Mont. 496.) This decision was based upon the OPINIOXS OF THE ATTORXEY GEXERAL 403 case of State ex reI Journal Publish- ing Co. v. Kenney, 9 Mont. 389. Where a statute provided that. as to money which had been deposited with the sta te treasurer by virtue of an escheat. an action might be brought by a party claiming to be entitled to same and upon proof the court might render a judgment against the State of ~rontana for the amount found to be due and that the auditor should draw his warrant on the treasury for the payment of the same, the act contained 110 specific appropriation and it was held that no appropriation was made and that the claim could not be paid. This was held although the validity of the claim had been approved and its payment authorized by statute. The following statement is found in the opinion: "There appears to be no ob- jection to the statute insofar as it authorizes the petitioner to establish his right to the property as a claim against the state. which in equity and good conscience it ought to discharge, leaving to subsequent legislative as- semblies to provide by adequate ap- propriation for such claims as they arise and are adjudicated." (In re Pomeroy, 51 Mont. 119, 126.) The rule is recognized that appro- priations upon the general fund must be definite and certain although the law which contains the appropriation may be so worded that a subsequent mathematical calculation is required to determine the amount of the appropria- tion. (State ex rei Toomey vs. State Board of Examiners, 74 Mont. I, 9.) It is to be noted that the number of days for which the delegates to and employees of these com'entions are to receive compensation is indefinite, the statute stat~ng that "Each delegate shall receive mileage and per (liem as provided by law for members of the legislath'e assembly." It is further to be noted that the legislative assembly not only fixes its compensation per (liem and mileage by statute, but, that it also makes specific appropriations at each session to coyer these expendi- tures. From the cases cited we must con- clude that a general law authorizing the holding of conventions to ratify constitutionn I amendments and fixing the compensation of delegates does not constitute nn appropriation as required by the constitutional provisions quoted herein. Therefore, the Board of Ex- aminers would not be authorized to approve and order paid the expenses of such convention, its employees or delegates. Attention is directed to Section 241, R. C. M., 1921, which provides that the Board of Examiners may audit claims where no appropriations for same have been made and on such approval shall transmit the claim to the legislative assembly with a statement of their approval.