Montana Attorney General Opinion 16-101

Opinion No. 101. State Highway Commission-High- way Funds-Funds. HELD: Chapter 18, Laws of 1927, applies only to expenditure of funds credited to the State Highway Fund and does not control the expenditure of moneys deposited in the State Highway Trust Fund. May 15, 1935. State Highway Commission The Capitol We have your letter of May 14, re- questing the opinion of this office: "As to whether the prOVisions of Chapter 18, Laws of Montana 1927, apply only to State revenue accru- ing to the State Highway Fund, or whether the statute also covers all construction funds made available for use by this department including not only State Funds, but also Fed- eral Aid, Federal Construction Grants and other funds. That is to say, in using the percentages set forth in Section 3 of the Act under discussion, should we apply those percentages only to State Funds available for construction or should we also apply them to all other funds made available to us for con- struction including Federal Funds?" Said Chapter 18, according to its title, is an Act "prescribing the man- ner and place in which the moneys of the State Highway Fund shall be ex- pended by the State Highway Com- mission for road construction pur- poses." (See also Section 13, Chap- ter 19, Laws of Montana 1927, as amended by Chapter 17, Laws of Mon- tana 1929.) The State Highway Fund was cre- ated by the legislature in 1921, Sec- tion 1799, R. C. M. 1921, providing:. "For the purpose of carrying out the provisions of this act, there is hereby created a state highway fund and a state highway trust fund. The state highway fund shall be credited with all moneys received for the use and purpose of the state highway commis- sion from the receipt or transfer of motor vehicle license fees, as provid- ed by law, or from other sources ex- cept as herein provided. The state highway trust fund shall be credited with all moneys received from the counties, and from the federal govern- ment or other agencies for expendi- ture by the commission in connection with the actual construction of speci- fic projects. All moneys in the hands of any state officer on the first day of April, 1921, shall be segregated by such state officer and credited to the respective fund to which it properly belongs as above defined. Hereafter all moneys collected for the state highway fund or the state highway trust fund as authorized by law shall be credited to such fund or funds by the state treasurer; provided, how- ever, that nothing herein contained shall prevent the state highway com- mission from recovering from the state highway trust fund moneys de- posited or paid into such trust fund OPINIONS OF THE ATTORNEY GENERAL 101 by counties and the federal govern- ment or other agencies, to defray the cost of engineering incident to the construction, supervision and inspec- tion of projects carried on under the direction of the commission." In considering Section 1799, supra, the Supreme Court of this state has held: "Section 1799, Revised Codes 1921, provides that for the purpose of carrying the provisions of the State Highway Commission Act into effect, two separate and distinct ·funds are created, one of which is designated as a 'state highway fund' and the other as a 'state highway trust fund.' The latter fund is credited 'with all mon- eys received from counties, and from the federal government or other agen- cies for expenditure by the commis- sion in connection with the actual construction of specific projects'; but the 'state highway fund' now receives all moneys collected by the state un- der the provisions of initiative meas- ure No. 31, adopted by the people at the general election of 1926 (Session Laws, 20th Session, 1927, p. 604). This Act provides that all moneys collected and deposited in the state highway fund shall be expended by the com- mission in the construction, recon- struction, betterment, maintenance, administration and engineering of the federal highway system of highways in this state, selected and designated under the provisions of the federal aid acts and amendments thereto." And again: "By the provisions of section 1799, supra, the moneys re- ceived from the federal government, which may be used by the state high- way commission for the purpose of carrying the state highway act into effect, are placed in a fund separate and distinct from the funds derived from the sources specified in the in- itiative measure, and the latter may be used for the purpose of carrying the state highway act into effect, un- hampered by the restrictive defini- tion contained in the federal act." (State ex reI. McMaster v. District Court, 80 Mont. 228, 260 Pac. 134. See also State ex reI. Mineral County v. State Highway Commission, 82 Mont. 63, 265 Pac. 1.) Now, it will be noted that there is no reference of any sort in Chapter 18, supra, in regard to the expendi- ture or disposition of funds credited to the "State Highway Trust Fund." In order, then, t.o construe this act to apply to said fund it would be ne- cessary to add the words "and the State Highway Trust Fund" to the express language used in the title of the act as well as the language used in Sections 1 and 2. This the courts will refuse to do. (State ex reI. Miner- al County v. State Highway Commis- sion, supra.) Therefore, it is my opinion that Chapter 18, Laws of Montana 1927, by its express language applies only to the expenditure of funds credited to the State Highway Fund and does not control the expenditure of moneys de- posited in the State Highway Trust Fund. (See Opinion No. 87.)