Montana Attorney General Opinion 15-89

Opinion No. 89 State Board of Dental Examiners- Funds-State Treasurer-Books amI Accounts-State Examinel·. HELD: Funds of the State Board of Dental Examiners need not be de- posited with the State Trea·surer. It is not the duty of the state exam- iner to examine the books and accounts of the State Board of Dental Examin- el's. February 25, 1933. You have asked for an opinion on the following questions: "Should the funds of the State Board of Dental Examiners be depos- ited with the State Treasurer? "Is it the duty of the State Exam- iner to examine the books and ac- counts of the State Board of Dental Examiners? "If an examination is made, should the Board of Dental Examiners pa~' a fee for such examination '3" I find no provision in the statutes which provides for the deposit with the state treasurer of funds of the State Board of Dental Examiners. The stat- ute seems to provide, however, for the rleposit of such funds with a secretary- treasurer to be elected or selected by the Board of Dental Examiners, who shall furnish such bond as the board may designate. Section 3106 R. C. M. 1921, among other things, pro,ides: "A board of dental examiners, to consist of five practicing dentists, is hereby created, whose duty it shall be to carry out the purposes and enforce the provisions of this act. * * "'" Section 3107 pro- vides as follows: ...... Said hoard shall at its annual meeting choose from its members a president. vice-president, secretary, and a judici- ary committee; it shall meet at least once each year, and as much oftener, and at such times and places, as may be necessary. The secretary and treas- urer sImI} give such bonds as the board may designate. '" .. *" Section 3114, among other things, states: " * * .. No part of the compensation or other expenses of the said hoard shall he paid out of the state treasury. The fees coming into the treasury of said board shall be paid out upon the warrant of the president and the secretar~' tllereof. in payment of tile compensation and expenses of said board in carn'ing out the provi- sions of this act. * .. *". I find no provision in tile statutes of the state to the effect that it is the duty of the state examiner to examine the books and accounts of the State Board of Dental Examiners. Section 210 R. C. M. 1921 as amend- edby Chapter 78 of the Laws of 1923, 11rovides for the examination of books llnd accounts of certain officel's, state and county, and contains tile following: * * • and all other state of- ficers and boards whether temporary or permanent, howe\'er created and for whatever purpose, hanng the con- trol, managemen t, collection or dis- bursement of any public moneys of any character or description". In 22 R. C. L. 222, S'ection 1, "public funds" are defined as "those moneys belonging to the state and its subdiyi- sions, or to a municipal corporation of II state". In 50 C .. T. 854, Section 40, under the title of "Public Funds", the following definition appears: "The term 'public funds' means funds belonging to the state or to any county or political subdivision of thE' state; more specifically taxes, cus- toms, moneys, etc., raised by the op- eration of some general law, and ap· propriated by the government to the discharge of its obligations, or for some public or governmental purpose: and in thi·s sense it applies to the funds of c\'ery political (livision of OPIXIONS OF THE ATTORNEY GENERAL 73 the state wherein taxes are le,ied for public purposes. ~'he term does not apI>ly to special funds, which are col- lected or yolunta rily contributed, for the sole benefit of the contributors, and of which the sta te is merely the eustodian." In State v. Olson, (N. D.) 175 N. W. 714, it was held that money which was accumulated in the manner prescribed by law for payment of claims allowed hv the workmen's compensation hu- reau, was ,a special fund and not a public fund. The court said it was in no sense public mone~·. Likewise in State ex reI. Sherman v. Pape, 174 Pac. 468. it was held that funds collected from assessments on private forest land for fire protection, are not public funds but are trust funds. The term "public funds" is also defined in a note in 40 Am. Eng. Ann. Cas. 12Sfl. In this note the authorities fire collected de- fining "public funds" to the same ef- fect. H is my opinion, therefore, that the money collected by the State Board of Dental Examiners and deposited with N1e secretary-treasurer selected by said hoard, is not public moneys within the meaning of the statute above referred to and that therefore there is no duty in the State Examiner to examine the hooks and accounts of such secretary- treasurer. 'l'hisbeing our opinion. it is unnecessary to answer the third Cjnpstion snbmitted ahove.