Letter Opinion 1970 No. 094

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                                                                   June 17, 1970
 
 
 
Honorable Gary Grant
State Representative, 47th District
12835 S.E. 160th
Renton, Washington 98055
                                                                                                               Cite as:  AGLO 1970 No. 94
 
 
Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on a question pertaining to a certain appropriation made to the state superintendent of public instruction by the 1969 legislature under the provisions of § 1, chapter 282, Laws of 1969, Ex. Sess.  The particular appropriation item to which you have referred was made for the purpose of providing funds to the state superintendent for distribution to local school districts in order to fund salary improvements for school district employees.  The appropriation reads, in material part, as follows:
 
            "General Fund Appropriation for Salary Increases:
 
            "PROVIDED, That it is the intent that $80,510,675 be available to the Superintendent of Public Instruction to be allocated for the school years 1969-70 and 1970-71 to local school districts, of which $72,017,866 is contained in this appropriation and $8,492,809 which is to be appropriated by the Forty-second Legislature, to be employed exclusively for the purpose of providing salary increases and to pay for related OASI and retirement costs attendant to such salary increases to all certificated personnel in average amounts of seven percent in 1969-70 over each district's average certificated salary level for 1968-69 and in average amounts of seven percent for all classified personnel over the district's average classified salary level for 1968-69 and an additional four per cent in 1970-71 over each district's average salary level for 1969-70 for all classified personnel and for all certificated personnel: PROVIDED That the salary increase required for 1970-71 for certificated and non-certificated [[noncertificated]]employees shall be based on the 1968-69 average salary for each class of employee improved by seven percent:  PROVIDED, That the Superintendent  [[Orig. Op. Page 2]] of Public Instruction shall establish rules and regulations to carry out the intent of the Legislature for the distribution of salary increase money provided for in this appropriation:  . . .
 
            ". . . . . . . . . . . . . $76,927,866"
 
            Your question is whether the state funds provided for by this appropriation may be used, either by the state superintendent's office or by a distributee school district, for any purposes other than salary improvements and attendant OASI and retirement payments.
 
                                                                     ANALYSIS
 
            This question, in our opinion, is clearly answerable in the negative.  As with any appropriation made by our state legislature, the essential function of this appropriation is simply to provide an authorization for the disbursement of funds from the state treasury in compliance with Article VIII, § 4 (Amendment 11) of our state Constitution, which provides:
 
            "No moneys shall ever be paid out of the treasury of this state, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within one calendar month after the end of the next ensuing fiscal biennium, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied, and it shall not be sufficient for such law to refer to any other law to fix such sum."
 
            In accordance with this constitutional provision, an appropriation act has been described by the Washington court, in State ex rel. Pub. Co., v. Lindsley, 3 Wash. 125, 127, 27 Pac. 1019 (1891), as being ". . . an authority from the legislature, given at the proper time, and in legal form, to the proper officer, to supply sums of money out of that which may be in the treasury in a given year to specified objects or demands against the state.  . . ."
 
            In Sellers v. Frohmiller, 42 Ariz. 239, 246, 24 P.2d 666 (1933), another court expressed this same point as follows:
 
             [[Orig. Op. Page 3]] "The general appropriation bill is not in the true sense of the term legislation; it is, as the language implies, merely a setting apart of the funds necessary for the use and maintenance of the various departments of the state government already in existence and functioning.  State v. Thompson, 316 Mo. 272, 289 S.W. 338.  . . ."  (Emphasis supplied.)1/ 
 
             The object of Article VIII, § 4 (Amendment 11) of the Constitution, supra, is to prevent expenditures of the public funds at the will of those having them in charge, and without legislative direction.  See, State ex rel. Peel v. Clausen, 94 Wash. 166, 162 Pac. 1 (1917), in which the Washington court, after so observing, went on to quote with approval from an earlier decision of the California supreme court as follows:
 
            "'Its object is to secure to the legislative department of the government the exclusive power of deciding how, when, and for what purposes the public funds shall be applied in carrying on the government (2 Opinions Attorneys-General, 670).  It had its origin in Parliament in the seventeenth century, when the people of Great Britain, to provide against the abuse by the king and his officers of the discretionary money power with which they were vested, demanded that the public funds should not be drawn from the treasury except in accordance with express appropriations therefor made by Parliament.'  Humbert v. Dunn, 84 Cal. 57, 24 Pac. 111."
 
            From the foregoing, it will be seen that Article VIII, § 4 (Amendment 11), must be taken to mean that funds appropriated for certain specified objects or purposes can be expended for those purposes and for no other.  Accord, State ex rel. Day v. Martin, 64 Wn.2d 511, 392 P.2d 435 (1964).  See, also, Dickinson, Auditor v. Clibourn, 125 Ark. 101, 187 S.W. 909 (1916); Grable v. Blackwood, 180 Ark. 311, 22 S.W.2d 41 (1929); Wells v. Childers, 196 Okla. 339, 165 P.2d 358 (1945); and McClelland v. Lewis, 40 Okla. 551, 139 Pac. 990 (1914).
 
             [[Orig. Op. Page 4]]    Likewise, in Nebraska, in the early and oft-cited case of State ex rel. Norfolk Beet-Sugar Co. v. Moore, 50 Neb. 88, 69 N.W. 373 (1896), the Nebraska court spoke at length of the English historical background of legislative appropriations, and then held:
 
            ". . .  Having in view the origin and history of appropriations as well as the general lexicographic meaning of the word, to 'appropriate' is to set apart from the public revenue a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object and for no other.  This definition cannot be too strict as applied to our own constitution containing the requirement that the appropriations must be specific.  . . ."
 
            This statement of the law has been accepted in our neighbor state of Oregon in Holmes v. Olcott, 96 Or. 33, 189 Pac. 202 (1920).  Under a Constitution (Article IX, § 4, Oregon Constitution) providing that "no money shall be drawn from the treasury but in pursuance of appropriations made by law," the Oregon court quoted with approval and applied the rule as stated by the Nebraska court in the Moore case, supra.

 
            In Webb v. Frohmiller, 52 Ariz. 128, 79 P.2d 510 (1938), the rule was stated as follows:
 
            ". . .  It is axiomatic that no money can be paid from the state treasury unless and except the legislature or the Constitution itself has made an appropriation therefor, and it can only be used then for the purposes specified by the appropriation.  . . ."  (Emphasis supplied.)
 
            Accord, McDougall v. Frohmiller, 61 Ariz. 395, 150 P.2d 89 (1944).
 
            Furthermore, in determining whether a particular expenditure comes within the scope of the purpose specified by an appropriation, a rule of strict construction is applicable.  Meyer v. Kansas City, 323 Mo. 200, 18 S.W.2d 900 (1929); State v. Weatherby, 350 Mo. 741, 168 S.W.2d 1048 (1943).
 
            Manifestly, the only objects or purposes specified in the particular appropriation item to which your question refers are ". . . salary increases and . . . related OASI and retirement costs attendant to such salary increases. . ."  [[Orig. Op. Page 5]] for ". . . all certificated personnel . . . and all classified personnel . . ."  In addition, it will be noted that the legislature has expressly stated that the appropriated funds are to be "employed exclusively" for these purposes.
 
            Therefore, again, our answer to your question is unequivocally in the negative.
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
PHILIP H. AUSTIN
Assistant Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, also, 42 Am. Jur., Public Funds, § 43.