IN RE

STATE REVENUE AND PAYMENT OF APPRO

PRIATIONS.

Session Laws of 1897, page 21, and 1899, page 21, providing for the order of payment of appropriations, in case of a deficiency of the revenues considered and construed.

A comprehensive review of the state finances.

State of Colorado,

Attorney General's Office.

Denver, Colorado, March 21, 1900.

Sir—I have the honor to acknowledge the receipt of the following official communication from your excellency:

"STATE OF COLORADO,

Executive Chamber.

DENVER.

HON. D. M. CAMPBELL,

Attorney General.

March 12th, 1900.

Dear Sir: The Act of April 14th, 1897, regulating the order of the payment of appropriations, provides inter alia, that where the available revenues for any fiscal year are not sufficient to meet all appropriations there shall be paid, first, the ordinary expenses of the legislative, executive and judicial departments, with interest on any public debt, and, second, appropriations for all institutions such as the penitentiary, the insane asylum, the industrial schools, and the like, where the inmates are confined involuntarily, the other appropriations being grouped in successive order.

By the Act of April 18th, 1899, $25,000 was appropriated from any money in the State Treasury for the purpose of constructing suitable buildings for a home for the State Industrial School for Girls, or for paying rent and other necessary improve

ments and appliances for the said School until the said buildings are completed. The said act also appropriates $5,000 for the payment of rents, and making necessary improvements and repairs upon such buildings as may be secured for the years 1899 and 1900, or until the fund therein provided for shall become available.

By section 3 of the act the Auditor is authorized to issue certificates of indebtedness, to draw interest at the rate of 6% per annum, for the payment of vouchers issued by the Board of Control, and drawn upon said fund for the purposes mentioned in section 2 of the act.

The lease heretofore held by the Board having control of this school expired on the 10th instant, and the owners of a part of the premises included in the enclosure are not willing to renew their lease, but have demanded possession of their property. The Board of Control has in view other and more desirable quarters, which can be obtained upon conditions quite favorable to the State, if payment can be provided therefor.

I am to-day in receipt of a letter from the Secretary making inquiry whether the appropriation provided for in section 2 is now available for the purpose of purchasing a home, and whether the Board may contract to purchase the land, paying a rental therefor until the appropriation can be obtained with which to purchase same. Also whether any part of the appropriation can be used to purchase an engine to make necessary improvements to provide a water plant for the premises.

To my mind the answer to these queries largely depends upon the larger question whether the appropriation made by section 2 [3] of the act of 1899 may be considered as an appropriation falling under the second class as provided by the act of 1897. I have therefore respectfully to request that you at once inform me:

First: Whether the appropriation of $25,000 in the act of April 18th, 1899, concerning the Industrial School for Girls, is one falling within the second class as provided by the act of 1897?

Second: Is this appropriation available only out of the revenues of 1899 and 1900, or is it a continuing appropriation?

Third: Can the State Auditor issue certificates of indebtedness against the same in whole or in part in payment of vouchers approved by the Board of Control, as provided in section 2, and if in part only, to what extent can same be issued?

Fourth: Under the statute can the Board of Control contract to purchase land for a permanent home, paying rental there

for until an appropriation can be obtained with which to purcase same?

I presume this question is not important if you should determine the entire appropriation to be at once available through the issuance of certificates by the Auditor.

I would also be pleased to have your opinion upon the inquiry whether the purchase of an engine to make necessary improvements for a water plant is within the scope of the appropriation.

I enclose you herewith the letter of Secretary Gabriel for your further information. I would be obliged if you can reply to this communication by Thursday next, as I may be required to leave the city shortly thereafter.

Very respectfully,

lows:

CHARLES S. THOMAS,

Governor."

The enclosed letter to which you refer is as fol

My Dear Sir: The Board of Control of the State Industrial School for Girls instructs me to write you to inquire if you can assist us in learning whether the appropriation provided for the State Industrial School for Girls by the last legislature (Laws 1899, p. 97, § 2) for $25,000 can be used for the purpose of purchasing a house now erected upon a certain tract of land, and if we may contract to purchase the land, paying a rental therefor until an appropriation can be obtained with which to purchase the same. And likewise if any part of the said appropriation can be used to purchase an engine to make the necessary improvements to provide a water plant for the said premises.

Any information that you may be able to give us or assistance rendered, will be very greatly appreciated.

Yours very respectfully,

JOHN H. GABRIEL,

Secretary."

The inquiries contained in your official communication and the accompanying letter present two principal questions: First, is the said appropriation of $25,000 now available for the purpose for which the appropriation was made; and, second, to what extent does the said act of 1899 (Session Laws of 1899, page 97) clothe the board of control with power to purchase or contract for a site, together with suitable buildings, for the use of said Industrial School?

Owing to the present condition of the state finances, and the fact that the Twelfth General Assembly passed, and the Executive approved, appropriation bills to the amount of more than $500,000 in excess of the estimated revenues of the state for the fiscal years 1899 and 1900, the question as to whether or not, as a matter of law, said appropriation of $25,000 is now available, can only be determined after a very careful consideration of the revenue system of this state and a construction of the acts of 1897 and 1899 (Session Laws of 1897, page 21; Session Laws of 1899, page 21), regulating the order of payment of appropriations, in the light of the constitutional provisions of this state as interpreted by our courts.

The following extended quotation is taken from an official opinion (In re Indebtedness of State Institutions) which I had the honor to render to your Excellency under date of July 5, 1899:

"The Constitution of this State contains the following pro

visions:

"The general assembly shall provide by law for an annual tax, sufficient, with other resources, to defray the estimated expenses of the state government for each fiscal year."

Section 2, Article X, Constitution.

"It is made the imperative duty of the legislature under this section to provide by law a tax sufficient to defray the estimated expenses of the state government for each fiscal year."

People vs. Board of Equalization, 20 Colo., 220, 230.

In re Appropriations, 13 Colo., 316, 326.

A command which has been honored more in the breach than in the observance in late years.

"The rate of taxation on property, for state purposes, shall never exceed four mills on each dollar of valuation."

Section 11, Article X, Constitution.

"No appropriation shall be made nor any expenditure authorized by the general assembly whereby the expenditure of the state during any fiscal year shall exceed the total tax then provided for by law and applicable for such appropriation or expenditure unless the general assembly making such appropriation shall provide for levying a sufficient tax not exceeding the rates allowed in section eleven of this article to pay such appropriation or expenditure within such fiscal year. This provision shall not apply to appropriations or expenditures to suppress insurrection, defend the state, or assist in defending the United States in time of war."

Section 16, Article X, Constitution.

Under the above sections of the Constitution it has been held by the Supreme Court of this state that, "The necessary appropriations to defray the expenses of the executive, legislative and judicial departments of the state government for each fiscal year, including interest on any valid public debt, are entitled to preference over all other appropriations from the general public revenue of the state, without reference to the date of their passage, and irrespective of emergency clauses."

In re Appropriations, 13 Colo., 326, 327,

328.

Parks vs. Soldiers' and Sailors' Home, 22

Colo., 86, 91.

Henderson vs. People, 17 Colo., 589, 590.

People vs. Board of Equalization, 20 Colo., 220, 230.

Report of Attorney General Jones, 1889

1890, pages 31-45.

Report of Attorney General Maupin, 18911892, page 32.