manner provided by Senate Bill No. 31 and Senate Bill No. 152. Respectfully submitted, D. M. CAMPBELL, Attorney General. By CALVIN E. REED, Assistant. To HON. ED. T. TAYLOR, Chairman Senate Judiciary Committee and IN RE PUBLIC LAND INCOME FUNDS. The Public School Income Fund cannot be appropriated for the purpose of paying the salaries and expenses of the office of Superintendent of Public Instruction. The salaries and expenses connected with the office of the State Board of Land Commissioners cannot be paid out of the Public Land Income Funds arising from congressional grants made for specific purposes. The Saline Land Permanent and Income Funds may be appropriated for such purposes as the legislature may direct. State of Colorado, Attorney General's Office. Denver, Colorado, February 16, 1899. Sir: I am in receipt of your official communication, under date of February 3, 1899, in which you re quest my official opinion upon the following ques tions: "1. Whether the salaries and expenses pertaining to the office of State Superintendent of Public Instruction may not le gally be paid out of the income of the Public School Income Fund. "2. Whether all that part of the salaries and expenses connected with the office of the State Land Board, which are now paid out of the general revenue, may not be pro-rated and paid out of the income fund from the various public lands under the control of said board." A determination of the questions submitted will necessitate an examination and inquiry into the origin and sources of the several grants of public lands to this state, the objects and purposes of those grants and the constitutional guarantees respecting the same. The school lands of this state are derived from the congressional grant to this state, contained in the Enabling Act: "The sections numbered sixteen and thirty-six in every township, and where such sections have been sold or otherwise disposed of by any act of congress, other lands equivalent thereto in legal sub-divisions of not more than one quarter section, and as contiguous as may be are, hereby, granted to said state for the support of common schools." Section 7, Enabling Act; 18 U. S. Stats. &t "That the two sections of land in each township herein granted for the support of common schools, shall be disposed of only at public sale and at a price not less than two dollars and fifty cents per acre, the proceeds to constitute a permanent school fund, the interest of which is to be expended in the support of common schools." Section 14, Enabling Act; 18 U. S. Stats. at Large, 474. An act of congress, approved April 2, 1884, gives "The State of Colorado the right to select for school purposes other lands in lieu of such sixteenth and thirty-sixth sections as may have been or shall be found to be mineral lands." U. S. Stats. at Large, 1883-1884, Chapter 20, page 10. "The public school fund of the state shall consist of the proceeds of such lands as have heretofore been, or may hereafter, be granted to the state by the general government for educational purposes; all estates that may escheat to the state; also all other grants, gifts or devises that may be made to this state for educational purposes." Section 5, Article IX, Constitution. My investigation of this subject has not led me to believe that the public school fund of the state contains at present any moneys derived from the sale of estates that have escheated to the state, nor from grants, gifts or devises made to the state for educational purposes. The Constitution of this state contains the following provisions: * * "It shall be the duty of the state board of land commissioners to provide for the location, protection, sale or other disposition of all the lands heretofore, or which may hereafter be granted to the state by the general government, under such regulations as may be prescribed by law; and in such manner as will secure the maximum possible amount therefor. The General Assembly shall, at the earliest practicable period, provide by law that the several grants of land made by congress to the state shall be judiciously located and carefully preserved and held in trust subject to disposal, for the use and benefit of the respective objects for which said grants of land were made, and the General Assembly shall provide for the sale of said lands from time to time; and for the faithful application of the proceeds thereof in accordance with the terms of said grants." Section 10, Article IX, Constitution. "The public school fund of the state shall forever remain inviolate and intact; the interest thereon, only, shall be expended in the maintenance of the schools of the state, and shall be distributed amongst the several counties and school districts of the state, in such manner as may be prescribed by law. No part of this fund, principal or interest, shall ever be transferred to any other fund, or used, or appropriated, except as herein provided. The State Treasurer shall be the custodian of this fund, and the same shall be securely and profitably invested as may be by law directed. The state shall supply all losses thereof that may in any manner occur." Section 3, Article IX, Constitution. "The General Assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously. One or more public schools shall be maintained in each school district within the state, at least three months in each year; any school district failing to have such school shall not be entitled to receive any portion of the school fund for that year." Section 2, Article IX, Constitution. "The executive department shall consist of a Governor, Lieutenant-Governor, Secretary of State, Auditor of State, State Treasurer, Attorney General, and Superintendent of Public Instruction, * *" Section 1, Article IV, Constitution. "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. "No appropriations 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." Section 16, Article X, Constitution. "Any legitimate expenditure of the state necessary to be provided for by a state tax is a state purpose, and the tax to be provided is a tax for a state purpose." People Ex Rel. Thomas v. Scott, 9 Colo., 422, 430. In Re Appropriations, 13 Colo., 316. The public school income fund is made up of interest on purchase money, or deferred payments on school lands sold, and rentals received from school lands leased. 2 Mills' Ann. Stats., Section 3643. All interest received by the State Treasurer on account of the investment by him of the public school permanent fund and the public school income fund in the bonds of the state of Colorado, or interest-bearing warrants of this state, are also credited to the public school income fund. The Superintendent of Public Instruction is an executive officer. Willis vs. Owen, 43 Texas, 41. State vs. Womack, 4 Wash., 19. Parks vs. Soldiers' and Sailors' Home, 22 In my opinion, the Superintendent of Public Instruction is an executive officer of this state, and the salaries and expenses incident to the maintenance of that office must be paid out of the fund created by law for the purpose of defraying the expenses of the state government for each fiscal year. The salaries and expenses of that office constitute expenditures of the state government for a state purpose, and are not expenditures for the maintenance or support of the common schools of this state. The funds derived from the sale or lease of school lands; interest upon deferred payments and interest upon the investment of the public school permanent fund and the public school income fund constitute, under the several acts of congress and the Constitution of this state, a trust fund, held in trust by the state of Colorado for the support and maintenance of the common schools of this state, and no part thereof, principal or interest, can be lawfully used or appropriated for any other purpose. |