The Attorney General's opinions will be found in the administration of General Carr, 1897-1898, on pages 83, 84, 88, 96, 100, 118 and 196.

The opinion of General Campbell, 1899, 1900, will be found on page 233 of his public opinions. This opinion is very lengthy, and is an exhaustive consideration of the financial questions arising in your offices.

I also refer you to the opinions of the Attorney General for the years 1895-1896, pages 144 and 152; also to the report of the Attorney General of Colorado, for the years 1899-1900, pages 60 and 93-this was in the administration of the Hon. Samuel Jones; you are also referred to the opinions of the Attorney General for the years 1891-1892, at page 23-this is in the administration of the Hon. Joseph Maupin.

In addition to these opinions, I refer you to the People vs. Goodykoontz, 22 Colo., page 509. The opinion can hardly be quoted from, as it is all valuable and instructive reading on that question, and holds that the statute makes a continuing appropriation, and that the Auditor shall pay the officer in accordance with the statute. I quote the following on a point which is sometimes debated, as to whether there is a difference between a statute and a constitutional provision. The court said:

"The difference between a constitutional and statutory appropriation is unimportant in the consideration of the question now before the court. We are simply to determine whether or not an appropriation has been made by Constitution or by the statute."

The object of appropriations is to prevent administrative officers from disbursing money at their pleasure. The Legislature, in some manner, measures and controls the amount which can be applied to a given purpose. It is immaterial whether this provision is made by statute or by an appropriation bill.

The court further says:

"We conclude that the act creating the office of State Boiler Inspector and fixing his salary, when considered in connection with other statutes, designating the time, mode and manner of payment, constitutes a continuing appropriation for such salary, and that no further legislative sanction is necessary to authorize the proper officers to pay the sum."

A further point has been raised in reference to the effect of the general appropriation bill upon special statutes, when the appropriation varies from the amount mentioned in the statute. My own judgment is that the title of the appropriation bill limits it to the mere purpose of appropriating money, and is not broad enough to allow it to include a repeal of a special statute.

The effect of Judge Carpenter's decision is just as binding and imperative as if made by the Supreme Court; therefore, you

will understand that the appropriation bill of the regular session of the 14th General Assembly is nullified.

Reference is also made to the People vs. the Board of Equalization, 20 Colo., 220, 232, and In re Continuing Appropriations, 18 Colo., 192.

I refer you to the opinion of General Post, 1901-1902. The Attorney General in that opinion holds that where the general appropriation bill mentions a less sum than that provided for by the statute, the Auditor should set aside from the general fund,. a sufficient amount to make up the sum provided for by the statute creating the office and defining the sums to be paid for salary and expenses.

The reasoning given is, that a general appropriation bill can embrace nothing but appropriations, and where the salary and expenses are provided for in the statute which creates the office and defines the duties, such a statute can not be repealed by an appropriation bill which is considered only with reference to the sum which the Legislature deems appropriate for that office, and which does not take into consideration, at all, the special statute.

Often, the Legislature acts in total ignorance of the existence of the special statute. In fact, I am convinced that, generally, that is the case, and it would be very much better if the Legislature would leave out those appropriations entirely from the general appropriation bill.

Persons who are familiar with the preparation and enactment of an appropriation bill, know that the Finance Committee is not familiar with these special statutes, and do not know that they are conflicting with them in varying the sums.

In Goodykoontz vs. Acker, 19 Colo., 360, the Supreme Court held that the act providing that the Inspector of Metalliferous Mines shall receive a salary of $3,500.00 per year, and ten cents per mile for mileage actually traveled, to be paid out of any money appropriated for that purpose, does not constitute an appropriation. The court maintains that this statute must be supplemented by an appropriation to pay the salary. This statute differs from nearly all the other statutes to which we refer as continuing appropriations.

The act in relation to metalliferous mines is found in Session Laws of 1889, at page 254, and provides for the payment of the salary out of the funds to be appropriated.

When the Legislature creates an office, bureau, or department of government, it places a limit on the expenses which can be incurred in the conduct of the office. The statute which does this, is more than an appropriation-it is the establishment of the salary or compensation.

An appropriation bill is less; it is simply the creation of a fund out of which salaries and expenses are to be paid. It has been the practice in this State to leave unsettled by statute, the

compensation of employes. Their tenure of office is one of employment, merely, but the limit of the pay is prescribed by the appropriation bill which provides the only money out of which employes can be paid. Without such a fund no legal employment can be made, and no payment can be made for work.

Hence, when the Legislature provides, in the general appropriation bill for employes, by making a stated and specific appropriation for each, it is binding as to such. It is the only provision existing as to their payment.

This is quite different from a clause in such bill, appropriating money to meet the salary fixed by a separate statute. In my judgment, the special statute passed to fix the amount of salary and limit of expenses, can not be changed by an appropriation bill. The title of the bill is not broad enough to allow the Legis lature to go into the work of revising or changing salaries, fees, or expenses.

The general appropriation bill is introduced after the first thirty days, and is limited to setting apart money out of the general fund for the purpose of meeting the expenses of the Executive, Legislative and Judicial departments. If these expenses have been determined as to amount by other legislation, all the appropriation bill can do is to set apart the funds to pay them. Such legislation is wholly unnecessary, and the general appropriation bill is encumbered year after year with needless matters and things, which ought to be omitted.

It is possible that the items are included as a convenience, but because they are inserted continuously, ignorance of existing statutes settling them, causes a wrangle.

I believe that the statute, in every case, should govern where there is a conflict between the appropriation bill and a special statute.

1

Respectfully submitted,

N. C. MILLER,

Attorney General.

MILL LEVIES.

Mill levies for state institutions are under the control of the Legisature, but they are subject to the same classifications as special appropriation.

MR. H. D. THOMPSON,

Denver, Colorado, March 13, 1903.

Member of the Board of Regents,

State University.

Dear Sir-In reply to your question as to the standing of the mill levies instituted by the Legislature in support of the educational institutions of our State, I have to say:

These levies are only continuing appropriations and are subject to the control of the Legislature at any time. Their advantage is that they relieve the General Assembly of the necessity of making a particular appropriation at each biennial session, and afford the State institutions a fixed income.

I understand that the objection is urged that the levies stand in the position of a preferred appropriation. In reply I will say that this is a misconception of the manner in which they are dealt with in the Auditor's and Treasurer's offices. The only difference between these appropriations and those which the Legislature makes biennially, is that the one is a continuing appropriation and the other is fixed at each session. For instance, the 2/5 mill levy proposed for the State University would stand on an equality with the particular appropriations made for other institutions, and it would have to pro rate with those appropriations. The current revenues of any year are applicable to the payment of appropriations of the first class; then to those of the second class, which are institutions of involuntary confinement; and, thirdly, to the educational and charitable institutions. None of these mill levies are honored until all of the appropriations of the first and second class are paid; then, if there is not revenue to pay those of the third class in full, they must pro rate, and it matters not whether these appropriations are created by particular legislation, or at each session, or whether they be continuing appropriations governed by the mill levies.

These matters are fully discussed in In re State Board of Equalization, 24 Colo., 446, 454, and in other opinions of the Supreme Court, and are fully discussed by Attorney General Campbell in his opinion.

Respectfully,

N. C. MILLER,
Attorney General.

TERM OF OFFICE OF ADJUTANT GENERAL.

The term of office of Adjutant General begins on April 1, and continues for two years. In case he is not appointed on April 1, his predecessor holds over until he is appointed and qualified.

Dear Sir-In reply to your request for a written opinion as to the expiration of the Adjutant General's term of office, I have examined the statutes and beg leave to submit the following:

"The Adjutant General shall hold his office for the term of two years and until his successor is appointed and qualified, unless sooner removed for misconduct or in case of the vacation of his office by resignation, duly accepted."

Section 1, article 4, National Guard Laws, 1891.

"The Governor shall be Commander-in-Chief of the organand he shall, immediately upon assuming

ized militia * * *

one Assistant one Sur

his office, appoint an Adjutant General, Adjutant General,

geon General,

Secretary

* *

* *

two or more Aides-de-camp, and a Military

; all to take office on April 1, after the inauguration of the Governor, and to serve for two years, unless sooner removed by him

Section 1, article 3, National Guard, 1897.

Both of these sections are contained within the same act, and a rule is established that sections of the same act, speaking on the same subject, shall be read together and harmonized, if possible.

I see no difficulty in reconciling these two sections. The term of office of the Adjutant General is to be two years, and is to commence on April 1. In case he is not appointed on April 1, his predecessor holds over until he is appointed and qualified, according to article 4.

Now, this does not mean that an executive appointment can nullify a legislative enactment and change the time of the commencement to such period as the executive may make the appointment. The Legislature has power to say when this term should commence, and it has spoken on the question, and the