Questions propounded by the Governor to the Justices of the Supreme Court under Code 1940, Tit. 13, § 34.
Questions answered.
To the Justices of the Supreme Court of Alabama:
Gentlemen:
Under the provisions of Code of Alabama, 1940, Title 13, Section 34, I request your opinion on important constitutional questions relating to the disposition of the surplus of $1,783,616.46 now in the Special Educational Trust Fund.
The Special Educational Trust Fund is composed of the revenue collected under the provisions of those sections of Title 51, Code of Alabama, 1940, enumerated in Section 910 of said Title. Appropriations for various educational purposes, payable out of said Special Educational Trust Fund (see Section 12 of Act No. 239, infra), are made by Sections 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Act No. 239, S. 238, approved August 22, 1939, General Acts 1939, page 399. All of the appropriations made by the above-numbered sections of Act No. 239, supra, for the fiscal year ending September 30, 1941, were paid in full out of said Special Educational Trust Fund during the fiscal year ending September 30, 1941. The surplus of $1,783,616.46 in the Special Educational Trust Fund today is the difference between the revenue collected under the provisions of those sections of Title 51, Code of Alabama, 1940, enumerated in Section 910 of said Title during the fiscal year ending September 30, 1941, and the amount of the appropriations paid from said Special Educational Trust Fund during the fiscal year ending September 30, 1941, pursuant to the provisions of the above-numbered sections of Act No. 239, supra.
Question No. 1. May this surplus of $1,783,616.46 now in the Special Educational Trust Fund be made available for educational purposes without further legislative action, in view of the provisions of Section 72 of the Constitution of Alabama, 1901?
Question No. 2. If your answer to Question No. 1 is in the affirmative, should such surplus be made available for the various educational purposes for which appropriations are made by the above-numbered sections of Act No. 239, supra, in the same proportion which each of the appropriations made by those sections for such purposes bears to the total of all the appropriations made for all such purposes by said sections?
Respectfully submitted,
Frank M. Dixon, Governor.
To His Excellency, Hon. Frank M. Dixon, Governor of Alabama, Montgomery. Sir:
Responding to your inquiry of February 24th, relative to the disposition of the surplus of $1,783,616.46 now in the Special Educational Trust Fund, under the provisions of Title 13, section 34, Code of 1940, we submit the following:
In answer to a previous inquiry (4 So.2d 654), we expressed the opinion that notwithstanding section 16, Title 51, Code of 1940, the surplus in the Special Educational Trust Fund on September 30, 1941, remains in that fund after that date. The special appropriations contained in the Act No. 239, approved August 22, 1939 (General Acts 1939, page 399), which are payable out of that fund are effective not only for the year ending September 30, 1941, but also for the years ending September 30, 1942 and September 30, 1943, respectively. That Act appropriates for the various causes a specified sum for each of those years.
We see no reason why the surplus which was in that fund at the end of September *Page 369 30, 1941, and remained thereafter in it is not available, out of which to pay the appropriations which are made so payable for the year ending September 30, 1942. That surplus is as much a part of the Special Educational Trust Fund for that year as are new moneys collected during the year for such fund. They all together constitute the one fund indivisible out of which appropriations of it payable during the year are available. But of course the surplus mentioned cannot serve to enlarge the amount of the annual specific appropriations so payable.
If your inquiry is to be interpreted as referring to the power to use this surplus for any other purpose than to pay such specific appropriations as were heretofore made by the Act of August 22, 1939, supra, payable out of the trust fund, our answer must be in the negative. To such end, legislative enactment is essential; otherwise section 72 of our State Constitution would be violated.
Your inquiry numbered two is sufficiently embraced in the foregoing response.
Respectfully,
LUCIEN D. GARDNER, Chief Justice.
WILLIAM H. THOMAS, VIRGIL BOULDIN, JOEL B. BROWN, ARTHUR B. FOSTER, J. ED LIVINGSTON, Associate Justices.