This is an original proceeding against five of the seven constitutional officers comprising the executive department of the state of Montana seeking a writ of mandate to compel the performance of acts which relator contends the law specially enjoins as a duty resulting from their respective offices. *Page 418
To obtain the aid of this court by mandamus the relator must establish a clear legal right in itself to the relief prayed for and a violation of duty upon the part of the officers sought to be coerced. State ex rel. Grant v. Eaton, 114 Mont. 199, 133 P.2d 588; State ex rel. Cutts v. Hart, 56 Mont. 571, 578,185 P. 769, 771, 7 A.L.R. 1678; sec. 9848, Rev. Codes, 1935.
The facts in the case are simple. The law applicable to such facts is plain.
The state aeronautics commission was created by an act of the 1945 legislative assembly. Chapter 152, Laws of 1945. It, like the state railroad commission and the state highway commission, is an administrative agency of the state supported and maintained by revenues provided by the legislative assembly.
The chief source of revenue provided for the support and maintenance of the state aeronautics commission was "the proceeds of one cent per gallon out of each five cents per gallon of gasoline license tax now imposed by the laws of Montana upon purchases of gasoline used for the operation of aircraft." Ch. 152, Laws of 1945, sec. 20, p. 346.
The act which created the state aeronautics commission also created the state aviation fund and specifically provides that out of such fund shall be paid all costs and expenses of administering the act, including the salary of employees and assistants, the expenses of members of the commission and all other disbursements necessary to carry out the purposes of the act.
The tax imposed by the laws of Montana upon the purchase of gasoline used for the operation of aircraft is levied and collected for state or public purposes only and must therefore be paid into the state treasury. Secs. 10 and 11, Art. XII, Constitution of Montana.
Since March 1, 1945, the date of the approval of the act creating the state aeronautics commission, more than $87,000 levied and collected as a gasoline tax upon purchases of gasoline used for the operation of aircraft has been paid into the *Page 419 state treasury of the state of Montana and credited to the state aviation fund. During this time less than $1,100 has been paid into the state aviation fund from the proceeds of fees collected for the registration and licensing of aircraft and pilots and any and all other sources combined. No gifts have been received nor have any moneys been received from any branch or department of the federal government for deposit in said fund.
Claims totaling $9,401.98 for costs and expenses of the state aeronautics commission incurred in administering the act (Ch. 152, Laws 1945) for the month of December 1947 and succeeding months were presented to the state board of examiners of the state of Montana for examination.
The law of this state requires certain formalities and procedure before money may be withdrawn from the state treasury and paid out on claims against the state.
(1) The claims properly certified must first be presented to, examined and "duly approved by the state board of examiners" (sec. 193, Rev. Codes 1935) upon which board has been conferred the "power to examine all claims against the state, except salaries or compensation of officers fixed by law." Const. Mont. Art. VII, sec. 20.
(2) In examining the claims the state board of examiners ascertains whether or not there is an "unexhausted appropriation therefor made by the legislative assembly" (sec. 193, Rev. Codes 1935) from which said claims may be paid and if it finds that there is such an appropriation and that the claims are in proper form, correct, just and valid, they are approved and allowed by the board.
(3) After approval of the claims by the state board of examiners the next step is the presentation thereof to the state auditor for the issuance of state warrants upon the state treasurer for the payment of the claims. But "the state auditor shall not issue his warrant upon the state treasurer save by virtue of unexhausted appropriation therefor made by the legislative assembly, and after the presentation to him of a *Page 420 claim duly approved by the state board of examiners, save and except for salaries and compensation of officers fixed by law." Sec. 193, Rev. Codes 1935. The rule expressio unius est exclusio alterius applies.
(4) Section 151, Rev. Codes, 1935, prescribes the duties of the state auditor and subdivision 17 thereof provides that, "no warrant must be drawn unless authorized by law, and upon an unexhausted specific appropriation provided by law to meet the same. Every warrant must be drawn upon the fund out of which it is payable, and specify the service for which it is drawn, when the liability accrued, and the specific appropriation applicable to the payment thereof."
(5) No moneys received by the state treasurer shall be paid out by him except upon state warrant issued by the state auditor. Sec. 193, Rev. Codes. See also Const. of Mont., Art. V, sec. 34 and Art. XII, sections 10 and 12.
Section 174, Rev. Codes, 1935, in part provides: "It is the duty of the state treasurer: * * * 3. To deliver to each person paying money into the treasury and to the state auditor a duplicate receipt showing the amount, the sources from which themoney accrued, and the funds into which it is paid, which receipts must be numbered in order, beginning with number one at the commencement of each fiscal year. 4. To pay warrants drawn by the state auditor out of the funds upon and in the order in which they are drawn * * * 7. To keep separate accounts of the different funds. 8. To report to the state auditor, on the last day of each month, the amount disbursed * * * in payment of warrants during the month; which report must show the date and number of such * * * warrants, the fund out of which they were paid, and the balance of cash on hand in the treasury to the credit of each fund." (Emphasis supplied.)
Upon examining the claims the state board of examiners found that the 30th legislative assembly (1947) wholly failed to make any appropriation whatever of any of the moneys in the state aviation fund on which the proposed warrants are to *Page 421 be drawn. No moneys having been appropriated for the payment of claims against the state aviation fund for the fiscal years 1947-1948 and 1948-1949, the state board of examiners refused to approve or allow the claims so presented.
The Constitution of Montana provides:
"No money shall be paid out of the treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof, except interest on the public debt." Art. V, sec. 34.
"* * * no money shall be drawn from the treasury but in pursuance of specific appropriations made by law," Art. XII, sec. 10.
"No appropriation of public moneys shall be made for a longer term than two years." Art. XII, sec. 12.
"The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise." Art. III, sec. 29.
Obedient to the above prohibitory provisions of the Constitution forbidding the drawing from or the paying out of the state treasury of money except upon appropriations made by law, the state board of examiners declined to approve the claims.
The withholding of the board's approval of the claims completely tied the hands of both the state auditor and the state treasurer, for the law does not permit the state auditor to issue his warrant upon the state treasurer until "after the presentation to him of a claim duly approved by the state board of examiners." (Sec. 193, Rev. Codes) and it does not permit the state treasurer to pay any money out of the state treasury except upon state warrants issued by the state auditor and upon appropriations made by law. Sec. 193, Rev. Codes; Const. Mont., Art. V, sec. 34; Art. XII, sec. 10, supra.
Since the relator's petition states that the state board of examiners "has failed, refused and neglected to approve" the claims submitted to it and "has withheld its approval of said claims," it shows on its face that relator is entitled to no relief *Page 422 whatever as against either the state treasurer or the state auditor. Neither of these officers has violated any duty owing to relator for under the facts averred each of said officers is forbidden by express provisions of the law from acting in the absence of approval of the claims by the state board of examiners. Under such facts the writ should be quashed and the proceedings dismissed as to the state treasurer and the state auditor. Sec. 9848; sec. 193; subd. 17, sec. 151, Rev. Codes; Const. Mont., Art. V, sec. 34; Art. XII, sec. 10; Reeside v. Walker, 11 How., U.S., 272, 13 L. Ed. 693; State v. Kenney,9 Mont. 389, at pages 395, 396, 24 P. 96.
The next question is: Did Sam C. Ford, governor of Montana, R.V. Bottomly, attorney general of Montana, and Sam W. Mitchell, secretary of state of Montana, as members of and constituting the board of examiners of the state of Montana, fail to perform the duties which the law specifically enjoins upon them when they refused to approve relator's claims?
The executive department of this state consists of the governor, lieutenant governor, secretary of state, attorney general, state treasurer, state auditor and superintendent of public instruction. Constitution of Montana, Article VII, sec. 1.
The supreme executive power of this state is vested in the governor whose duty it is to see that the laws are faithfully executed. Const. Mont. Art. VII, sec. 5. The respondent governor of this state is able and learned in the law. He formerly served the state well and faithfully as its attorney general and later as one of the justices of this court. The respondent attorney general likewise is able and learned in the law, and for more than 32 years, has been a member of the bar of this court actively engaged in the practice of law in the state. The respondent secretary of state is a most intelligent, capable, conscientious and experienced state officer who is now completing his sixteenth consecutive year in his present office. Before entering upon the duties of their respective officers each member of the state board of examiners was required to take and subscribe to the constitutional oath to support, protect and defend the Constitution of *Page 423 the state of Montana and to discharge the duties of their respective offices with fidelity. Const. Mont. Art XIX, sec. 1.
The interpretation which these public officers placed upon the above prohibitory provisions of the Constitution and Codes is entitled to great weight and respect. These learned executive officers read and interpreted the plain language of the Constitution and statutes as I interpret them, which is that, "no money shall be paid out of the treasury except upon appropriations made by law" (Art. V, sec. 34); "no money shall be drawn from the treasury but in pursuance of specific appropriations made by law" (Art. XII, sec. 10) and "no appropriation of public money shall be made for a longer term than two years" (Art. XII, sec. 12).
The 29th legislative assembly (1945) was prohibited from making any appropriation of public moneys for any purpose beyond the fiscal year 1946-1947 and the 30th legislative assembly (1947) made no appropriation whatever of any moneys in the state aviation fund for the fiscal years 1947-1948 and 1948-1949.
Under such facts it became and was the duty, under the law, of the governor, attorney general and secretary of state, acting as the state board of examiners, to withhold approval of relator's claims and it is now the duty of the justices of this court, who are likewise bound to support, protect and defend the Constitution, to uphold the aforesaid executive officers when so faithfully discharging their duties in obedience to the plain and express provisions of the fundamental law of the state.
The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly. Const. Mont. Art. XII, sec. 1.
The framers of the Constitution provided two methods of raising such revenue. State ex rel. Diederichs v. State Highway Comm., 89 Mont. 205, 211, 296 P. 1033; State v. Camp Sing,18 Mont. 128, 44 P. 516, 32 L.R.A. 635, 56 Am. St. Rep. 551.
Section 1 of Article XII of the Constitution, after authorizing the taxation of property, provides: "The legislative assembly *Page 424 may also impose a license tax, both upon persons and corporations doing business in the state."
The original gasoline license tax statute, Ch. 156, Laws 1921, as amended by Chapter 150, Laws of 1923, was construed by this court in State v. Sunburst Refining Co., 73 Mont. 68, 77,235 P. 428, 429, where it is said: "This statute is not in any sense a police regulation. It imposes an excise or occupation tax solely for raising revenue and was doubtless intended to be that form of license tax mentioned in and authorized by the last sentence of section 1, Article XII, of our state Constitution."
Section 2381.5, Revised Codes 1935, designates the tax as "an excise or license tax," while section 10 of Chapter 39, Laws of 1945, designates the tax as "a license tax for the privilege of engaging in and carrying on * * * business in this state."
The following cases recognize the tax on gasoline to be an excise tax on the sale or use and not to be a property tax: State v. Silver Bow Refining Co., 78 Mont. 1, 252 P. 301; Pierce Oil Corporation v. Hopkins, 8 Cir., 282 F. 253; Garrett Freight Lines v. State Tax Commission, 103 Utah 390, 135 P.2d 523, 146 A.L.R. 1003; Crockett v. Salt Lake County, 72 Utah 337,270 P. 142, 60 A.L.R. 867; Department of State Highways v. Baker,69 N.D. 702, 290 N.W. 257, 129 A.L.R. 925; O'Berry v. Mecklenburg County, 198 N.C. 357, 151 S.E. 880, 67 A.L.R. 1304; State v. City of Monroe, 177 La. 983, 149 So. 541; State v. City of Des Moines,221 Iowa 642, 266 N.W. 41; State v. Cheyenne County,127 Neb. 619, 256 N.W. 67; People v. Deep Rock Oil Corporation,343 Ill. 388, 175 N.E. 572; Bowman v. Continental Oil Co.,256 U.S. 642, 41 S. Ct. 606, 65 L. Ed. 1139; Edelman v. Boeing Air Transport, 289 U.S. 249, 53 S. Ct. 591,77 L. Ed. 1155.
The "gasoline license tax now imposed by the law of Montana upon purchases of gasoline used for the operation of aircraft" (Ch. 152, Laws 1945, sec. 20, p. 346) was clearly an imposition made by the state for the supply of the public treasury and therefore a tax. "A tax is an imposition for the supply of the public treasury and not for the supply of individuals or private *Page 425 corporations, however benevolent they may be." 51 Am. Jur., Taxation, p. 40, note 19. "A tax is a forced * * * exaction [or] imposition * * * by authority of a sovereign state upon the persons or property within its jurisdiction, to provide public revenue for the support of the government, and administration of the law, or the payment of public expenses. Any payment exacted by the state or its municipal subdivisions as a contribution toward the cost of maintaining governmental functions, where the special benefits derived from their performance is merged in the general benefit, is a tax." 51 Am. Jur., Taxation, pp. 35-38, sec. 3.
The gasoline tax imposed by the laws of Montana (Ch. 152, Laws 1945) on purchases of gasoline used in the operation of aircraft was levied and collected for state purposes, namely, for the purpose of paying for the support and maintenance of an administrative agency of the state designated as the state aeronautics commission and for paying the costs and expenses of such commission in administering the Act. Ch. 152, Laws 1945. Being taxes levied and collected for state purposes, the proceeds of such taxes were paid into the state treasury pursuant to the requirements of Art. XII, sec. 10, which provides: "All taxes levied for state purposes shall be paid into the state treasury * * *." The state treasurer is designated the treasurer of every state commission or department, and all moneys received by such commissions and departments must be deposited with the state treasurer. Sec. 192, Rev. Codes 1935. So it is that, pursuant to the foregoing constitutional and statutory mandate, there has been paid into the state treasury and credited to the state aviation fund the proceeds of the gasoline tax imposed by the laws of Montana (Ch. 152, Laws 1945) upon purchases of gasoline used for the operation of aircraft. No one here questions that the public moneys collected by virtue of the gasoline license tax imposed by the laws of Montana were properly paid into the state treasury. The relator by this proceeding seeks to accomplish the withdrawal and the paying out of these public moneys from the public treasury but this paying out the Constitution *Page 426 says shall not be done "except upon appropriations made by law." Const. Mont. Art. V, sec. 34; Art. XII, sec. 10.
It matters not whether the legislature directs the money collected in taxes to be placed in the general fund or in a special fund created for the use of a particular public agency. The moneys remain public moneys and require an appropriation by the legislative assembly to authorize the state treasurer to payout or withdraw same.
It is within the province of the legislature to direct in what particular fund in the state treasury that the proceeds of the tax collections provided for are to be paid but such direction cannot affect the clauses in the Constitution prohibiting the withdrawal or paying out of such moneys without a new legislative appropriation each two years. The requirements of the Constitution have been met through the years. The last legislative assembly (1947) in the enactment of House Bill 437 made appropriations out of various special funds in the state treasury including the livestock commission fund, the livestock sanitary board fund, the bounty fund, the industrial accident fund, the state highway fund, the gasoline drawback fund, the beer act fund, the motor vehicle recording fund and others but it made no appropriation of any part of the state aviation fund. Session Laws of 1947, pp. 748-782.
The clauses of the Constitution here applicable were involved in the early case of State v. Kenney, 9 Mont. 389, 396,24 P. 96, 97, where, referring to section 34 of Art. V and section 10 of Art. XII, this court, speaking through Chief Justice Henry N. Blake, said:
"The history of this vital clause of the constitution forms a grand part in the struggle for liberty between the people and monarchs of England. In Magna Charta it is confirmed that `no scutage or aid shall be imposed in our kingdom unless by the general council of our kingdom.' In 1688, the act `for declaring the rights and liberties of the subject, and settling the succession of the crown' (or bill of rights), declared `that levying money for or to the use of the crown by pretence of prerogative, without *Page 427 grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.'
"Words have changed in signification during the progress of time, but the principle has not been modified, and this bulwark of freedom has been preserved in the constitutions of the states of the Union. * * * We conclude from the authorities supra, that the respondent [state auditor] cannot draw his warrant upon the treasurer of the state in payment of the claim of the relator, in the absence of an appropriation by law. The foregoing prohibitions of the constitution refer to the auditor as well as the treasurer, and any other officer who is empowered to disburse the public funds, in pursuance of a lawful appropriation."
In State ex rel. Dean v. Brandjord, 108 Mont. 447, 92 P.2d 273, 276, this court held that, through section 34 of Article V of the state Constitution, "control of the purse strings of the state treasury were explicitly placed in the hands of the law-making branch of the government, to be tightened or loosened at its will. * * * But the mere duty on the part of the legislature to make an appropriation does not satisfy the requirement of an `appropriation by law' any more than does the promise of the government to pay money or make an appropriation."
"Funds" and "appropriations" are not the same for a fund may exist without provisions being made for any appropriation therefrom. Raymond v. Christian, 24 Cal. App. 2d 92, 74 P.2d 536, 546. So here there is a fund created by statute but the 30th legislative assembly made no provisions for any appropriation therefrom for the fiscal years 1947-1948 and 1948-1949.
The majority opinion erroneously assumes that when public moneys are placed in a special fund or elsewhere than in the general fund that no legislative appropriation is required as a condition precedent to their paying out and withdrawal. The assumption overlooks the facts that it is the source that is determinative of whether or not the moneys are public moneys and that when the source of the moneys is found to be forced exactions *Page 428 or impositions effected by the authority of the state upon persons or property to provide public revenue for the support of the government and its agencies that such moneys are public moneys and may not be paid out or withdrawn except upon appropriations made by the legislature.
The majority opinion asserts that section 10 of Article XII, supra, and other constitutional provisions relating to taxation have no application to license fees or taxes imposed for regulatory purposes as distinguished from property taxes. Such is not the law nor has it ever been the law of this state. The last sentence of section 1 of Article XII of the Constitution expressly empowers the legislative assembly to "impose a license tax, both upon persons and upon corporations doing business in the state."
That public moneys are by direction of the legislature placed in the state treasury in a special fund designated as the state aviation fund is of no importance. State ex rel. Diederichs v. State Highway Comm., supra. "It is well settled that a license may be required either for taxation purposes or to defray the expense of regulation and that the legislature has power to impose license taxes for revenue purposes under section 1 of Article XII, Constitution of Montana. Johnson v. City of Great Falls, 38 Mont. 369, 99 P. 1059, 16 Ann. Cas. 974." State ex rel. State Board of Equalization v. Glacier Park Co., 118 Mont. 205,164 P.2d 366, 368.
Numerous cases are cited in the majority opinion holding that the above quoted clauses of the Constitution have no application to trust funds but this case is not concerned with trust funds for by no stretch of the imagination can the excise gasoline taxes paid into the state aviation fund in the state treasury pursuant to Chapter 152, Laws 1945, and section 192, Rev. Codes 1935, be said to constitute a "trust fund."
Various cases from other jurisdictions involving wholly different constitutions and statutes are cited in the majority opinion but each of such cases is clearly distinguishable from the case at bar which is concerned only with the construction to be given *Page 429 to the clear provisions of Montana's Constitution and statutes.
The same section of the state Constitution that prohibits the paying of money out of the treasury "except upon appropriation made by law" also prohibits the paying out of such money except "on warrant drawn by the proper officers." Art. V, sec. 34.
If, as the majority opinion asserts, the foregoing constitutional provisions "have no application to license fees or taxes imposed for regulatory purposes" then the treasurer would be authorized to pay out in cash such moneys to the various claimants upon their mere asking. There would be no need for locating an unexhausted appropriation made by law nor for issuing or presenting a warrant to authorize the state treasurer to withdraw from the treasury and hand over to claimants the moneys demanded in their respective claims. But says the Supreme Court in Reeside v. Walker, supra: "No officer, however high, not even the President, much less the secretary of the treasury, or treasurer, is empowered to pay debts of the United States generally, when presented to them." Clearly the clauses of the Constitution above quoted are applicable and there must be an unexhausted appropriation, approval of the claims by the state board of examiners and proper warrant drawn on the proper fund before the state treasurer is authorized to pay out of the treasury any moneys on the claims.
In State ex rel. Diedrichs v. State Highway Commission,89 Mont. 205, 296 P. 1033, 1034, it is said:
"We are mindful, too that the declarations of Constitutions are placed therein to be obeyed, and are not to be frittered away by construction. Less v. City of Butte, 28 Mont. 27, 72 P. 140, 61 L.R.A. 601, 98 Am. St. Rep. 545. Our duty in this respect remains the same no matter how urgent may be the desire to obtain money with which to carry on the much-needed program of highway construction. As stated by that able jurist, Chief Justice Taney of the United States Supreme Court, in the famous Dred Scott decision (Scott v. Sandford, 19 How., U.S., 393, 15 L.Ed. [691], 692): `No change in public opinion on questions of public policy can ever be given any weight in construing the *Page 430 provisions of a constitution where the meaning is clear, for the adoption of a constitution that might be deemed wise at one time and unwise at another would abrogate the judicial character of the court and make it the reflex of the popular opinion or passion of the day.' * * *
"The fund raised from the motor fuels excise tax results from one of the constitutional methods of raising public revenues. State v. Sunburst Refining Co., 73 Mont. 68, 235 P. 428. * * * The people are gravely concerned as to how and the purposes for which their money is spent. * * * In the language of the Supreme Court of Iowa, in State ex rel. Fletcher v. Executive Council, supra [207 Iowa 923, 223 N.W. 737, 743]: `The responsibility thus facing us is one not of our seeking, nor of our liking, nor yet one which we would dare evade. We are assured, too, that in the long event the duty we owe, not only to the litigants, but to our co-ordinate departments of government, is to undertake frankly the judicial responsibility which litigation casts upon us, and to declare faithfully our judicial convictions therein. In such a case our primary concern is, and must be, directed to the soundness of our conclusion, and not to its consequences. Consequences are inevitable in every litigation and are commensurate with the magnitude thereof. They are not judicially made, nor can we make them less or more.' As the great Justice Story said in the Dartmouth College case, 4 Wheat., U.S., 518,4 L. Ed. 629: `We have nothing to do but pronounce the law as we find it; and having done this, our justification must be left to the impartial judgment of our country.'"
The governor, the attorney general and the secretary of state observed the prohibitions and obeyed the mandates of the Constitution and the statutes by withholding approval of the claims in the absence of a legislative appropriation. For this they should be commended, — not censured.
Under our Constitution and system it becomes the duty of the state legislative assembly each two years to examine into and carefully scrutinize the entire fiscal base of the state and to take affirmative legislative action respecting the withdrawal and paying *Page 431 out of the state treasury of the public moneys that have been exacted from the people of the state by the sovereign power of the state exercised through its legislative department. It is the duty of the executive department of the government as claims are presented against the state to examine into and determine whether the legislative department has taken the requisite affirmative action by appropriating the public moneys to pay the claims before the executive branch authorizes the withdrawal and paying out of such moneys.
The governor, the attorney general, and the secretary of state, constituting the state board of examiners first examine the claims as presented and check them against the appropriations made by the legislative assembly. If approved another constitutional executive officer, namely the state auditor, checks the claims against unexhausted legislative appropriations out of which they may be paid before issuing his warrant. If warrants are issued and presented for payment then another constitutional executive officer, namely the state treasurer, checks the warrants against unexhausted legislative appropriations out of which he may pay the public moneys to satisfy the warrants so presented. Thus under our system there are three separate checkups on whether or not the legislature has taken affirmative action and provided an appropriation out of which the claims may be paid.
To give judicial blessing to a change from the above constitutional method so long followed requiring a legislative appropriation and substituting therefor a system which nullifies the constitutional prohibitions and mandates by the simple device of providing for the placing of tax moneys in special funds and then declaring such special funds to be free from biennial legislative control and terminable only upon the direct action of the legislature is not only repugnant to our system but it is extremely dangerous to our form of government. Not only does it upset the long established, orderly system designed to protect against the unauthorized paying out of the public moneys from the public treasury, but it destroys one of the most carefully guarded and hard won rights guaranteed by our Constitution, *Page 432 namely the right to require the legislature to examine into the financial structure of the state each two years and to have the legislative assembly go on record by taking affirmative action respecting the paying out and expenditure of such public moneys so extracted from the pockets of the taxpayers in the state.
In my opinion the governor, attorney general, and secretary of state followed the plain mandate of the law in withholding approval of the claims. For this court to now compel such officers to approve the claims in the absence of a legislative appropriation is to compel them to violate the express prohibitions of the state's Constitution.
Total Drawback Statute. Under the provisions of section 2396.4, Revised Codes of Montana of 1935 as amended by Chapter 67 of the Session Laws of 1939, page 116, the purchaser of gasoline used in operating aeroplanes or aircraft is allowed a refund or drawback of all the gasoline tax paid by him being an amount of money equal to five cents multiplied by the number of gallons of gasoline so purchased and used.
Partial Drawback Statute. In 1945 the 29th legislative assembly amended the aforesaid statutes by the enactment of section 20 of Chapter 152 of the Session Laws of 1945, which allows the purchaser of gasoline "purchased and used for the operation of aeroplanes or aircraft" a refund or drawback of onlya part of the gasoline tax paid by him reducing "from five cents to four cents per gallon the amount of gasoline license tax which may be refunded on purchases of gasoline used in the operation of aircraft," but leaving "otherwise unchanged the provisions of said section 2396.4." Ch. 152, Laws 1945, sec. 20, *page 346. Repeal of Partial Drawback Statute. In 1947 the 30th legislative assembly enacted Chapter 130, Laws of 1947, effective from and after February 28, 1947, which act specifically amends section 2396.4, Revised Codes of Montana of 1935 as amended by Chapter 67 of the Session Laws of 1939 and provides that the purchaser of gasoline used in operating aeroplanes or aircraft "shall be allowed and paid as a refund or drawback an *Page 433 amount of money equal to five cents (5¢) multiplied by the number of gallons of gasoline so purchased and used," and further providing that, "All acts and parts of acts in conflict herewith are hereby repealed." The provisions of the 1945 Act (Ch. 152, Laws of 1945, sec. 20, page 346) allowing a refund of only apart of the gasoline tax paid or four cents per gallon are clearly in conflict with the provisions of the 1947 Act (Ch. 130, Laws of 1947, pages 168-171) which provide for a refund of all the gasoline tax paid being an amount equal to five cents per gallon hence the aforesaid conflicting provisions of the old 1945 Act must give way to and are repealed by the subsequent Act of the 1947 legislature. The effect of such repeal is to deprive the state aviation fund of its chief source of revenue, being the revenue derived since February 28, 1947 from the proceeds of said one cent per gallon out of each five cents per gallon of gasoline license tax imposed by the laws of Montana upon the purchases of gasoline used for the operation of aircraft. Under the present statute (Chapter 130, Laws of 1947) the purchaser of gasoline used for operating aeroplanes or aircraft is allowed as a refund or drawback all the gasoline tax he has paid on such gasoline leaving nothing that may be paid into the state aviation fund from such source.
Thus the 1947 legislative assembly not only made no appropriation whatever of any moneys in the state aviation fund but by the enactment of Chapter 130 of the Session Laws of 1947 it took from such fund its chief source of revenue by reserving no part of the gasoline taxes paid by the purchasers of gasoline used for operating aircraft and by allowing such purchasers refunds or drawbacks of all the gasoline tax money collected from them.
In this case the relator has failed to establish the violation of official duty upon the part of any of the executive officers sought to be coerced or to establish a clear right in relator for the relief prayed for and, accordingly, the alternative writ of mandamus should be quashed, the peremptory writ be denied and the proceeding be dismissed. *Page 434