AGO 80-112.

• Case Date: November 24, 1980
• Court: North Dakota

North Dakota Attorney General Opinions 1980. AGO 80-112. November 24, 1980 (OPINION) OPINION 80-112Mr. Darrell R. Ohlhauser, CPAExecutive Budget Analyst Office of the Budget State Capitol Bismarck, North Dakota 58505 Dear Mr. Ohlhauser: This is in response to your request for an opinion concerning Section 14 of Chapter 243 of the 1979 Session Laws. In your inquiry, you state the following:

Section 14 of Chapter 243 appropriates, from the state tuition fund, "the sum of $16,500,000.00 or so much thereof as is or may become available, to the public schools of this state as provided in Section 154 of the Constitution of the State of North Dakota and chapter 15-44, for the biennium beginning July 1, 1979 and ending June 30, 1981."

Section 154 of the Constitution and chapter 15-44 of the N.D.C.C. provide for the apportionment of interest and income from the permanent school fund to the common schools of the state. (The interest and income constitute the "state tuition fund" per section 15-44-01) . The Constitution provides that "if any portion of the interest or income aforesaid be not expended during any year, said portion shall be added to and become a part of the school fund." section 15-44-03 provides that the superintendent of public instruction "shall apportion such fund immediately among the several counties of the state" and the department of accounts and purchases is to "prepare and issue a warrant" to the state treasurer for distribution to the county treasurers.

Prior to the Forty-sixth Legislative Assembly, there was no appropriation of the interest and income from the state tuition fund and distributions were made solely pursuant to section 15-44-03. However, the Legislature now made a specific appropriation of $16,500,000 or "so much thereof" as is (or may become) available.

It appears that there is a conflict between Section 14 of Senate Bill 2439 and the previous distributions of the state tuition fund under section 15-44-03. My question is, "Does Section 14 (S.B. 2439), which was passed subsequent to section 15-44-03, make a specific maximum appropriation of $16,500,000 or may all interest and income in the state tuition fund be distributed as in prior years under section 15-44-03?"

Section 153 of the Constitution of North Dakota, as amended, provides:

SECTION 153. All proceeds of the public lands that have heretofore been, or may hereafter be granted by the United States for the support of the common schools in this state; all such per centum as may be granted by the United States on the sale of public lands; the proceeds of property that shall fall to the state by escheat; all gifts, donations, or the proceeds thereof that come to the state for support of the common schools, or not otherwise appropriated by the terms of the gift, and all other property otherwise acquired for common schools, shall be and remain a perpetual trust fund for the maintenance of the common schools of the state. Only the interest and income of the fund may be expended and the principal shall be retained and devoted to the trust purpose. All property, real or personal, received by the state from whatever source, for any specific educational or charitable institution, unless

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