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Bob Ferguson

AGO 1956 No. 190 -
Attorney General Don Eastvold


State Trade Fair Fund is trust fund outside treasury available to Director of Agriculture without appropriation by legislature.

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                                                                 January 17, 1956

Honorable Sverre N. Omdahl
Director of Agriculture
Old Capitol Building
Olympia, Washington                                                                                                              Cite as:  AGO 55-57 No. 190

Dear Sir:

            In your letter of December 23, 1955, previously acknowledged, you requested our opinion upon the following question:

            "Under Chapter 106, Laws of 1955, was it the intent of the Legislature to create the State Trade Fair Fund as a trust fund outside the State Treasury?"

            Your question is answered in the affirmative.


            Section 3, 4, and 5, chapter 106, Laws of 1955, provide as follows:

            Sec. 3. "The board of trustees of any state trade fair sponsored by any public agency, that qualifies hereunder, may apply to the director for moneys to carry on the continued development and operation of said fair.  It shall be the duty of the director  [[Orig. Op. Page 2]] of agriculture to make annual allotments to participating state trade fairs and to issue vouchers for such purpose to be paid by the state treasurer out of the state trade fair fund.  The division in payment of said fund shall occur at such times as the director shall fix, but in no event shall payment to any one state trade fair exceed thirty thousand dollars during any one year.  Any state trade fair, before being able to qualify and participate in allocation herein provided must be able to match the amount of such allocation from its own local state trade fair resources derived either from general admission or otherwise."  (Emphasis supplied.)

            Sec. 4. "The director shall establish rules and regulations by which the state trade fair fund is prorated."

            Sec. 5. "Section 2, chapter 34, Laws of 1947 and RCW 67.16.100 are each amended to read as follows:

            "In addition to the license fees required by this chapter the licensee shall pay to the commission five percent of the gross receipts of all parimutuel machines at each race meet, which sums shall be paid daily to the commission.

            "All sums paid to the commission, together with all sums collected for license fees under the provisions of this chapter, shall be disposed of by the commission as follows: Twenty percent thereof shall be retained by the commission for the payment of the salaries of its members, secretary, clerical, office, and other help and all expenses incurred in carrying out the provisions of this chapter.  No salary, wages, expenses, or compensation of any kind shall be paid by the state  [[Orig. Op. Page 3]] in connection with the work of the commission.  Of the remaining eighty percent, forty-seven percent shall, on the next business day following the receipt thereof, be paid to the state treasurer to be deposited in the general fund, and three percent shall, on the next business day following the receipt thereof, be paid to the state treasurer, who is hereby made ex officio treasurer of a fund to be known as the 'state trade fair fund' which shall be maintained as a separate and independent fund, and made available to the director of agriculture for the sole purpose of assisting state trade fairs.  The remaining thirty percent shall be paid to the state treasurer, who is hereby made ex officio treasurer of a fund to be known as the 'fair fund,' which shall be maintained as a separate and independent fund outside of the state treasury, and made available to the director of agriculture for the sole purpose of assisting fairs in the manner provided in Title 15.  Any moneys collected or paid to the commission under the terms of this chapter and not expended at the time of making its report to the legislature, shall be paid to the state treasurer and be placed in the general fund."  (Emphasis supplied.)

            Basically the question here presented is whether the funds under the foregoing act coming into the hands of the state treasurer can be disbursed without an appropriation by the legislature as called for under Article VIII, § 4, of the state constitution.

            We think that this question has already been resolved for us by our supreme court in the case ofState ex rel. State Retirement Board v. Yelle, 31 Wn. (2d) 87, wherein the court stated at page 106:

            "The mere fact that the state treasurer may be made the custodian of a particular fund and may be required to render certain services with respect  [[Orig. Op. Page 4]] to such fund, does not of itself make the moneys so received and held by him state funds in the state treasury.  Except in cases where the constitution requires that moneys be paid into the state treasury, as, for instance, taxes for state purposes, which moneys may be paid out only pursuant to an appropriation by law, the legislature has authority to determine the nature, the place and character of custody, and the requisites for the expenditure of a fund created by it."

            See alsoState ex rel. Washington Toll Bridge Authority v. Yelle, 195 Wash. 636;Ajax v. Gregory, 177 Wash. 465; In re Kessler, 26 Idaho 764, 146 Pac. 113;Head Money Cases (Eyde v. Robertson), 112 U.S. 580, 28 L.Ed. 798, 5 S.Ct. 247;Reynolds v. Milk Commission, 163 Va. 957, 179 S.E. 507.

            The fees collected under the subject act are imposed by the legislature under the police power for the purposes of regulation as opposed to the taxing power for purposes of revenue.  Although paid into the treasury the legislature has seen fit to appropriate these funds in advance for certain particular uses set forth in the act.

            You are therefore advised that it was the intent of the legislature to create the fund in question as a trust fund outside the treasury which is available to the director of agriculture to expend for state trade fairs without further appropriation by the legislature.

            We trust the foregoing analysis will prove helpful to you.

Very truly yours,

Attorney General

Assistant Attorney General