Opinion No. 40-3383
January 6, 1940
TO: Mr. M. A. Threet, District Attorney, Third Judicial District, Las Cruces, New Mexico.
{*130} Your letter of January 4th requests an opinion as to whether the district judge may authorize reimbursement for rent paid for office used by you as district attorney. I am satisfied that he is fully justified under the law in making allowance from the court fund for that purpose.
Judge Harry L. Patton, when he was attorney general, held that a person acting under authority of the district judge as clerk could be paid for his services from the court fund, though there was no specific statute directing such payment, and in ruling upon that question stated, on inquiry from the State Traveling Auditor:
"Section 1369, Code 1915, provides for the creation and disbursement of the court fund. The disbursement of this fund is safeguarded to the extent that the county treasurer shall make payments therefrom only upon the certificate of the clerk of the court that an allowance has been made by the court. The only restriction upon the authority of the court is that no certificate shall be issued unless there is sufficient money in the fund to meet the same. The court fund is under the absolute control of the court. In my opinion the purposes {*131} for which this fund is disbursed are not proper subject of inquiry from your department." Op. Atty. Gen., 1917, p. 1.
The Legislature which enacted Chapter 72, Laws of 1929, now Section 34-306, 1929 Compilation, apparently agreed with him in his interpretation of the statute, for in reenacting the law the language of the statute referred to by Judge Patton was altered in such manner that it more closely agrees with his interpretation of the court's control of the fund. The old law read:
". . . when collected it shall be turned over to the county treasurer, to be by him disbursed for the payment of the expenses of the district courts in his county only upon a certificate of the clerk of the district court of the district in which his county is situated, that an allowance has been made by said court . . ."
It now reads:
". . . to be by him disbursed for the payment of the expenses of the district court in his county only as provided by law or upon a certificate of the clerk of the district court of the district in which his county is situated, that an allowance has been made by the court . . ."
The re-enactment of the statute in the above language, in the face of the administrative interpretation of similar language, is indicative of an intention on the part of the legislature to approve such an interpretation. I personally know that several judges in the administration of that fund have for years interpreted the statute to give them full authority to disburse it when necessary for any purpose connected with the administration of justice, which is the business of the court, and in my opinion correctly so. In at least one district one-half of the rent of the assistant district attorney's private office was paid by the judge from his court fund a few years ago, with full approval of the state comptroller's office. We have ruled that when necessary post mortems may be paid out of the court fund. -Op. No. 1806, Atty' Gen's. Op. 1937, p. 174.
It is my opinion that the legislature intended to give the court a wide discretion in the use of the fund for any purpose connected with the administration of justice. Though in a strict sense the district attorney is not a part of the court, he is, in this state, a part of the judicial system of the state and a state, not county, officer. Ward v. Romero, 17 N.M. 88. In specifically providing for payment of supplies, etc., out of the court fund, the legislature so considered him. No provision is made for rent probably because it was thought space would be available in the court houses, but when not available, rent for office space may properly, in my opinion, be paid out of one or more of the various court funds in the district, in the discretion of the court.
In subscribing to Judge Patton's interpretation of the law in this respect, I do not wish to be understood, however, as saying that a district judge may use such moneys for any public purpose, however laudable the same may be. His discretion is limited to purposes connected with the administration of justice. I am sure this is what Judge Patton meant also. I interpolate this because of late the theory has been advanced that the court fund, like the governor's contingent appropriation, is not subject to audit of any sort, and with which theory I thoroughly disagree.
By: A. M. FERNANDEZ,
Asst. Atty. Gen.
1939
39-3373
39-3370
39-3366
39-3365
39-3364
39-3362
39-3361
39-3360
39-3359
39-3352
39-3351
39-3346, S. T. 265
39-3343
39-3342
39-3341
39-3328
39-3326
39-3323
39-3319
39-3318
39-3317
39-3312
39-3311
39-3309
39-3308
39-3306
39-3305
39-3300
39-3299
39-3297
39-3296
39-3294
39-3293
39-3291
39-3290
39-3289
39-3288
39-3287
39-3286
39-3285
39-3281
39-3280
39-3277
39-3276
39-3275
39-3273
39-3267
39-3266
39-3265
39-3262
39-3261
39-3260
39-3258
39-3257
39-3256
39-3255
39-3254
39-3251
39-3249
39-3244
39-3240
39-3236
39-3235
39-3233
39-3231
39-3230
39-3229
39-3224
39-3223
39-3222
39-3220
39-3218
39-3217
39-3215
39-3214
39-3211
39-3208
39-3207
39-3205
39-3204
39-3203
39-3202
39-3201
39-3200
39-3199
39-3198
39-3197
39-3196
39-3195
39-3194
39-3193
39-3190
39-3188
39-3185
39-3184
39-3182
39-3181
39-3180
39-3178
39-3176
39-3174
39-3172
39-3170
39-3169
39-3167
39-3166
39-3165
39-3164
39-3157
39-3156
39-3155
39-3153
39-3152
39-3151
39-3149
39-3144
39-3141
39-3139
39-3137
39-3136
39-3135
39-3134
39-3132
39-3131
39-3127
39-3126
39-3124
39-3122
39-3121
39-3120
39-3119
39-3116
39-3115
39-3111
39-3110
39-3109
39-3107
39-3106
39-3104
39-3103
39-3102
39-3101
39-3099
39-3098
39-3093
39-3092
39-3090
39-3088
39-3086
39-3083
39-3082
39-3077
39-3073
39-3070
39-3069
39-3068
39-3067
39-3065
39-3061
39-3057
39-3056
39-3050
39-3048
39-3047
39-3046
39-3041
39-3037
39-3036
39-3034
39-3033
39-3032
39-3029
39-3028
39-3024
39-3023
39-3014
39-3008(a)
39-3007
39-3006
39-3005
39-3003
39-3001
39-3393