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 *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,