                      TO BE PUBLISHED IN THE OFFICIAL REPORTS


                           OFFICE OF THE ATTORNEY GENERAL

                                     State of California


                                     DANIEL E. LUNGREN

                                       Attorney General


                         ______________________________________

                  OPINION            :
                                     :          No. 92-303
                  of                 :
                                     :          JULY 7, 1992
        DANIEL E. LUNGREN            :

           Attorney General          :

                                     :

         CLAYTON P. ROCHE            :

        Deputy Attorney General      :

                                     :

______________________________________________________________________________

          THE HONORABLE PAT NOLAN, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following question:

                May fines for deposit in a county's fish and wildlife propagation fund be transferred
to the state's General Fund?

                                          CONCLUSION

                Fines for deposit in a county's fish and wildlife propagation fund may not be
transferred to the state's General Fund.

                                            ANALYSIS

               Section 1463.001 was recently added to the Penal Code. (Stats. 1991, ch. 189, § 19;
Stats. 1991, ch. 1168, § 6.) It states in part:

               "All fines and forfeitures imposed and collected for crimes other than parking
       offenses resulting from a filing in a court shall as soon as practicable after receipt
       thereof, be deposited with the county treasurer, and each month the total fines and
       forfeitures which have accumulated within the past month shall be distributed, as
       follows:

              "(a) The state penalties, county penalties, special penalties, service charges,
       and penalty allocations shall be transferred to the proper funds as required by law.

               "(b) The base fines shall be distributed, as follows:

               "(1) Any base fines which are subject to specific distribution under any other
       section shall first be distributed to the specified funds of the state or local agency.

                                                 1.                                              92-303

          Any amount due to the county, including amounts collected pursuant to Section
          1203.1 but excluding fees to cover the actual cost of formal probation, shall be
          divided between the state and county, with 75 percent transferred to the General
          Fund and 25 percent transferred to the proper funds of the county . . . ."1

               The question presented for analysis is whether fines to be deposited in a county's fish
and wildlife propagation fund (Fish & G. Code, §§ 13003, 13100)2 may be "divided between the
state and county, with 75 percent transferred to the General Fund . . . ." (Pen. Code, § 1463.001,
subd. (b)(1).) We conclude that such fines may not be transferred to the state's General Fund.

              Fish and game fines are initially split evenly between the state and the particular
county in which the underlying criminal offense occurs. Section 13003 provides:

                  "Unless otherwise provided by law, all fines and forfeitures imposed or
          collected in any court of this state for violations of any of the provisions of this code
          or regulations made pursuant thereto, or any other law providing for the protection
          or preservation of birds, mammals, fish, reptiles, or amphibia, shall be deposited as
          soon as practicable after the receipt thereof with the county treasurer of the county
          in which the court is situated. Amounts so deposited shall be paid at least once a
          month as follows:

                  "(a) One-half to the Treasurer, by warrant of the county auditor drawn upon
          the requisition of the clerk or judge of the court, for deposit in the Fish and Game
          Preservation Fund in the State Treasury on order of the Controller. At the time of
          such transmittal, the county auditor shall forward to the Controller, on such form or
          forms as the Controller may prescribe, a record of the imposition, collection, and
          payment of the fines or forfeitures. The department may employ legal counsel and
          may expend these funds to pay the costs of legal action brought in the name of the
          people relating to the enforcement of this code by a district attorney, city attorney,
          or the department, as appropriate.

                  "(b) One-half to the county in which the offense was committed."3

                 While the state's portion is deposited in the state's Fish and Game Preservation Fund
as set forth in subdivision (a) of section 13003, the county's share is deposited into the county's fish
and wildlife propagation fund. Section 13100 provides:
                  "The amounts paid to and retained in the county treasury pursuant to Section
          13003 shall be deposited in a county fish and wildlife propagation fund and
          expended for the protection, conservation, propagation, and preservation of fish and
          wildlife, under the direction of the Board of Supervisors, pursuant to this chapter."

Permissible expenditures from a county's fish and game propagation fund are set forth in section
13103.

   1
   "Amounts collected pursuant to Section 1203.1" are fines imposed as part of an order granting
probation. (Pen. Code, § 1203.1.)
   2
       All references hereafter to the Fish and Game Code are by section number only.
   3
       "The department" is the Department of Fish and Game. (§ 37.)

                                                     2.                                               92-303

                 Returning to the provisions of Penal Code section 1463.001, subdivision (b), we find
that the fish and game fines in question "are subject to specific distribution under any other section,"
i.e., section 13003, and therefore "shall first be distributed to the specified funds of the state or local
agency." The issue, then, is whether the "amount due to the county" must thereafter be "divided
between the state and county, with 75 percent transferred to the General Fund . . . ."4 The state
receives the first half of the fines for deposit into its Fish and Game Preservation Fund; may it
receive 75 percent of the second half for deposit into its General Fund?

                The answer to that question is "no." Penal Code section 1463.001 must be interpreted
so as not to violate the Constitution. Section 9 of article XVI of the Constitution provides:

              "Money collected under any State law relating to the protection or
        propagation of fish and game shall be used for activities relating thereto."

This constitutional provision was first adopted in 1942 (former art. IV, § 25 5/8) and renumbered
in 1966 (former art. XII, § 22). It previously stated:

                "All money collected under the provision of any law of this State relating to
        the protection, conservation, propagation, or preservation of fish, game, mollusks,
        or crustaceans and all fines and forfeitures imposed by any court for the violation of
        any such law shall be used and expended exclusively for the protection,
        conservation, propagation and preservation of fish, game, mollusks, or crustaceans
        and for the administration and enforcement of laws relating thereto. The Legislature
        may provide for the division of money derived from such fines and forfeitures."

At the time of its adoption in 1942, the provision's purpose was stated as follows:

                "Senate Constitutional Amendment No. 1 is a very simple amendment. It
        simply freezes all moneys collected by the Fish and Game Commission from all
        sources into the Fish and Game Fund to be used solely by said commission for the
        propagation of fish and game for law enforcement in the protection of fish and game
        and all other matters pertaining to the lawful and legitimate expenses of the
        commission. It also provides that the Legislature may legislate for the division of
        moneys collected from fines and forfeitures in connection with law enforcement of
        the Fish and Game Code. The necessity of this amendment to the Constitution arises
        from the practice of the State in borrowing money from special funds and paying it
        back in a very unsatisfactory and uncertain manner." (Ballot Pamp., Gen. Elec.
        (Nov. 3, 1942), p. 13.)

                We construe section 9 of article XVI of the Constitution "in accordance with the
natural and ordinary meaning of its words." (See Amador Valley Joint Union High Sch. Dist. v.
State Bd. of Equalization (1978) 22 Cal.3d 208, 245.) The constitutional language does not allow
the use of fish and game fines for activities other than the protection or propagation of fish and
game. Neither expressly nor by necessary implication may other activities be funded by such fines.


   4
    "The General Fund consists of money received into the treasury and not required by law to be
credited to any other fund." (Gov. Code, § 16300.) "From these moneys all appropriations are paid
which are not made payable out of any other especially named fund." (Ingram v. Colgan (1895) 106
Cal. 113, 118.) In short, General Fund deposits are available to pay any of the state's general
expenses.

                                                    3.                                             92-303

                We have examined in detail the ballot pamphlet discussing section 9 of article XVI
at the time it was adopted in 1974. (See Amador Valley Joint Union High Sch. Dist. v. State Bd. of
Equalization, supra, 22 Cal.3d at 245-246 ["when . . . the enactment follows voter approval, the
ballot summary and arguments and analysis presented to the electorate in connection with a
particular measure may be helpful in determining the probable meaning of uncertain language"].)
Although the term "exclusively" was removed from the constitutional mandate in 1974, no
substantive change from the previous language or purpose was intended. (See Ballot Pamp., Gen.
Elec. (Nov. 5, 1974), pp. 31-32 ["it makes only technical changes in the Constitution"].) We view
the current constitutional language as requiring the expenditure of fish and game fines solely for fish
and game protection or propagation activities. (See 66 Ops.Cal.Atty.Gen. 480, 484 (1983).)

                While the constitutional directive may be traced back to 1942, as indicated, the
language of section 13003 has its origin even earlier. (Stats. 1915, ch. 412; Stats. 1933, ch. 73.)
This explains the seeming inconsistency between the statute ("unless otherwise provided by law .
. .") and the mandate of the Constitution providing for no exceptions as to the use of fines from fish
and game offenses. (See 20 Ops.Cal.Atty.Gen. 110, 112 (1952); Ops.Cal.Atty.Gen. No. N.S. 4579
(1942).)

               In examining the specific issue of whether fish and game fines may be deposited in
the state's General Fund, we first address the scope of the Legislature's law-making authority. In
Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691, the Supreme Court reviewed
the applicable principles:

                ". . . Unlike the federal Constitution, which is a grant of power to Congress,
        the California Constitution is a limitation or restriction on the powers of the
        Legislature. [Citations.] Two important consequences flow from this fact. First, the
        entire law-making authority of the state, except the people's right of initiative and
        referendum, is vested in the Legislature, and that body may exercise any and all
        legislative powers which are not expressly or by necessary implication denied to it
        by the Constitution. [Citations.] In other words, `we do not look to the Constitution
        to determine whether the Legislature is authorized to do an act, but only to see if it
        is prohibited." [Citation.]

                 "Secondly, all intendments favor the exercise of the Legislature's plenary
        authority: `If there is any doubt as to the Legislature's power to act in any given
        case, the doubt should be resolved in favor of the Legislature's action. Such
        restrictions and limitations [imposed by the Constitution] are to be construed strictly,
        and are not to be extended to include matters not covered by the language used.'
        [Citations.]"

                   In keeping with these principles, it is a cardinal rule of statutory construction that "[a]
statute should be construed whenever possible so as to preserve its constitutionality. [Citations.]"
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) "It is
. . . settled that when the terms of a statute . . . may reasonably be construed to avoid conflict with
a constitutional provision, they will be so read. [Citations.]" (Building Material & Construction
Teamsters' Union v. Farrell (1986) 41 Cal.3d 651, 665.)

               Here, we believe that Penal Code section 1463.001 may only be harmonized with the
Constitution so long as the "75 percent transferred to the General Fund" is found inapplicable to
fines for fish and game violations. A contrary construction of the statute would render it
unconstitutional.


                                                     4.                                              92-303

               In 44 Ops.Cal.Atty.Gen. 8 (1964), we analyzed a similar situation. We concluded
in our 1964 opinion that the state's Fish and Game Preservation Fund could be abolished but only
if the moneys collected were "earmarked" in compliance with the constitutional mandate. We said:

               "If the Fund were abolished, the moneys collected under laws relating to the
       protection, conservation, propagation or preservation of fish and game would have
       to be earmarked in whatever fund they were deposited for expenditure in keeping
       with the constitutional mandate." (Id. at p. 10.)

The state's General Fund, as previously noted, does not meet these conditions. (See Gov. Code, §
16372; Willens v. Cory (1975) 53 Cal.App.3d 104, 107-108; 62 Ops.Cal.Atty.Gen. 562, 566-567
(1979); 20 Ops.Cal.Atty.Gen. 259, 261-262 (1952); 7 Ops.Cal.Atty.Gen. 58, 59-60 (1946).) It is
available to pay the state's general expenses. Deposit of fish and game fines into the state's General
Fund would be inconsistent with the purpose of the constitutional mandate as expressed at the time
it was adopted by the electorate. (Ballot Pamp., Gen. Elec. (Nov. 3, 1942), p. 13.)

                Finally, in 52 Ops.Cal.Atty.Gen. 69 (1969), we examined the language of section
13003 in conjunction with Penal Code section 1203.1, requiring a county to deposit the fines
collected by its probation department "into the county treasury and placed in the general fund." We
concluded that the Penal Code provision was a general statute controlled by the more specific
provisions of section 13003 when dealing exclusively with fish and game fines. We stated:

               "A conflict exists between section 1203.1 of the Penal Code and the
       constitutional mandate executed through section 13003 of the Fish and Game Code.
       This is because there is no assurance that fish and game law violation fine money
       placed in the county general fund will be expended exclusively for fish and game
       conservation pursuant to the constitutional mandate. . . .

               ". . . In applying this rule [that a specific statute governs over a general
       statute] to section 1203.1 of the Penal Code and section 13003 of the Fish and Game
       Code, the specific particular statute, section 13003 of the Fish and Game Code, must
       prevail. This is especially true in light of the fact that there is no assurance that the
       constitutional provision which gave rise to section 13003 of the Fish and Game Code
       would be carried out if the fine moneys were deposited in the county general fund.
       The county general fund consists of money `not specially appropriated to any other
       fund.' Gov. Code § 29301. Each county has a special fund known as the County
       Fish and Game Propagation Fund (Fish & G. Code, § 13100) created for the purpose
       of carrying out the directive of section 22 of Article XIII of the California
       Constitution. Money deposited in the general fund is not money appropriated to the
       County Fish and Game Propagation Fund.

                "We conclude that Sonoma County properly paid to the State Treasurer one-
       half of the fines collected for fish and game law violations pursuant to section 13003
       of the Fish and Game Code. We further conclude that the one-half of the fines
       retained by the county should be deposited in the County Fish and Game Propagation
       Fund pursuant to section 13003 and 13100 of the Fish and Game Code even though
       they were collected procedurally under section 1203.1 of the Penal Code."

                 Similarly, in the present situation, Penal Code section 1463.001 must be governed
by the more specific provisions of section 13003 in keeping with the constitutional mandate. The
transfer of fish and game fines into the state's General Fund would not satisfy the Constitution, since
such deposits would be available to pay the state's general expenses and would no longer be

                                                  5.                                               92-303

available exclusively to fund fish and game activities. While the latter activities could be funded
from General Fund moneys,5 such "a very unsatisfactory and uncertain" practice was what the
constitutional mandate was intended to prevent. (Ballot Pamp., Gen. Elec. (Nov. 3, 1942), p. 13.)

                In answer to the question presented, therefore, we conclude that fines for deposit in
a county's fish and wildlife propagation fund may not be transferred to the state's General Fund.

                                             * * * * *





   5
   Activities relating to the protection or propagation of fish and game that might be funded from
money deposited in the state's General Fund include those of the Department of Fish and Game (§
13004, subd. (b)), the Fish and Game Commission (§ 13004, subd. (c)), the California Tahoe
Regional Planning Agency (Gov. Code, § 67100), the Sea Grant Program of the University of
California (Pub. Resources Code, § 6217, subd. (d)), the California Tahoe Conservancy (Gov. Code,
§ 66907), the Department of Forestry and Fire Protection (Pub. Resources Code, §§ 713-714), the
California Coastal Commission (Pub. Resources Code, § 30330), and the San Francisco Bay
Conservation and Development Commission (Gov. Code, §§ 66630-66633).

                                                 6.                                          92-303
