Opinion
January 12, 1972
** Summary **
ADMINISTRATION OF INFANTRY DIVISION MUSEUM The 45th Infantry Division Museum provided for in 44 O.S. 235 [ 44-235] (1971), is part of the military department and has the legal status attributed to a State agency or subdivision thereof. The Adjutant General has the power to expend State appropriated money on said museum as provided for in O.S.L. 1972, Ch. 106, 1 and 2, and 44 O.S. 26 [ 44-26] (1971). Money contributed for the benefit of the museum must be donated as provided in 60 O.S. 383 [ 60-383], 60 O.S. 384 [ 60-384] and 60 O.S. 385 [ 60-385] (1971), said sections providing authorization for the Adjutant General to expend those monies on the museum. Attorney General has received your opinion request wherein you ask, in effect, the following questions: 1. What is the legal status of the 45th Infantry Division Museum as provided in 44 O.S. 235 [ 44-235] (1971)? 2. Does the Adjutant General have the power to expend State appropriated monies for the museum? 3. Does the Adjutant General have the power to expend contributed monies for the operation of the museum and what is the best way to effect such contribution? Title 44 O.S. 235 [ 44-235] (1971) states: "There is hereby created the 45th Infantry Division Museum, to be under the supervision of the Adjutant General. Appropriate State agencies are directed to make available, for display of items of historical significance and necessary space for administration, the building presently occupied by the Oklahoma Wildlife Conservation Department, located in the vicinity of the 45th Infantry Division Headquarters. The building herein referred to shall be made available to the Adjutant General as soon as same is no longer needed by and vacated by Oklahoma Wildlife Conservation Department." Title 44 O.S. 26 [ 44-26] (1971) states: "The Adjutant General shall be in control of the Military Department of the State, subordinate only to the Governor, whose military advisor he shall be. Within the limitations and under the provisions of law, he shall supervise and direct the National Guard within the service of the State and when under State control in all of its organization, training and other activities; shall receive and give effect to the orders of the Governor; and shall perform such other military and defense duties, not otherwise assigned by law, as the Governor may prescribe." By placing the museum under the supervision of the Adjutant General, who is by statute head of the Military Department of the State, the Legislature clearly intended to make the museum a part of the military department. In Mountcastle v. State, Okl., 145 P.2d 392 (1944) the court cited Am. Jur., p. 216, paragraph 47, in stating: "It is the generally accepted rule that the organized militia of the State is a State institution — a governmental agency. It is so recognized by various constitutions." Oklahoma has recognized such agency relationship in Article V, Section 40 of the Oklahoma Constitution, which states: "The Legislature shall provide for organizing, disciplining, arming, maintaining, and equipping the militia of the State." Since the statutorily created military department has the legal status of a State agency, the 45th Infantry Division Museum, being an expanded part of said department, has the legal status attributed to a State agency or subdivision thereof. Oklahoma Session Laws, 1972, Ch. 106, 1 and 2 provide: "Section 1. Appropriation. "There is hereby appropriated to the office of the Oklahoma Military Department, from any monies in the general revenue fund of the state treasury, for the fiscal year ending June 30, 1973, not otherwise appropriated, the sum of Seven Hundred Sixty-one Thousand Seven Hundred Seventy-eight Dollars ($761,778.00), or so much thereof as may be necessary to perform the duties imposed upon the office of the military department by law." (Emphasis added) "Section 2. Officials and employees — Duties and Compensation. "The State Adjutant General shall appoint and fix the duties and compensation of officials and employees necessary to perform the duties imposed upon the State Adjutant General by law." By Title 44 O.S. 26 [ 44-26], the Adjutant General, "shall be in control of the military department . . . and shall perform such other military and defense duties, not otherwise assigned by law, as the Governor may prescribe." Sections 1 and 2 of the 1972 Session Laws, Ch. 106, and Title 44, 26, provide that the Adjutant General, as executive head of the State Military Department, may expend any appropriated monies as may be necessary to perform the duties imposed upon the office of the military department by law, including the hiring of employees to perform those duties imposed upon the Adjutant General by law. As the 45th Infantry Division Museum is under the auspices of the State Military Department, with a duty placed on the Adjutant General to supervise same, it is clear that State appropriated monies may be expended for the museum. Since the statutes are silent with respect to the expenditure of monies contributed for the use and benefit of the museum, when such monies are contributed in the manner required by statute the Adjutant General may expend those funds in accordance with his duties. Title 60 O.S. 383 [ 60-383] (1971) states: "Authority to accept gifts to State — Delivery of property and muniments of title — "Except to the extent that such authority is otherwise specifically vested in some other state officer, board, commission or agency, the Governor of the State of Oklahoma is hereby authorized, in his discretion, to accept upon behalf of the State of Oklahoma, any gift, testamentary or otherwise, whether unconditional or conditional, of any property, whether real or personal or both, to the State of Oklahoma or to any State institution, department or agency; and, in such instances, except as otherwise provided in Section 11216 hereof, delivery of such property, possession thereof, and any muniments of title thereto shall be made to, and receipted for by the State Board of Public Affairs." Title 60 O.S. 384 [ 60-384] (1971) states: "Allotment of property of State institution, department or agency. "Any property involved in a gift, testamentary or otherwise, to the State of Oklahoma or some State officer, board, commission or agency for the use or benefit of a specified State institution, department or agency, whether one or more, when accepted by the Governor and delivered to the State Board of Public Affairs as provided for in Section 3 hereof, shall be, by said Board of Public Affairs, allotted to such State institution, department or agency, in accordance, as nearly as possible, with the terms of the gift." Title 60 O.S. 385 [ 60-385] (1971) states: "Allotment of property — gift for particular purpose. "Any property involved in any gift, testamentary or otherwise, to the State of Oklahoma for a particular purpose or purposes (as distinguished from public purposes generally), when accepted by the Governor and delivered to the State Board of Public Affairs, as provided for in Section 3 hereof, shall be, by said Board of Public Affairs, allotted to the State institution, department or agency, or the State institutions, departments or agencies, if any, which, under the applicable statutes, are charged with the performance of the specified purpose or purposes to which such gift is limited or dedicated." The above cited statutes provide that unless specifically authorized, only the Governor may accept donations or contributions for the State of Oklahoma. The statutes creating the Military Department of the State of Oklahoma do not provide for any person within that department to accept donations or contributions, and therefore, only the Governor may accept donations and contributions for the 45th Infantry Division Museum. By statute delivery is to be made to the State Board of Public Affairs and receipt is to be given by same. Section 384 makes it clear that when any gift is to be made to a State officer, board, commission or agency, for the use of that specific State agency or board, such gift must be accepted by the Governor and delivered to the State Board of Public Affairs and the Board of Affairs will allot to such State institution, department or agency, the gift. Section 385 makes it clear that when a gift is made to the State of Oklahoma for a particular purpose or purposes and accepted by the Governor and delivered to the State Board of Public Affairs it shall be given to the State institution, department or agency which is charged with the specific purpose or purposes to which such gift is limited or dedicated. In order to fully effectuate a contribution or donation for the use and benefit of the 45th Infantry Division Museum, the donation or contribution should be made out to the State of Oklahoma with a specific express notation that the contribution or donation be used for the benefit or use of the 45th Infantry Division Museum. It is, therefore, the opinion of the Attorney General that your questions be answered as follows: The 45th Infantry Division Museum provided for in 44 O.S. 235 [ 44-235] (1971), is part of the military department and has the legal status attributed to a State agency or subdivision thereof. The Adjutant General has the power to expend State appropriated money on said museum as provided for in O.S.L. 1972, Ch. 106, 1 and 2, and 44 O.S. 26 [ 44-26] (1971). Money contributed for the benefit of the museum must be donated as provided in 60 O.S. 383 [ 60-383] (1971), 60 O.S. 384 [ 60-384] and 60 O.S. 385 [ 60-385], said sections providing authorization for the Adjutant General to expend those monies on the museum. (Mike D. Martin)