COMMERCIAL FISHING LAW. See also opinion of July 16. July 22, 1909. Mr. Merlin Wiley, Prosecuting Attorney, Sault Ste. Marie, Michigan. Dear Sir-I am in receipt of your letter of the 20th inst., in which you request further information in regard to the proper construction of Act 153 of the Public Acts of 1907. As stated in my opinion to you under date of July 16th, this act makes it unlawful to use for the purpose of commercial fishing or for the purpose of catching fish to be offered for sale in any of the waters bordering on this state, any kind of a boat, tug or launch, except row boat, unless such boat, tug or launch shall be registered and license issued therefor. You wish to know if this act applies to an employee of the owner of an unlicensed boat engaged in fishing without a license in contravention of said act, which employee is engaged solely as a deck hand, not having any part in the management or control or use of the tug or boat. It is my opinion that this statute applies to all persons engaged in operating the boat while used in unlawful fishing, whether such persons be owners or employees. It is my opinion that a person employed as a deck hand under such circumstances accepts such employment at his peril. The operation of the boat under such conditions must be deemed to be in participation with the illegal act of fishing, the extent of the participation being immaterial. In the case of Commonwealth v. Richardson, 142 Mass. 71, it was held that a person who paddles a boat in which another is fishing in violation of the statute may be convicted of illegal fishing within that state as a participant in the offense. I reach the conclusion above indicated by reason of the fact that the statute expressly makes it unlawful to use an unlicensed boat in the fishing operations covered by said statute. Very respectfully, AUDITOR GENERAL. After the legislature has appropriated a sufficient amount to take care of a deficiency in the general fund, and directed that that amount be raised by taxation, the Auditor General has authority to issue warrants upon the general fund for the payment of liquidated claims, although there is no money in the fund at the time the warrants are issued, out of which the State Treasurer can then pay such claims. State institutions to which such warrants are issued cannot discount the warrants. Hon. O. B. Fuller, Auditor General, Capitol, Lansing. July 22, 1909. Dear Sir-I am in receipt of your communication of the 22nd instant in which you ask whether or not you have authority to issue warrants upon the general fund of the state for the payment of liquidated claims when there is no money in the general fund out of which the State Treasurer could pay such claims. For reply thereto would say that the question of the authority of the Auditor General to draw his warrant under such circumstances arose the latter part of the year 1908, and it was then held that under the facts and circumstances existing at that time the Auditor General had no authority to draw warrants upon a fund which is exhausted. The situation at the present time is entirely different. The legislature of 1909, appropriated a sufficient amount to take care of the deficiency in the general fund and directed that that amount be all raised by taxation this year. There is, therefore, at the present time a fixed appropriation made by the legislature sufficient to meet the demands upon the general fund. The appropriation having already been made by the legislature, I am of opinion that you would have authority to issue warrants against this fund. These warrants, of course, would not be payable until the general fund was reimbursed by the taxes collected pursuant to the appropriation made by the legislature. The distinction noted is clearly pointed out in the case of Law v. People, 87 Ill. 385, 399. The warrants issued against this fund to state institutions or any agency of the state to which the money goes to be disbursed for the use and benefit of the state, could not, however, in my opinion, be discounted by such state institutions or agencies as this would be equivalent to the state discounting its own paper; it would, in effect, be borrowing money and paying interest thereon. Employes to whom such warrants are issued may, of course, discount such warrants. LAW GOVERNING RETURN OF REGISTRATION FEES. Any person who has made application for registration before Board of Registration in Medicine and paid registration fee is entitled to the return of such fee upon withdrawing application. This sum is to be included in the expenses of the board and returned by the Auditor General from the general fund to which these sums are placed. Where there is fee charged for examination, person is not entitled to return of fee after examination, but is entitled to the return of such fee at any time prior to examination upon with drawal of application. July 28, 1909. Hon. Oramel B. Fuller, Auditor General, Capitol, Lansing. Dear Sir-I am in receipt of your letter of recent date, in which you request my opinion as to the authority of the Board of Registration in Medicine, under Act 237 of the Public Acts of 1899, and Act 164 of 1907, to refund any fees, after once receiving them, before being deposited in the state treasury; also, the authority to return fees paid and accounted for by the Board of Registration in Medicine and deposited in the state treasury, where no examination was had of the applicant or certificate of registration issued. It is my understanding that these questions arose by reason of the application of one F. S. Hunter for registration, under subdivision 3 of Section 3 of Act 164 of 1907, which is an amendment to Act 237 of the Public Acts of 1899. It appears that the said F. S. Hunter made application for registration under said subdivision and paid to the Board of Registration a fee of $50. Subsequent thereto he withdrew his application and now requests a return of the amount paid, which was accounted for by said board under Section 5 of said Act 237 and deposited in the state treasury. With respect to applications under said subdivision, it is provided therein as follows: "The fee for registration from applicants of this class shall be fifty dollars." It is at once apparent that the statute makes no provision for the payment of a fee under this subdivision except for registration of the applicant. This fifty dollars, strictly speaking, would not become the property of the state and properly credited to the general fund until a certificate of registration had been issued to the applicant. The only question relating to this specific instance is, how shall the money be returned to the applicant. Section 5 of Act 237 of the Public Acts of 1899, provides that all moneys received by said board shall be paid to the state treasurer monthly and shall be credited to the general fund of the state, the incidental and traveling expenses of said board and such salary to the secretary as said board may fix shall be paid from such fund only. The incidental and traveling expenses are approved by the Board of Registration in Medicine and sent to the Auditor General of the state, who is required to draw his warrant upon the state treasury for the amount due as in the case of other bills and accounts under the provisions of law. The amount paid to the general fund through these acts is made available for the compensation and expenses of said Board, as aforesaid. In other words, the Auditor General is made the auditing officer under this act. I can see no good reason why, if this fee is to be returned to the applicant, it should not be paid and accounted for under Section 5 of said Act 237, rather than to have such claims presented to the Board of State Auditors for allowance by that board. In similar cases, it is my opinion that the Board of Registration in Medicine would have authority to return fees which had been covered into the state treasury, where no certificate of registration was issued. Under the first subdivision of Section 3 of said Act 164, the legislature has made a different provision with respect to the fee for examination. This subdivision requires the fee for examination to be paid prior to such examination. If the examination is had, although the applicant does not register, the fee should not be returned. Where application is made for an examination, but withdrawn prior to such examination, I think the fee should be returned if demanded by the applicant in the manner in dicated. Any moneys collected or received by said board, or returned by said board to the applicant, under cicrumstances as above set forth, should be fully accounted for to the Auditor General. AUDITOR GENERAL. RAILROADS. TAXATION. The Detroit, Grand Haven & Milwaukee Railroad Company has no claim against the state for over-payment of taxes for the years 1898 to 1902 inclusive. See also opinion of July first. Hon. O. B. Fuller, Auditor General, Capitol, Lansing. July 28, 1909. My Dear Sir- In reply to your letter of July 15th submitting to me for my opinion the account of the Detroit, Grand Haven & Milwaukee Railway Company against the state for overpayments on its taxes for the years 1898, 1899, 1900, 1901 and 1902, will say that I am of the opinion that it is not a legal claim against the state and that aside from the legal question there is no equity in it, and my opinion is that you decline to make payment of the same. I herewith return the claim as per your request. Very truly yours, SCHOOL LAW. Married children under the age of twenty years should be included in the census of school children. July 28, 1909. Hon. L. L. Wright, Superintendent of Public Instruction, Capitol, Lansing. Dear Sir-The opinion of this department has been requested upon the question of whether or not married children under the ages of twenty years should be included in the census of school children. The law provides that in all school districts, except in incorporated cities having a population of three thousand or over, the director, or a person or persons appointed by the board "shall take the school census of the district and make a list in writing of the names and ages of all the children who are five years of age, and under twenty years of age, whose parents or legal guardians reside therein, the names of said parents or guardians, giving street and residence number in villages and cities." It also provides that in all incorporated cities or special legislative district having a population of three thousand or over, the secretary of the board of education, or other person or persons employed by the board of education, shall take the school census of such city by wards and that "each enumerator shall make a list in writing of the names and ages of all children who are five years of age and under twenty years of age, whose parents or legal guardians reside in the ward or portion of the ward allotted to said enumerator, together with the names of said parents or legal guardians, giving the street and residence number in each case." The law in each case also requires an affidavit by the person taking the census that the same is a correct list of the names and ages of all the children between those ages residing in the district or ward. It is also provided that in taking such census the director or enumerator shall not include "the names of any child or children in reformatories or prisons; nor the names of any child or children in asylums, almshouses, or other charitable institutions, except as follows: 68 (a) Children in such institutions who regularly attend the public schools. (b) Orphans whose parents at the time of death resided in such school district or city. Children of either class shall be included in the district or ward where such institution is located, except children in class (a) where the parents, or either of them, reside in the city or district, and in such cases Indian children the legal residence of the child is that of the parent. shall not be included in any census, unless they attend the public school or their parents are liable to pay taxes in the district or city. Domestics, bell boys and other servants, if entitled to be included in the census, must be recorded at the residence of their parents or legal guardians." (Sec. 4687 C. L. as amended by Act 218 of 1903, and Act 36 of 1905). It will be noted that the law requires the person taking the census to make a list of all children who are five years of age and under twenty years of age whose parents or legal guardians reside in the district. The only children between those ages that the person taking the census is not authorized to include therein are children coming within the classes enumerated in the provision above quoted. In view of the provision which requires a census of all children between the ages specified and the fact that the law contains a provision expressly defining what classes of children between those ages shall not be enrolled, among which is not enumerated married children between the ages of five and twenty years, I am of opinion that it was the intention of the legis lature that such married children whose parents or legal guardians reside in the district should be included in the school census. Respectfully yours, JNO. E. BIRD, OSTEOPATHIC REGISTRATION LAW. Examinations must be held before the board and not individual members of the board and must be at regularly called meetings. Examination must in all cases cover all subjects mentioned in the statute. August 18, 1909. Dr. Edythe F. Ashmore, Secretary, State Board of Registration in Osteopathy, 213 Woodward Avenue, Detroit, Michigan. Dear Madam-I am in receipt of your letter of the 12th inst. in which you submit two questions relative to the osteopathic law: First, as to whether the board may delegate to one member the power to administer an examination at a time and place other than a regularly called board meeting; second, may the board lawfully register persons licensed under the medical law by giving them an examination in the subjects of anatomy, physiology, theory and practice of osteopathy, and waive the examination of the other subjects required by the statute. In reply to the first of these inquiries, will say that Section 1 of Act 162 Public Acts of 1903, the "Osteopathic Registration Law," contains. this provision : "The board shall meet in Lansing on the first Tuesday of September |