Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Honorable G%o. H. Sheppard Comptrolltr or Fublic Aooount.% Aurustln, Texas Dear Mr. Bhtppard: four letter or De In obtklng our rttatlon of the tbovt liot, you oubmlt the to11 A 841, tits 0r the gislature, there ue Pund $4c4,968.15 Qtate Treasury by s or the ltoond rty-fourth Leglalature that a aommir- d tor the Investment o? thie #4,968.15. re has not been anything done in the ct with the ~rorl%lon% of HOUM Bill vt m%ntloned, %nd since the veteran8 oi the Spanieh Am%rloan War hate now applied to th$s department for u%e of this wne~y, this department rte- peotf'ully request% your opinion a% to whether or not the Comptroller 1% now authorized to transfer rrom the General Revenue Fund the #4 968.15 to be invested by the oomml%%lonprovided for in raid Eouet Bill No. 363. Hon. C&o. H. Bhtppard, January 24, lQS9, Rags 2 *Iiyou hold that thlr wney i;now 8ubjtot to tran8ftr trtntrtr from the Otntral lkettnut ma, Worn ?und, thn.wlll $&en.wlll an ap- propriation bl the Leglrlaturt be ntotrtary fo auth- orize the toanriDrlon tomuil~rlonto expend the to the lnttrtat’ dcirlred lnttmat'dcirireb the inrtitmtnt rrom the inrtitmant 0s 0s thir tuna?* At the outret, we d8h to point out that the turnor $4.968.15 In pention wa% not dtrlted rrom any rosin tr taxation or 8ourte 0r rtvtnut. It rtprt8tnts on the tontrary, the balanct Of an orlglaal fund Of #4&&O l pproprlattd by tht Congress ot the United 8tate8 under Chapter 647, 85th Congress, 2nd Steelon, July 8, '1898, ior the purpon or rtlabur8lng the Governors or States tnd Territories ior t tnttt lncurrtd by them in aiding the United State% to ra18e @n3 organhe, mb 8upply and equip the Volunterr &my or the United State% In the then existing war wlth Spain. By Chapter 445, 86tih Congrq.88, Maroh 5, 1899, Amtnda- tory of the lb OT0 oltdd Act, detailed &ijroOtdure wa% outlined fix the dliburremnt of this fund to ofil~ers and tn118ttd men, whioh bt, UIDW other thlq8, OOntala8 thl8 8lgnifiOMt plVTi60: rfforldtd further, that where ltatea and Ttrri- tories hart aid amounts to the ofilter8 not and YII or any part l$eitot the pay allowed them by this &tt the 8Me 8hall be paid by the State8 and Ttrrldt8 dirtot to the oiilctrt and mtn, and no wney tllowtd by this Act ror orricers and men 8hall bt oortred into the trtarury oi the State or Territory.' In the ra0e 0r tua unequiTooal protirrlon'and dteplte the iaot that ruoh rund or the balance thtrtor belonged to otilotrs and tXm8ttd men or vhe Volunteer Army or the United States in the liar with SpaInW, the 8amt was by Senate Bill 74 Chapter 27, Aote 2nd Called Staelon, 88th Ltglalaturt, oottrtd into the Qtntral Revenue Pund, or In other words, Into the State Treasury. *NO 83MOia1 mention i8 made Or 8uoh md in that Aot. This Act was a general act abolirhlng all rpeolal funds In the State Treamry %tt a%ide therein for 8ptf3ial and partleular purposes and transttrrlng and plaoing wntys in such fund Into the General Revenue Wnd, with oertain txttptione. The orrioial eorrtrrpondence attaohed to your letter reTtal% that thlr 8um of $4,968.15 under Inquiry was earrled on tht rtoords of the Tmanwy Department and Comptroller*8 Department a8 -'The Voluntary War wlth Spain Fund". Regardless of whether this fund was in the State Treasury before the paesage of the Aot lboll8hlng rptclal fund%, it was undoubtedly placed thtrtln by 8uoh hot 8o a8 to rtqulrt, under Hon. Cto. H. Sheppard, January 24, 1939, Page 3 brticlt 8, Section 6, Conrtitution oi Tixat;an appropriation or transfer or eamt by Act of the Ltglslatur6. Vor thI8 purpose and In reoognition Or the fact that It w&e wrongfully oorared Into the State Treaeury the Ltglrlaturt, under Bourt Bill Ho. 369, Chapter 541, bets Beg& 6t8rion, 44th Leglrlaturt, transferred %uoh moneys in the 8ptOiiiCi 8um or #4,968.15 rrom the Central Revenue Bund and plaoed rtmt In the-de OS & rptcially oreattd CommI%slon Of the Voluntary Army of the War with Spaln,oompostd of the GOY- trnor of Ttxa8, the Adbjutant Central or Texts and the Department Commandsrjor the United Spanlrh K&r Veterans of Texas, and their 8ucot%aor% In 0rfi0t, to be inrested ror the u8t and btntrlt or aged and Indigent RpanIrh-&aerlcan War Vettran8, their rldowe and 033han8. From thI8 brltt tongre8%lonal ma leglslatlrt hI8tory or.thir muohly trtXi8ftrrtd fund, the question emerges &s to whe- ther Houet RI11 Bo‘; 363 Ch. S41, Acta Regular St88lon, 44th LtgI%laturt , could legally o trate to acaompllsh the worthy pur- 8t8 8ought thereby. m rt Puttantly but advI8edly are impelled r o the tonolu%lon that the NIP of $4,968.15, which was the 8ubjtct ratttrjor the above oited act, %a% not funds or wntys of the atate of Texas ror dieporrltion thtrtundtr, but rather wneye and fund% In and 60 which the United State% ot Amtrioa had, and now hae, reTer8Ionary right, olrim or inttreet. This 0OnOlUSiOn not only rOiiOW8 from the Acts 0r Congrtee htrefnabove olttd and tia- Ttrted to, but from the exprt88 langWIg Oi & lttt6r opinion writ- ten by the Comptroller Central or the United State%, under date funs 22, 1931, to the Commander, Department ot Texas, United 2panleh liar Veterans, irhloh we quote: “It may be rtattd that Is & rituatlon 8hould arise, after the funds have been withdrawn from the State Tnarury and pl&Otd at the disposal 0r the Gorernor or the State of Texas for payment In aocordanct with yed- era1 rtatutte, where they oan not be u8td for the purpoee for whloh originally turned;orer to the Corernor of the State the United State8 ha%.:a reversionary lntereet In the unexpended fund, and the balanoe re- maining appears proper ror returning to the United States with a ettttmtnt 8howing by total8 for item8 the grand total expended. The balanoe returned would be for covering into the Ttaaury of the United State6 a8 a aptolal tund unoer an appropriate titlt.,~ suoh ae v8p0r Volunteers, Spanish War, State Strvloe - Ttxt8.* Any claima thereafter presented would be for developing by the State authorities, and, Ii approved by the Governor, forwarded to this orriot for the rtatement or a settlement payable under the sptolal fund.* , I . . . Hon. Geo. H. Sheppard, January 24, 1939, Page 4 The Aots Or COn@t88 treating thi8 tun4, ot which the turnor #4 968.i5 18 the btltnot, did not proride that 8uOh tund mlght be intested In bondsjof the Unlttrrlty oi Texarror any other 8tcuritiee 80 that the lntertrrttherefrom light be paid to Indigent ridowe and orphane oi 8panl8h-Amerloan War Vtterane. The naturt,'ofthe Inreetmtnt provided by the Aot of the Texas Legislature and the creation or a Commirslon to make ruch lnvest- ment, rea8onably &LIsureP,ror all praotloal purpo8t8, the 8artty or the OOl'pU8. But, In legal oonttmglatlon, the right to Invest these fUX¶e 18 tantamountto the right to di8po86 Or them, and this the LegI8lature.:orTtur oould not ao without en enabling act of Congrt88, Indicating the oompltte rtllngulrhment and waiver bp the United 8tatts ot any tlalm or revtr8lonary Interest lnthi8 fund. Ye l.a o tuntwtrt or the lauaable purpose8 rought to be &ooomplished by the Aot In question, and both the Legislature 0r Text8 aa the comanatr, Department or Texas Unlttd'Spanleh Yar Vottrans rhould be oommended for their efforts to this end, /-- but these tOn8id6ratiOn8 do not <er the plain provi%ion% Of the Acts of Congtrrs which ortated thlrr fund and which lrmetgovern Its ultimate diipOIla1. We are acoordin y, under law required to adrioe you that Eouee Bill Ho. 363 h. 341, &As Regular Session, 44th Legl8lature of Texas, it lntrrtotln to tranartriron the Gtneral .RertnutrUnd to the Cammi8elon ortated by 8ald Aot, for Inve8tmtnt P'=P-e8, 8aId 8~m ot $4,968.15. Tours.rery truly l LTTOR NEY- o r TExA8 APPROVED: