Untitled Texas Attorney General Opinion ( 1939 )

Pebruary 15, 1939 Ronorable 000. B. Sheppard Comptrollrror Publla &ooounta Austin, Tares Dear Sir: opinion lo. o-43 Rer Claim of Rwell la110 for rent for building ge;;d to State Tax we are in reoript or hour letter oi February 4, 1939, togotherwith the follwIng enclosurrs: 1. Requisition for otfioe spaoe fra the State Tar Bbard to fha Stat8 Board of Control, Pated August 24, 1937, 8howIng the amount of rpaoe needed. Call for bid8 by the State Board of Control, dated Septkber 3, 1937. 8. Bld of Rwell Xallr, dated September 7, 1937, addressed to the State Board o? Control and orferIn,gthe fourth floor of the lalle Building for a period of two afr from September 1, 1937, for an annual rent of r2400 payable at the rate of $200.00 per month. 4. Letter from the State Tax CommissionerAlbert I[.Daniel to Mr. J. R. Ham, Seoretary of the State Board ot Control, 4ated September 10, 1937, urging aoceptanoe of the Nalle bid. 8. copy of letter, dated September 14, 1937, irom the State Board :oiControl to the Stete Tax Board adrlalng aoceptanoe of the Nallo bid. 6. Additional to those instruments,we have been furnishedwith the original letter, dated September 14, 1937, mentioned above, and with oopy of e letter dated September 1, 1937~.rrom Albert K. Daniel, State Tax Com- aissioner, to Mr. #alla advising of the desire of the State Tax Board to oontinus the lean. on the fourth floor of the Nalle Building at the same rental whloh had been paid in the past (whioh mu undqrstendwas $200.00 per month). Eon. 000. II. Sheppard, ?obruary L5, 1939, Page Z 7. Original lottor from Hr. Nalle to Xr. Albert X. Daniel, State TAX Oolmlasloner,dated September 4, 1937, aoknowledglngraoelpt of said letter dated September 1, 1937, endloo)Ptlng the offer therein made. ./ 0. Copy of latter dated 8eptamber 14, 1937, from tha State Board of Control to Mr. RiGelI. Nalle advising that the Board h a l doaepted his bid. 9. Ph&batatio oopy of Senate Bill 80. 119 of the eurront.Laglalature. 10. Letter from Jerome Sneed, Jr., Attorney, *, to Albart II.Daniel, 8 ate tax Commlaoloner, dated February 4 t, 1939, adrlalng that%. lalla la standing on his rantel oontraot and la olalming a llan upon all furniture; flx- turoa and lqulpment looated in tha leased premlaas and ~111~ hold the aaim until his 01al.m?or rent is latia?aotorll~ dlapoaed of. You ask : our opinion ln response to the following questiona: "1. 1. auoh ?urnlt&e and fixtures lubjeot to .la lien olaiaed tha landlord by the landlord in this ease? -2. Ia the appropriationfor ofrloe rent made to the Wats Tax Board in the General Appropriation tl.lll;ll arallebla for the paymant,o?the rent "s. I? FOU anawar the foregoing queatlono in the neeatlre, then plaaae advise this department tha prooedure to follow in obtaining possession o? the furniturep d l~ulpmantna The Regular Session of the 43th Leglaletureby Seneto Bill No. MS, known es the Departmentalhneral AppropriationBill, at page 1478, mada the biennium appro- priation ror the malntenanoeof the State Tax Board, and under Item 18 of the ap roprlatlonafor that board, it reoltes: v?rioe rent, i2400 for laoh year of the biannlum ending August 31, 1Q3Q.W -~ . . . , I J Eon. Qeo. 8. Shepbard, February 15, 1939, Page s The lpproprlatlono? the sum or #2400.00 per year for the biennium beglnnl,ngSeptember 1, 1937, for ofiloe rent for the State Tax Board, unquestionably oerrled with it the authorityfor the Board to house lta~l? ln rented ouartera at an expense not exoeedlng the amount approprleted. We think thla necesaarllyenvisaged the right to make some kind a? en agreement for the renting of orfloe apeoea. Xn the oeae or Johnson vs. Smith, 246 8. W. 1013, Supreme Court, the Comptroller,Lon A. Smith, had entered into a two year oontraot with oertaln persona for them to oolleot oarteln inharltanoe taxes. The law authorizing the making of the oontraot,~aaliepa&led.Thorearter, but within the term of the oontraot, oolleotIonawere made and the County Tax Colleotor aid the ten per oent oom- mlasIona to the oollecbora. 8his was a Plead=%8 aotlon brought by Jo-on, the Tax Colleotor,to oompel the Comptrollerto oredlt his eocount with the amount thus paid the oolleotors. we 00`` peregrapha 2 and & Or the opinion, as ?ollowai “(2) Raapondent lnalats that the artlola OS the statute under whloh the ootitreot wee medo - , did not authorize a oontreot for any fixed or de?lnlte period of time, and thererore the oontreot .“~ .`` ran without authority and unenforoeeble. It would be unreasonableto hold that the Leglaleture au- thorized and lnatruotedthe oomptrollorto make a oontraot,rlthsome suitable person or persona rho would render diligent aid ltithe oolleotlon of lnherltanoetaxes and periorm aerrloea that would entail muoh outlay o? time, lmrgy, and expense, and yet 1Mt same to a oontreot at will. lo suitable peraon or person6 would be rllllq to enter into auoh a oontreot. ‘t must be lm- plied thet’the authorlty given lnoluded the ., 1 ~fk;~eof a oontreot for l‘glron or definite period . 1 ‘; “(8) The able attorneys for respondent* insist that to hold that the Leglaldture oould :. not repeal the law so as to tsrmlnate this end ;; , .” .i llmllar oontreotawould be egalnat pub110 pol,l- ,! oy - _.an+ ``aaatrouato th! pub110 good. The atata, ~/; ._.’ like ~ndlrld~ala, lapeolally when ontoring into .c’. private oontraota,mu~atfirst roll oonalder Fhet aontraota it will,enter into or authorize, ‘with the view of having tham parf~rmed aooord- * t .I . . Hon. Ceo. B. Sheppard, YobruarF 18, 1939, Page 4 terma. when the Stats beOOm8 a party to a oontraot with a oltlzen, tha Sam law applies to it as underllka oondltlon governs the oontreota of lndIvIduala. Anderson v. Robl- son (Tex. Sup.) t29 8. W. 489, t3S S. U. eS3, and oases thorn olted, *The writ of .mndamua is grehted.* In Fort Worth Oavelry Club V. 8hoppard, 83 l 8. 1. (2d) 460c Supreme Court, a mandamus wee sought to oompal the lasuanoe of a state warrant for the payment of *oartl?laateaissued ln llau of defioienoywarranta.” my The Adjutant Oonoral had purported to ieaae an anory for flva years at #285.00 par month. The appropriation for the Adjutant (#anoral’s Department had been Wt.&d. The question raall Involved was whather the rental oon- traot wee talla. 4 he Buproma Court held that it was not, in the oeurae of the opinion sayings . “A oareful reading of the above quoted statutes olearly demonstrates that none of them t oontaina any expreae lenguage authorizing the Adjutant . Qanoral to rent or laese armories for the National Guard ?or a period o? flro yaara, or, for that matter, for any porlod. When wa oome to oonatrue luo ha tetutea, together with the above quoted appropriationaot, it la reasonably olear to us that the Adjutant Ganeral h&d the implied power, wlthln the reasonable llmltatIona o? such eppro- prlatlon, to make uontraota for the period and anb no further. This raot lllegal.W The letter from the State Tax Commlasloner to Mr. Nalle, dated September 1, 1937, an4 the reply thereto, dated September 4th of the same year, would be au?flolent In themzelreato oonatltute a renewal of the then expiring lease on the fourth floor of the Nelle Building at $200.00 per month for the biennium. rurthermore, the other lnstru- ments end oorroapondenoo mentioned above b&eaa the Stats Tax Board end %he Board of Control and between the Board o? Control and Mr. Nelle would be sufilolent to oonatltuta a oontragt, provided the Board of Control had the’rlght to make the oontreot. Thus whether the right of oontraot ra- aided with the Board of Control or the Btete Tax Board is e quastlon whloh ln ltael? la not neoesaary ?or us to de- termine alnoe’the above mentioned papers show that both ~3’;,. .~ euthorltieamade auoh a oontraot. .&``.::> a:,: 7;~ ..**;`` i><:*,a Tha oontraot that was made did not lxO8ed tha Ta.,;.,‘~ c,~?*~< “:.:.‘.a~ ~, i”;,i r: anount ;~, approprlatod nor did it attempt t&go bsyond the f*$+’ ‘i.vy;;;*‘,.,i, ;:.:: ~, ;,r~w-/^:G _.*...~ ,%<, ,1‘;. ~_ : j_,.... in. ,_ .,.,. .~ Eon. Gao. H. Sheppard, February 15, 1939, Page 6 ,.fl biennium for whloh the appropriation was mede. We think ,/” the right to meke the lease agreement lnoluded the right :’ to mike the moat advantageouskind of agreement that oould be made so long a6 the State Tax Board aonflned ltsel? to the appropriation. It oould hardly be expected that a reelly advantageous oontraot oould be made whloh did not axtend to rome definite period of tlms. Our answer to your aeoond question la in the airiraative. We understandthat you do not now desire an answer to your flr8t and third questions in view of the above anner to pour aeoond one. Yours very truly ATTORNNY -&IL OF TEXAS By (Slrnsd) Glenn R. Lewis Asslatant BEL:M APPRovm: . (Send.) Gerald C. yIann ATTORNEY GENERALOF TEXAS