Untitled Texas Attorney General Opinion ( 1945 )

Hon. Gibb Gilchrist, President This Opinion
Agricultural & Mechanical College of Texas Overrules Opinion
College Station, Texas ,#o-6017 & o-5918
in so far as they
conflict
Dear Sir: Opinion No. O-6903
Re: Authority of Board of
A. & M. College to purchase
additional land for state
experimental substation
under facts submitted
Your request for opinion has been received and carefully con-
sidered by this department. We quote from your request as follows:
"Yesterday I handed to you an Abstract of title and a
suggested Form of Transfer of 165.81acres of land which we
have arranged to purchase adjoining the property already
owned by Substation No. 7 near Spur, Dickens County, Texas.
With this I am attaching a certified copy of the action of
our Board of Directors dated July 28 authorizing the purchase.
"Payment for this land is to be made from the sales funds
accruing from the sales from Substation No. 7 Which we seek to
enlarge. These funds are now deposited in a local bank and.
subject to payment by~the Comptroller of this College upon
proper authorization.
"Purchases of additional land for the substation have
been made under the provisions of Articles 136 and 139, Re-
vised Civil Statutes and have been made ,overthe past 20
years under authorization of these laws and the opinion of
the Attorney General dated May 23, 1925, Question 1.
'Will you kindly examine the Abstract and Transfer and
if found satisfactory, give us your opinion thereon in ac-
cordance with the minute of the Board of Directors authoriz-
ing this purchase."
We quote from t,heMinute you enclosed as follows:
"MINUTE No. 148 - 45
Hon. Gibb Gilchrist - Page 2 (0-6903)
"The Texas Agricultural Experiment Station is hereby
authorized to purchase through the Spur Substation Sales
Fund approximately 165 acres of land comprising all the
Northeast Quarter (NE l/k) of H. & G.N. Railway Company
Survey No. 247, Block No. 1, situated In Dickens County,
Texas, and adjoining the lands of Substation No. 7, sub-
ject to the following conditions:
"1. That the purchase be approved by the Attorney
General of Texas;
"2. That the land be appraised by at least two
disinterested qualified appraisers;
“3. That the land be surveyed by the County sur-
veyor or by a qualified licensed surveyor.
“4. That the title be approved by the Attorney
General; and
“5. That the purchase price be not in excess of
$50.00 per acre, based on the actual number
of acres, plus the cost of abstract and sur-
veying.'I
Articles 136, 137, 138 and 139, Vernon's Annotated Texas Civil
Statutes, read as follows:
"Article 136. Purposes
"There shall be established at such places in this
State as the board hereinafter named may deem proper,
experiment stations for the purpose of making experiments
and conducting investigations in the planting and growing
of agricultural and horticultural crops and 80118, and
the breeding, feeding and fattening of livestock for
slaughter. Proceeds from the sale, barter or exchange of
crops raised on any of said experiment stations shall go
to defray the expenses of operating the same.
"Art. 137. Main station
"The experiment station located at the Agricultural
and Mechanical College in Brazes County which is in part
supported by the Federal Government shall remain at said
point as a permanent institution. It shall be known as
the Main State Experiment Station, and shall be under the
supervision of the Board of Directors of such college.
Such Board shall have the authority to accept from the
Federal Government such aid in its support as may be
i
. ,- .- -
Hon. Gibb Gilchrist - Page 3 (0-6903)
provided by Congress. All other experiment stations of what-
ever character, now or which may hereafter be established un-
der the authority of this subdivlsion shall be considered
sub-(ltatioqs.
"Art. 138. Supervising Board
"The Board of Directors of such college is vested with
the authority, duties, and powers conferred by this subdivi-
sion upon said Board, and shall exercise a general supervi-
sion and direction over all sub-experiment stations estab-
lished hereunder.
"Art. 139. Powers of Board.
"The Board shall have power:
"1. To establish sub-experiment stations at such places
in this State as it shall deem proper, in addition to those
now in operation.
"2. To abandon or discontinue any sub-station which may
become undesirable for experiment purposes, and if deemed
necessary to establish others in their stead at such other
places in the same county as it shall deem advisable.
"3. To sell any land or other State property used in
the operation of an experiment station when so abandoned,
and to apply the proceeds of such sale in the purchase of
other land and property for the establishment of experiment
stations. (Act6 1st C. S. 1913, p- 98)".
We quote from H. B. 173, Acts of the 49th Legislature of Texas,
1945 (Current appropriation act for A. & M. College and other state edu-
cational institutions) as follows:
1,. . . For the purpose of paying the expenses incurred
for administering the Pure Feed Laws in accordance with the
provisions of Articles Nos. 3872-3881,inclusive, of the Re-
vised Civil Statutes of Texas, 1925, and amendments thereto,
there is hereby appropriated to the experiment stations of
the Agricultural and Mechanical College of Texas out of the
receipts accrued to the credit of the Pure Feed Fund for
each of the fiscal years ending August 31, 1946, and August
31, 1947, such amounts thereof as shall be necessary for
the efficient administration and operation of said Pure Feed
LaWS. The unexpended balance in said Fund may be used for
any of the purposes herein appropriated for the Agricultural
and Mechanical College, or for the purposes of CondUcting
Hon. Gibb Gilchrist - Page 4 (0-6903)
experiments with feeds by the Texas Agricultural Experiment
Station and for such other purposes as the Board of Directors
of the Agricultural and Mechanical College of Texas may deem
advisable, provided that any salaries paid or supplemented
therefrom shall not exceed those paid for the same or similar
services in the Main College." (Underscoring ours)
The Pure Feed Fund is a special fund in irhichthere are deposited
the tag and certification fees collected by A. & M. College on all feed-
ing stuff used or sold in this State. The fees are paid to the Director
of the Texas Agricultural Experiment Station at A. & M. and by him de-
posited in the State Treasury. Article 3875, V. A. C. S., provides in
part as follows:
II. s 0 So much of the inspection tax and penalties col-
lected under this title shall be paid by the State Treasurer
to the treasurer of the Texas Agricultural and Mechanical
College as the director of the Texas Agricultural Experiment
Station may show by his bills has been expended in perform-
ing the duties required by this title, but in no case to ex-
ceed the amount of the inspection tax and penalties received
by the State Treasurer under this title. Id. Sec. 5”
We quote from the Opinion of the Attorney General of Texas,
dated May 23, 1925, Vol. 273, p- 300, Letter opinions of the Attorney
General of Texas, referred to in your letter as follows:
"Questions.
"1. 'Under the law are the directors of the experi-
mental stations of the A. & M. College authorized to buy
additional lands without the consent of the Legislature
for the purpose of en experimental station?'
“2. 'If they have such authority, then are they
authorized to use funds accruing from other experimental
stations and divert the same to the purc'haseof lands
for one particular experimental station??
"Answers.
"Answering your first question you are advised that
by the Acts of the First Called Session 1921, page 14,8,
the powers originally held by the governing board of ex-
perimental substations were transferred to the Board of
Directors of the Agricultural and Mechanical College.
The provision of aaid Act which was intended as a sub-
stitution for Articles 14~ and 14pp and lkq of the Texas
Complete Statutes of 1920, is in the following language:
..
Hon. Gibb Gilchrist - Page 5 (o-6903)
"'The Board of Directors of such college are vested
with the authority, duties and powers conferred by
this subdivieion upon said Board and they shall ex-
ercise a general eupervision and direction over all
experiment stations eetablished hereunder.'
"'The Board shall have power, first, to establish
experiment stations at such place6 in this State as
it shall deem proper in addition to those now in op-
eration.'
"From the above it will be observed that the Board
of Directors of the Agricultural and Mechanical College
has the power to establish experiment stations and it
would seem that such a power carries with it by neces-
sary implication the power to acquire through purchase
all lands which in the judgment of said Board may be
deemed necessary to the perfect and complete establieh-
ment of said experimental stations and in event said
Board should determine at any time after the experimental
station has been located that additional acreage to be
used in connection with said substation is needed for the
purpose of completely establishing said substations and
is required in the operation thereof, we see no reason
why the Board would not have the power to make the pur-
chase of said additional acreage. Therefore, answering
your first question you are advised that the Board of
Directors of the Agricultural and Mechanical College has
the power and authority to acquire through purchase from
the owner the two additional sections of land mentioned."
"Considering the second question above, you are ad-
vised that it seems Article 148s which provides that the
proceeds from the sale, barter or exchange of crops raised
on any experimental station shall go to defray the expenses
of operating the same, refers only to the particular experi-
mental stations raising such crops and said provision pro-
hibits the use of such proceeds to defray the expenses of
operating any other station and said proceeds cannot be di-
verted to defray the expenses of operating another station.
If the proceeds from the sale, barter, or exchange of crops
raised on any one of said experiment stations should be
available for the benefit of another station, the same could
be used only to defray the expenses of operation and could
not be used for the purpose of establishing a substation or
could not be used for the purpose of purchasing additional
acreage for one of the substations for the reason that pur-
chase money for additional acreage cannot be consideredz-
penses of operation. Therefore, the Directors of the Agri-
cultural and Mechanical College do not have the authority
Hon. Gibb Gilchrist - Page 6 (0-6903)
to use the proceeds or funds accruing from crops on other
experimental stations and divert the same to purchase lands
for another experimental station. (Underscoring ours)
"Having answered your first question in the affirmative,
we deem it necessary, however, to add that the power and
authority of said Board to make such a purchase cannot be
exercised until funds are available for that purpose through
an appropriation by the Legislature."
Opinion No. O-3100 of this department holds that the statutes
authorizing the Department of Public Safety of Texas to install and op-
erate a police radio broadcasting station are broad enough to authorize
the purchase of land upon which to establish the station. We quote from
said opinion as follows:
"The statutes above quoted authorize the installation
and operation of a police radio broadcasting system for the
purpose of preventing crime, detecting and apprehending law
violators, and for the directing of the activities and func-
tions of the law enforcement agencies of the State, the coun-
ties and the municipalities. Thus, the Department of Public
Safety could purchase suitable land on which to install and
operate said radio station as a part of said authorized
broadcasting system with moneys appropriated for the instal-
lation and equipment of such a system; first, if appropria-
tions of the department are broad enough to cover such a
purchase; and second, if such a purchase could be designated
a necessary and incidental expense in carrying out the power
granted to the department to install such a system.
"We think such a purchase is authorized by the General
Appropriation Bill for the two-year period ending August 31,
1943, known a.8Senate Bill NO. 423, p* 1231, 47th Leg. 1941,
wherein it provides for an annual appropriation for the de-
partment of Public Safety, Main Division, designated as Item
106, as follows:
"'106. Postage, supplies, arms, wire communication,
radio equipment, radio supplies, printing and contingent ex-
penses; hospitalization and medical services when injured in
line of duty, funeral expenses when death results from in-
juries received in line of duty; surety bonds, books, all
necessary expenses of operating a police training school at
Camp Mabry for training peace offi.cersgenerally and members
of this department, and any other necessary departmental ex-
penses, including equipment. 0 . 0 0 s D . 0 0 $55,9500000'
"We have underscored the words 'any other necessary de-
partmental expenses.' Under the emergency circumstances
Hon. Gibb Gilchrist - Page 7 (O-6903)
quoted in your letter the purchase of suitable lend appears
to be necessary and incidentalto the eatablishrnentof an
efficient broadcasting system; suitable land in this respect
might possibly be regarded a6 part of the necessary radio
equipment, and the expense for obtaining mxue may be prop-
erly regarded &a one of these neceseary departmental expen-
8e8 provided for in the above quoted item 106.
"In the case of Herring v. Houston National Exchange
Bank, 269 S.W. 1031, wherein there was a purchase by the
Texas Prison Commission, without the approval of the Legis-
lature, of a mill and site, part of the consideration being
land on which the mill was situated, it was held and ap-
proved by the Texas Supreme Court that there was no viola-
tion of V.A.C.S. Supp. 1922, Art. 6184, forbidding the pur-
chase of 'land' for the prison system of Texas, without the
Legislature's approval, the purchase of the land being only
incidentalto the purpose of establishing a mill and factory
for the said system a8 authorized by law.
"In the quoted Herring case, the Supreme Court of Texas,
in the face of an existing statute which forbade the purchase
of land by the Texas Prison Commission, unless approval of
the Legislature wa8 first secured, looked upon the forbidden
purchase of laud as incidental to the authority granted to
the Commission to establish a mill and factory and upheld
the act of the Commission. There exists no similar statute
which would limit the land purchasing power of the Depart-
ment of Public Safety. It appears, therefore, that the pro-
posed purchase of suitable land for the erection of an au-
thorized radio station by the Department of Public Safety
under said.circumstances may with greater certainty be de-
termined as necessary and incidentalto the power given it
to install and operate such a station.
"In the ca8e of Terrill v. Sparks, 104 Tex. 191, 135
S.W. 519, the Supreme Court of Texas, in discussing an of-
ficial's authority under an appropriation bill, quoted from
Sutherland on Statutory Construction, a6 follows:
"Whenever a power is given by statute, everything
necessary to make it effectual or requisite to at-
tain the end is implied. It is a well-established
principle that statutes containing grants of power
are to be construed so as to include the authority
to do all things necessary to accomplish the object
of the grant. The grant of an express power carries
with it by necessary implication every other power
necessary and proper to the execution of the power
expressly granted. Where the law commands anything
Hon. Gibb Gilcbrist - Page 8 (0-6903)
to be done, it authorized the perfomnance of whatever
may be necessary for executing its commands.'
"Furthermore, it is a well known fact, that broadcast-
ing stations canuot be located on any sort of land. Quoting
from your letter: 'For efficient transmission of messages
by radio, it is necessary that the aerial and ground system
be erected on certain types of soil. D . .I It is only rea-
sonable to impute that the Legislature was sufficiently in-
formsd in these matters when it created the power in the De-
partment of Public Safety to install and operate a radio
station, and provided appropriations to install and operate
same. In view of the fact that the Legislature did not at-
tempt to specify where the station should be located and did
not confine it to any particular ground, the Department of
Public Safety was authorized necessarily to ascertain for it-
self suitable land for such purposes and to pay for same wi.th
appropriations granted it.
"Under the emergency circumstances of the case and in
the light of the statutes authorizing the establishment of a
police radio broadcasting system, it 18 our opinion that the
purchase of suitable land on which to erect a radio station
for the Department of Public Safety Is necessary and incidental
to the purposes of preventing crime, detecting and apprehending
law violators, and for proper enforcement of the powers of your
department, that the same is authorized, and the money appro-
priated in Item 106 of the Department of Public Safety appro-
priation (Senate Bill k23? p0 1231, 47th Leg. 1941) may be used
for the purchase of said suitable land."
Also, to the same effect see Opinion No. o-6579 of this department.
We enclose herewith copies of Opinions Nos. O-3100 and 0-6579
for your information.
Section 44 of Article III of the Texas Constitution provides:
"The Legislature . . . shall not . 0 , grant, by appro-
priation or otherwise, any amount out of the Treasury of the
State, to any individual, on a claim, real or pretended,
where the same shall not have been provided for by pre-ex-
isting law."
As shown above, the Board of Directors of A. & M. College is
given the statutory power to establish experiment and sub-experiment
stations as the Board sees proper. It is our opinion that such a broad
power carries with it by necessary implication the power to acquire
through purchase all lands which, in the judgment of the Board, may be
deemed necessary to the establishment of such stations and in the event
Hon. Gibb Gilchrist - Page 9 (0-6903)
the Board should determine at any time after the experimental station
or sub-station has been located that such station or sub-station needs
additional acreage for the purpose of more perfectly and more complete-
ly establishing said station or sub-etation, we think the Board would
clearly be authorized to purchase such additional acreage for such pur-
poses. We therefore hold that Articles 136 and 139, V. A. C. S., eupra,
constitute sufficient "pre-existing law" to support appropriation6 avail-
able for the purchase of the lands inquired about.
It is our opinion that the Board of Directors of A. & M. Col-
lege is authorized to purchase the lands inquired about and pay for same
from any unexpended balances in the Pure Feed Fund.
In your letter you stated that "payment for this land is to
be made from the sales funds accruing from the sales from:Substation
No. 7”. We assume that the sales you are referring to are the sales
of crops from the substation. The section of Article 136, dealing with
such crop sales is as follows: '.
11
. . . Proceeds from the sale, barter or exchange of
crops raised on any of said experiment stations shall go
to defray the expenses of operating the same."
The 1925 opinion of this department, quoted above, specif,icallyheld
that the purchase of additional acreage for an experimental farm could
not be considered an expense of operation. We agree with this holding
and think it is sound, We therefore accordingly hold that the Board
of Directors of A. & M. College does not have authority to expend the
sales funds of substation 7 (acquired from sales of crops from said sub-
station) for the purchase of the lands inquired about.
Opinion Nos. O-5918 and 0-6017 of this department are hereby
overruled in so far as they conflict with this opinion.
If the Board desires to purchase the land inquired about from
the Pure Feed Fund a new minute should be entered to that,effect. If
such is the Board's desire, please send us a copy of a new minute au-
thorizing the purchase from the Pure Feed Fund end we will then write
a separate title opinion on the title to said land. In the meanwhile
we will hold the abstract until we hear from you further.
APPROVED NOV 8, 1945 Very truly yours
Is/ Carlo6 C. Ashley ATTORNEY GENERAL OFTFXAS
FIRST ASSISTANT APPROVED By /s/ Wm. J. Fanning
ATTORNEY GENERAL OPINION Wm. J. Fanning
COMMITrEE Assistant
BY /a/ BWB
WJF:BT:IM CHAIRMAN