.
Eon. 63O..:H.: shepp&xi option..No.~0-6503.
Comptroller’ of Public Ret. Whether ,the Comptroller of Public :
Acoounts ” .Acoounts. is authorized to issue’ a war-
Austin, Texas. rant in payment of the claim of the
Austin Construction Compauy, Dallas,
.Texas, wnder the facts stated, and re-.
Dear Sir: lated matters.
Your letter requesting&he opinion. of this. department.
on the questions
- stated therein is in part as follows:
-?I a@%ttachLng hereto ai cialmflled by the Iiighway
De&m&it .covering monthly e~stlmatsi in: razor ‘of: Austin
Construction Company. Dallas, ‘Texas, in the original
amount of $160,226.7& being supplemental and final esti-
mate No.. 9:..for work dohe..for~ the period August 1, 1939,
to ~Aug~st.28~ 19395~and;ask year department.wh,e,$hsr’the
Ctnnptroller*s Department is authorltied to issue warrant
ln payment of, th@~tipad ..b.altiue nf $300..04 ‘cm this. claim?
-IIf so, then would the warrant issue agaLn.st the ap.
proprlation made for the. year 1939, or would it issue
against current appropriation?
“In: connection with this request,. I:refer you .to your
ODinion No. 5713 and to Brticle&357.; V.&C.&
“If, in your opinion, this department is authorized
~to issue warrant in paymen of this claim, then would
i
Article 4357 apply to any claim arising fron the Highway
Department?”
The claim of the Austin Construction Compan
Texas, presented with your inquiry is for the sum of &2E”)
Article 4357, Vernon’s Annotated Civil Statutes, Ls as
follavls:
‘When~claims and accounts are. received, it shall
be ascertained If there are funds available therefor;
and the person making the examination shall indicate
such fact by marking his Initials ‘upon such claim;
and if there are no funds available, that fact shall
be written or stamped upon such claim; and the same
shall be held to await th~c authority .to issue .a proper
.~,
Hon. Sea. Ii. Sheppard,‘,qage, 2 tO-65031
warrant therefor. Nonclaim .shall be paid from apprd&ia-
tions unless resented to the Comptroller for payment
within two (2 Y years from the’ close. of the flsoal year for
whiah suah appropriations were made, but any claim not pre-
sented for payment within such period may be presented to
the Legislature as other claims for which no appropriations
are available.. When a claim has been audited and warrant
drawn therefor, the claim shall be numbered with the same
number as the warrant* and such claim shall be flled numer-
ically according to. ciasst : ‘general, a sspeolal;* *pension, 8
respectively. There’shall be kept an-alphabetical-index of
claimants, either by filing the duplicate warrants in alpha-
betical order, or by such ‘other method of Indexing as may
be found most advisable. After the expiration of two years,
such claims shall be removed from the files and otherwise
securely stored and preserved as rec0rds.e
Brt. 6$74e+5, :?..A+&:$ provides: .
..,..
‘IAll monies’now or hereaft&deposlted In the State .~
Treasury to the.Gcredit of’ the State ~Higbway.yundIncluding
allFederal-;Aid’money-deposlted’to. the:~credit’~of%aid phnd .“~
under the terms of the Federal Aid Highway Act, shall be
subject to appropriation by the.Legislattu?e-for the speci-
fic purpose of..the improvement of ‘said~.syst,em of tt!tate
high”,y ~by-the,,:~W$e~Hi.&y,,~ Pepa+ent l
F$,;‘,“A~‘* _,
. “8e.ktion~6~&f,i,&iblh.. ~)++*; the.~s~~~~~~~o~~titution..
providesr” T ~‘;,
18No.moneyshall be drawn from the Tr‘easury’but in pur-
suance of specific appropriations made by law; nor shall
any appropriation of money be made for a longer term than
two years, except.by the first Legislature to assemble un-
der this Constitution which may make the neuessary appro-
priations to carry on the government until the assemblage
of the 16th Legislature.”
In the kase of Johnson et al vs. Ferguson et al, 55 S.
W.(2d) 153, referring to Qrt. 6674q-5, it was said:
IlIt will be observed .that section 5 of chapter 13
(Vernon’s Ann.Civ.St. art. 66749-5) is a literal copy of
art. 6674e, Vernon’s Ann.Civ.St. with the portion we have
italicized omitted. If it did no more than to subject the
stated fund to future appropriation, it was. equally as use-
less and unnecessary as section 5, chapter 13. It is not
contended that this article repealed any existing appro-
priation; or did more than to allocate all moneys present
and future deposited to the ‘State Highway Fund’ to the
.
Hon. Geo. H. Sheppard, page 3 (0-6503)
t improvement * of the ‘System of State Highways by the State
Righway Department. t -As such allocation we think it had
the manifest purpose of removing such fund, beyond all doubt
or peradventure, from the general revenue fund of the .state
and of devoting it, but not appropriating it, to the stated
purpose. It served the double purpose of a declaration of
policy and a direction to the state treasurer that the fund
was not to be invaded for purposes other than those named
in the article.
“The clear purpose of section .!i of chapter 13 was to
repeal the omitted portions of article 6674e.It but con-
tinued in effect the previous allocation, omitting therefrom
the previously included county-aid fund. It may be urged
that this was unnecessary since articles 6674c, 6674s and
66749, which provided for such aid, were expressly repealed
in section of chapter 13. Rut even so, a reenactment 0s
article 6674 e, so as to conform, through the omitted por-
tions, to the other provisions of chapter 13, cannot justly
be classed as an altogether purposeless and useless act.
“Even from a strictly grammatical viewpoint the
future tense in the phrase tshallbe subject to the ap-
opriation! does not necessarily-a ply to appro@riation.
Ft could as correctly be applied to t g e word lsubject.l The
phrase is clearly susceptible of this interpolation, ‘shall
at all times he eafter be subject to appropriation Dade and
$0 be made. I Viewed in the light of all the surrounding
circumstances, we are clear in the view that the former and
not the latter interpolation expresses the legislative in-
tent. It
In the case of Texas Co. vs. Schriewer et al, 38 S.W.
(2d) 141, it is said:
“Under the statute, .a11 funds belonging to the highway
department are ‘deposited with the State Treasurer to the
credit of a special fund designated as ‘The State Highway
Fund,’ and shall be paid only on warrants issued by the
Comptroller upon vouchers drawn by the chairman of the Com-
mission and approved by one other member thereof, such vouch-
ers to be aCCODpani.edby itemized sworn statements of the
expenditures.’ R,S. art. 6694. By article 6672 of the stat-
utes, it is provided that such funds shall be expended by
and under the supervision of the state highway department.
See, also, R-S, arts. 6673, 6674; Vernon’s Ann.Civ.St a arts.
6674c, 6674d, and 6674e. It is apparent -from the provisions
of these statutes that the state highway department is given
the control and supervision of the state highway funds and
that it has the authority to say when the funds shall be
expended and when they shall not be expended. The state
treasurer is merely the depository of the funds. The highway
-. .
Hon. Geo. H. Sheppard, page 4 (O-6503)
department Is authorized to enter Into the contract on the
part of the state for the construction of, state highways
and to make a binding contract for the payment of the con-
tract price thereof e Vernon’s Ann.CIv.St. art. 66741. The
highway commissioners must authorize the payment of the es-
timates due under the contract and no installment can be
paid until It Is so authorized by the highway commissioners.
We think the state highway department and the commissioners
thereof are the oiilcers whose duty It is to pay such claims,
and that notice to that department Is sufficient to impound
the funds.w
In the case of Smith et al vs. Texas Co., 53 S.W.(2d)
774, regarding the State Highway Funds, It Is said:
“It thus appears that the Legislature has established
a department and clothed It with full and complete authority
to make ~contracts for the Improvement of state highways and
created a special fund out of which the obligations made by
such department shall be discharged. The highway commission
is charged with the duty of paying these obligations from
this special fund. When consideration Is given to the stat-
utes vesting control over designated state highways in the
state highway commission, and authorizing such body to con-
tract and expend funds set apart for that purpose, it be-
comes obvious that such department is the one whose duty It
is to pay contractors for work performed upon state highways.
It Is true that the state treasurer actually pays out the
money on deposit to the credit of t.he highway department,
as Is generally the case with all obligations made by a
state department for and on behalf of thee state. He does
this, however, as a mere disbursing officer and on vouchers
Issued and approved by a majority of the highway commission.
He has no discretion in paying claims of contractors when
they are properly approved by the highway cornmIssion. Cer-
tainly such ‘discretion was Intended to be lodged with the
official whose duty It Is to pay off and discharge such ob-
ligations. The Legislature might have made provision for
the special highway fund to be deposited In some private
banking Institution. If It had done so, such bank would ac-
tually pay the vouchers Issued by the hfghway department,
but under such circumstances It could In no proper sense be
considered the official whose duty it was to pay contrac-
tors for services performed under their contracts.”
Since 1937 the Legislature has appropriated the balance
of funds on hand at the beginning of each year of the biennium
for the certain things mentioned In each appropriation act and
for the use of the State Highway Department for the establishment
of a system of State highways and the planning, construction and
maintenance thereof, as contemplated and set forth In Chapter 1,
Ron. Gee. R. Sheppard, page 5 (0-6503)
Title 116, and ‘Chapter 186, General Laws of the Regular Session
of the 39th Legislature,, and amendments thereto.
After carefully considering the question Involved, It
is our opinion that Art. 4357 does not apply. Although the work
done for which the claim is presented was done In 1939, the pay-
ment of this claim would not be from the appropriation for the
biennium Including the year 1939. The Legislature has conferred
upon the Highway Commission authority to make contracts for the
construction, maintenance, etc., of highways. If said Art. 4357
Is applicable and the claimant Is forced to go to the Leglsla-
ture for an appropriation, it would be permitting that body the
power to defeat a legal obligation of the State created by legal
contract. It Is our further opinion that Sec. 6 of Art. VIII of
the State Constitution would not be violated by the payment of
the claim under consideration. There Is no appropriation of mon-
ey made for a longer term than two years.
In view of the foregoing authorities, you are respect-
fully advised that It Is the opinion of this department that the
claim of the Austin Construction Company, Dallas, Texas, can be
paid by warrant Issued against the current appropriation. As
heretofore stated, it Is our opinion that Art. 4357 is not appli-
cable to the question under consideration.,.
You are fnrther~ advised that It is our opinion that
yoLr department may legally Issue a warrant in payment of the
claim presented.
You further ask would Art. 4357 apply to any claim
,$ arising from the Highway Department? In answer to this question
It would naturally follow that In view of our answer regarding
the claim under consideration, Art. 4357 would not be applicable
to claims similar to the one heretofore discussed. However,
this opinion Is not to be construed as holding that Art. 4357
would not apply to any claim arising from the Highway Department;
neither Is this opinion to be construed as holding that said Art.
4357 would ,apply to any claim arising from the Highway Depart-
ment e
We will be glad to pass upon any specific claim that
you may desire to present, but we cannot extend this opinion to
any claim that may arise In that there might be certain facts
and circumstances that would alter the answer given to the spe-
cific question answered In this opinion.
- . ..
.
Hon. Geo. H. Sheppard, page 6 (O-6503)
We are returning herewith the claim enclosed with
your Inquiry.
Yours very truly,
ATTORNEY
GENERAL
OF TFiXKS
By /s/ &dell ~Illla~s
&dell Willlams, hssistant
U'PROVEDMAY 5, 1945
/s/ Grover~Sellers
ATTORNEYGENERAL OF TIAXAS
APPROVBD:;F∋;;M$TT~
BY: 9
AWrLJ:wb
Encl.