Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN

Honorable Geo. H. Sheppard
Comptrollerof Publia Accounts
Austin, yexas
Dear Sir:

lnalude expen

attention to the following:
The biennial approp InvestmentDivision
of the Board of Zduoatfonby

vestment section
$ 15,soQ.OO # l!5,300.00"
In the exercise of hi8 veto power, the Governor drew lines
through items Nos. 4 and 5 of such approp#ation. You request our
Opinion as to whether the members of the,,F$6ard
of Education till be
eon. Gee. H. Sheppard,Page 2

authorized to charge their traveling expense accounts against the
appropriationof u6,000.00mad+ for '*Board&embers-per diam."
In the rider appended to the general appropriationbill,
which Is senate Bill No. 427 by the 46th Legislature,we find the.
rollowing:
"~rurelingexpenaa&. (a) It Is provided that no
expenditureshall be made for traveling expenses by any
department of this State In excess of the amount of money
Itemized hetieinf'orsaid purpose. This provision shall
be applicablewhether the Itam Tor traveling expanses Is
to be paid out of the 6pproprIatIonfrom the General
Fund, from feea, receiptsY)rspecial funds collaatedby
virtue of certain laws of thie %&a, or from other funds
(exclusiveof sederal funds) available for we by a depart-
mentln
It Is well settled that when the oompeneatlonof an ottioer
Is laft to conntructlonIt must be most rarorablyconstrued in favor
of the government. Eastland County vs. EIazel,288 6. U. 5l.S;Burke
va. Bezar County, 271 S. %. X52; lloLennanCounty v. Boggesa, 157
S. ih‘.
346; 34 Tax. Jur. p. 508. As said by the Suprama Court of
South Carolina In ScroggIe vs. Scarborough,160 8. E..696, "GeEarally
the term *peF diem* as uaeU In connectionwith compensation,wages
or ealary meens pay ror a day*8 servfces." We'quote rra Paey vi
Nolan, 7 S. 'd;.
(2d) 815, by the Supreme Court of'Tannaeeea:
*The term 'per dIem*,aa used in Article 2, Seotlon
23, Is synonymouswith Wsalary.* The term *salary'Imports
the Idee of coqansation ror personal service, and not
the repayment of money expended In the discharge of the
duties of the ofSloe. Throop, Public Officers, 441."
%'ehave Inspectedthe aorrespondingappropriationmade to
the board of Education In 1935 as shown at page 1097, Volume 2,
Acts of the 44th Lagisleture. 4he approprIetIon:therewe8 "per
diem end expenses, IncludIh8 survkys . . . &3,000.00n for eeah year
of ~thebiennium. The appropriationmade by the 43th Laglslatura
In 1937 as shown at page 1418, Genarel and Speaial Lawa, 48th Lag-
Isleture,we8 *per diem and expanses . . .$S,OOO.OO*for each year.
It has bean suggestedto us that In all probabilitythe word8 'and
expenses"ware left out of the present appropriationby aecldant.
vieare not at liberty to so aasuma but, on the contrary,must ascribe
to the LegIaLRturesome purpose In leaving out such words. The fact
fion.Gee. il.bheppard,Page 3

that hrtiole 2d75b-u) i;evIsedCivil itotutea, provides that the
aeebcrfiof the Xate $8~~3 of :.ducatlon shell be paid t10.00 per
day hhen in actual atttndnccenptinboard zcc~.t~~~s end shall be
aTtItled to actuel trnvelin~and other neceesery es9enscs Incurred
In the discharge or their dutlea doc;snot dispense with the neo-
emSty or having~?!n appropriationbefore aithcr such co,TensetIon
or e.xpensee may be paid by the ctate. An. 8, LC~C.6, ConatItutIon
of Texas; LIgtttoot vs. ano, 140 j. 2.. 89; Llndec vst zialey, 49
. 2.0Quote free the oplnitn of AstIc Gaines in the
&.ter case 88 r0u0w3:
vThere is nothIng in We Constitutionr.hich pro-
hibitn the legisl&urs tram linzIt1~ any apprcprlationby
any apt aordc crpreeelveof thalr Intent. Ehould they
even la51 to appropriatea salary liked by the conetitu-
tion, the offietr arfected by It Is without remedy before
the courts. . . It would satm that, when the logieleture
Se or opinion that the compensationfixed by law for the
eervicss of en officer Is excemviva, they should anend
the law and reduce It, but that, until 80 reduced, they
ohould nrqkcappropriationfor the coqensatlon tMch tbs
law provides. But, should they iail~to do thlo, It is
simply IIcase In wblch the otiicer haa e loge1 right,
but no rem&y, excspt an applicationto another legleln-
tuso. Under our con& Itutlon,wI4&out an appropriation
no moncspcap.be dram irox the treasury. . .-
Fz-omthe ebove, we think It beoo~~eaevident that ymr
question mst be cnswered in the negative.
'Ycmrsvary truly

ATTORKEYGEblERA%
OF TEXAS