            mm      Amroxznm~       GENERAL
                       OFTEXAS




                      February 10, 1958



Honorable Robert S. Calvert        Opinion No. WW-364
Comptroller of Publlo Accounts
Austin, Texas                      Re:    The validity of the
                                          claim of A. Q. Elder
                                          in the amount of $152.71
                                          and the authority of the
                                          Comptroller to Issue a
                                          warrant In the payment
Dear Mr. Calvert:                         of same.
           Recently you requested an opinion of this office as
to whether your department Is authorized to Issue a warrant in
payment of a olalm of Dr. A. Q. Elder a8 rovlded for by S.B.
No. 115, Acts 55th Leg., R.S., 1957, Ch. 1196, page 1429. The
following facts are revealed by the file submitted with your
opinion request  and by the records of the General Land Office.
          The N/2 of Sohool Section 2 in Red River County,
located and surveyed by virtue of Certificate No. 1570, issued
to the T.C. Ry. Co., was awarded to C. L. McWllliams Maroh 7,
1900, upon a plication filed in the CteneralLand Office Sep-
tember 28, 18 99, to purchase the said N/2 of Section 2 as an
actual settlor under the classification dry agriculture and
at the appraisement of $2.00 per acre. Thie sale was author-
ized by virtue of Title LXXVII, Ch. 12-A, Revised Statutes of
Texas, 1895.
          On July 3, 1901, C. L. McWilliams and wife conveyed
the N/2 of Section 2 to S. C. McWilllams by deed filed in the
Land Office April 11, 1902.
          On November 4, 1902, S. 0. McWilliams, assignee,
made the required proof of ocaupancy of the N/2 of Section 2
which proof was filed in the Land Office November 7, 1902.
          On July 12, 1902, 3. 0. MoWilllams and wife con-
veyed the N/4 of Section 2 to W. A. Mauldin by deed filed in
the Land Office September 17, 1903 and upon the filing of such
                                                             _Yi   .




Honorable Robert S. Calvert, Page 2 (w-364)

deed the N/4 of Section 2 was aegregated on the records of
the Land Office and placed on a separate account In the name
of W. A. Mauldln.
          On January 28, 1903, S. G. McWilliams paid the in-
terest due on the S/2 of the N/2 of Section 2 and continued
to do so .through1907.
          On November 7, 1908, Miss A. McWilliams paid the
interest due on the land in question and continued to pay
Interest thereon through 1910.
           On December 9, 1911, W. C. Norris paid Interest
thereon.
          On February 11, 1913, A. G. Elder paid interest due
on this land.
          On December 1.6,1916,   A. 0. Elder paid the intereet
due on this land.
          On February 14, 1919, A. G. Elder paid the interest
due on this land.
          On January 3, 1920, A. G. Elder paid the interest
due on this land.
          On December 15,   1920, A. G. Elder paid the Interest
due on this land.
          On January 3, 1922, Dr. A. G. Elder paid the in-
terest due on this land.
          From December 24, 1924, through 1935 interest due
was paid by the following parties: Judge 0. W. Barcus, Austin
Dodd, Jim Jones and Harry R. Jones.
          On January 6, 1943, the sale by the State of the
S/2 of the N/2 of Section 2 was forkYe,eited
                                          by the Land Commls-
aioner for non-payment of interest.'
          On April 3, 1943, the Commissioner of the General
Land Office received kn inquiry from Dr. A. G. Elder concern-
ing the redemption of the S/2 of the N/2, Section 2, T.C. Ry.
Co. Survey in Red River County.
          The Commissioner of the Qeneral Land Office replied
to the aforementioned letter stating in substance that the
purchase rights to the land in question had been forfeited on
January 6, 1943, for non-payment of interest installments.
-’    -




     Honorable Robert S.   Calvert,      Page   3 (m-364)


     This letter further stated that under the provisiona of Arti-
     cle 5326, V.C.S., forfeited school land accounts may be reln-
     stated by the purchasers at any time within five years after
     forfeiture by payment of all past due Interest accompanied by
     a written request for reinstatement.
               On April 10, 1943, payment of delinquent interest
     In the amount of $152.71 was received by the Qeneral Land
     Office from Dr. A. Q. Elder.
               On April 13, 1943, affidavit was received in the
     General Land Office from Dr. A. G. Elder of Deport, Texas,
     which affidavit reads as follows:
          "TO : BASCOM GILES, COMMISSIONER
                OF THE GENERAL LAND OFFICE, AUSTIN, TEXAS
          STATE OF TEXAS
          County of Lamar 8
               Before me, the undersigned authority, on
          this day personally appeared
                         who upon being duly sworn states
          on oath: That'he is the owner or legal repre-
          sentative of A. G. Elder, Deport, Texas, the
          owner of the following described land in Red
          River County, Texas:
          S/2 of N/2 2, Cert.         1570, Grantee-T.C. Ry. Co.
          160 acres
               That the above land has been forfeited
          for nonpayment of interest and affiant hereby
          tenders all delinquent interest and requests
          that this tract be reinstated in acoordance
          with the provisions of Article 5326 of the ,
          Revised Civil Statutes of 1925.
                                            /s/ A. G. Elder
                                                    Affiant
                                           Deport, Texas
                                                   Address
               Sworn to and subscribed before me this
          12th day of April A.D. 1943.
                                   -
                                            /s/ Joe Grant
                                           Notary Public in and
                                            for the County of
                                            Lamar, State of Texas."
Honorable Robert S. Calvert, page 4 (Ww-364)

          On June 1, 1943, the following letter was received
in the General Land Office written by Dr. A. C. Elder:
     "Han, Bascom Cilea, Commissioner
     Of The Qeneral Land Office
     Austin, Texas.
     Dear Mr. Glles:--
          This is to acknowledge receipt of copy of
     your letter to Mr. Harry R Jones of Houston, in
     regard to reinstatement of the account covering
     the S-172 of N-1/2, section 2, certificate 1570,
     T.C. Ry. Co. survey in Red River County.
     And will say in this connection, that I was appointed
     Administrator of The Pat B Stokey, estate at the death
     of Pat B Stockley who was my Uncle, In the final set-
     tlement of the estate some of the heirs wera Indebted
     to Me and the Probate Court gave IM..aLieiion this land
     for the indebtedness of these heirs, and I was only
     protecting My Interest in applying for this reinstate-
     ment.
                              With kindest regards, I am.
                                        Sincerely.

                                  /s/   A.   0.   Elder"
          On April 13,, 1943, pursuant to said payment of delln-
quent interest, affidavit of ownership and re uest for rein-
statement, the account covering said S/2 of N7 2, Section 2,
was reinstated on the records of the Qeneral Land Office.
          Payment of Interest due November 1, 1943, and for     ,
subsequent years through November 1, 1955, was paid by Mr.
D. 0. Lackey of Chicota and Athens, Texas.
          On November 3, 1956, full payment of all remaining
prinaipal and Interest was made by D. 0. Lackey of Athens,
Texas, and Patent Non.385, Volume 26B was issued November 20,
1956, to S. 0. McWllliams, assignee'.

          Senate Bill No. 115 provides in part that the follow-
ing sum of money is directed to be paid out of the sum appro-
priated and set aside by H.B. No. 133, Acts 55th Leg., R.S.,
for the payment of Itemized claims "to pay Arthur 0. Elder,
Honorable Robert S. Calvert, page 5 (a-364)

Deport, Texas, for refund on delinquent Interest on certain
lands in Red Rlver.County, . . . $152.71."
          Although Senate Bill 115 directs payment to A. 0.
Elder of the sum of $152.71 the constitutionality of said
bill is put in question by the facts as above outlined.
          Article 3, Section 44 of the Constitution of Texas
provides In part that the Legislature shall not
     "grant, by appropriation or otherwise, any amdunt
     of money out of the Treasury of the State, to any
     individual, on a alaim, real or pretended, when
     the same shall not have been provided for by pre-
     existing lan; . . .'
          Likewise, Article 3, Section 51 of the Texas Constl-
tution provides in part:
          "Sec. 51. The Legislature shall have no
     power to make any grant or authorize the making
     of any grant of publia money6 to any Individual,
     association of individuals, municipal or other
     corporations whatsoever; . . ."
          Claim under pre-existing law has been held to Include
a common law right as well as a statutory right. Austin Nationa1
Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242; Watkins v. State,
123 S.W.2d 953 (Tex.Civ.App., err. dlsm.).
          However, we are unable to find either a pre-existing
statutory law under whloh this claim arose or a pre-existing
common law right against the State of Texas residing in Dr.
Elder.
          Dr. Elder paid the interest due on the purchase
priae of the land in question for the years 1913, 1916, 1919,
1920, 1921 and 1922. Purchase rights to the S/2, N/2 of Sec-
tion 2, T.C. Ry. Co. Survey in Red River County were forfeited
bythe Commissioner of the General Land Office on January 6,
1943, as provided for in Article 5326, V.C.S., for non-payment
of interest due on the purchase price of same.
          On April 10, 1943, the Land Office received from
Dr. Elder $152.71 for past due interest and penalties. On
April 13, 1943, Dr. Elder filed an affidavit of ownership of
this property in the General Land Office. These acts of Dr.
Elder were done voluntarily, without duress, fraud, or lmposi-
tion with full legal notice that the right to reinstate is
restricted to "the purchaser from the State or his vendees or
their heirs or legal representatives."
Honorable Robert S. Calvert, page 6 (~~-364)

          If.18 also apparent that Dr. A, Q. Elder proceeded
with the reinstatement in order to protect some claimed Interest
in this land. The reinstatement payment tendered by Dr. Elder
presumably accomplished this result.  It kept the land involQed
open to the assertion that any party might make against it r&mr
than blot out by forfeiture and subsequent sale any inchoate
rights which might have theretofore acaured to Dr. Elder and
attached to this land.
          In any event the reaord is devoid of any legal predi-
cate for payment of ,this claim. Under the facts as set out
above. we believe no sommcm law riaht aan be said to arise
agalnh the State. State v. PerlsEeln, 79 S.W.2d 143 (Tex.Clv.
App.) 1934; and see Fort Worth Cavalry Club v. Sheppa$l,S;;5
Tex. 339, 83 S.W.2d 660; State v. Steak Co., 236 S W
(Tex.Civ.App., err< ref., 1951) 32 T J p. 727, Payments, 3
48, 29 T.J. p. 715, Mistake, B 4.    ' .
          Therefore, we are of the opinion that the approprla-
tlon of $152.71 to pay Dr. A. C. Elder provided for by S.B. 115,
Acts 55th Leg., R.S. 1957, ah. 496, violates Sections 44 and 51
of Article III, Constitution of Texas. We advise you that you
are not authorized to issue a warrant in payment of this claim.

                           SUNMARY
          The Comptroller Is not au$horized to issue
          a warrant In payment of the claim of Dr.
          A. 0. Elder as provided for by Senate Bill
          No. 115, Acts 55th Leg., R.S., 1957, Ch.
          496, page 1429. To do so would be a vlola-
          tion of the restrictions imposed by Sections
          44 and 51, Article 3 of the Constitution of
          Texas.
                              Yours   very   truly,
                              WILL WILSON
                              Attorney General of Texas


                              BY Milton Richardson
                                 Assistant
APPROVED:
OPINION COIYMITTER                RRVIRWRDFORTRRATTORNRY
Qeo. P. Blackburn, Chairman       GENERAL BY
Morgan Nesbitt                          W. V. Cteppert
Wayland Rivers
John H. ldinton
