                                                                    .




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&NI;;;M$TT~
BY:         9
AWrLJ:wb
Encl.
