              OFFICE      OF      THE     ATTORNEY         GENERAL      OF   TEXAS
                                              AUSTIN




    Honorable G%o. H. Sheppard
    Comptrolltr   or Fublic Aooount.%
    Aurustln, Texas
    Dear Mr. Bhtppard:




                   four letter or De

                   In   obtklng         our                           rttatlon of the tbovt
    liot,    you oubmlt      the    to11
A
                                                                       841, tits 0r the
                                                                       gislature,   there
                                                                       ue Pund $4c4,968.15
                                                                     Qtate Treasury by
                                                                    s or the ltoond




                                        rty-fourth      Leglalature that a aommir-
                                        d tor the      Investment o? thie #4,968.15.
                                   re has not been anything done in the
                                   ct with the ~rorl%lon% of HOUM Bill
                         vt  m%ntloned, %nd since the veteran8  oi
            the Spanieh Am%rloan War hate now applied to th$s
            department for u%e of this wne~y, this department rte-
            peotf'ully request% your opinion a% to whether or not
            the Comptroller 1% now authorized to transfer rrom
            the General Revenue Fund the #4 968.15 to be invested
            by the oomml%%lonprovided    for in raid Eouet Bill No.
            363.
Hon. C&o. H. Bhtppard,           January 24, lQS9,   Rags   2


               *Iiyou hold that thlr wney i;now           8ubjtot to
      tran8ftr
      trtntrtr    from the Otntral lkettnut ma,
                  Worn                           ?und, thn.wlll
                                                         $&en.wlll an ap-
      propriation     bl the Leglrlaturt      be ntotrtary fo auth-
      orize the toanriDrlon
                    tomuil~rlonto expend the
                               to             the lnttrtat’
                                                          dcirlred
                                                  lnttmat'dcirireb
            the inrtitmtnt
      rrom the    inrtitmant 0s
                              0s thir    tuna?*


           At the outret,     we d8h to point out that     the turnor
$4.968.15 In pention wa% not dtrlted        rrom any rosin tr taxation
or 8ourte 0r rtvtnut. It rtprt8tnts         on the tontrary,    the
balanct  Of an orlglaal     fund Of #4&&O l   pproprlattd   by tht Congress
ot the United 8tate8 under Chapter 647, 85th Congress, 2nd Steelon,
July 8, '1898, ior the purpon or rtlabur8lng        the Governors or
States  tnd Territories    ior  t tnttt lncurrtd by them in aiding
the United State%     to ra18e @n3 organhe, mb 8upply and equip
the Volunterr &my or the United       State% In the then existing war
wlth Spain.    By Chapter 445, 86tih Congrq.88, Maroh 5, 1899, Amtnda-
tory of the lb OT0    oltdd Act, detailed   &ijroOtdure wa% outlined fix
the dliburremnt     of this fund to ofil~ers     and tn118ttd men, whioh
bt, UIDW other thlq8,         OOntala8 thl8 8lgnifiOMt    plVTi60:
               rfforldtd
                      further,    that where ltatea and Ttrri-
      tories     hart    aid amounts to the ofilter8
                           not                           and
     YII or any part l$eitot the pay allowed them by
     this   &tt the 8Me 8hall be paid by the State8 and
     Ttrrldt8     dirtot    to the oiilctrt  and mtn, and no
     wney tllowtd by this Act ror orricers        and men 8hall      bt
     oortred into the trtarury oi the State or Territory.'
            In the ra0e 0r tua unequiTooal    protirrlon'and    dteplte
the iaot that ruoh rund or the balance thtrtor belonged to otilotrs
and tXm8ttd men or vhe Volunteer Army or the United States in
the liar with SpaInW, the 8amt was by Senate Bill 74 Chapter 27,
Aote 2nd Called Staelon, 88th Ltglalaturt,     oottrtd into the
Qtntral Revenue Pund, or In other words, Into the State Treasury.
*NO 83MOia1 mention i8 made Or 8uoh md in that Aot.          This Act
was a general act abolirhlng     all rpeolal funds In the State
Treamry %tt a%ide therein for 8ptf3ial and partleular        purposes
and transttrrlng   and plaoing wntys in such fund Into the General
Revenue Wnd, with oertain txttptione. The orrioial          eorrtrrpondence
attaohed to your letter    reTtal% that thlr 8um of $4,968.15 under
Inquiry was earrled on tht rtoords of the Tmanwy          Department and
Comptroller*8 Department a8 -'The Voluntary War wlth Spain Fund".

           Regardless of whether this fund was in the State Treasury
before the paesage of the Aot lboll8hlng  rptclal fund%, it was
undoubtedly placed thtrtln  by 8uoh hot 8o a8 to rtqulrt,  under
Hon. Cto. H. Sheppard,    January 24, 1939, Page 3


brticlt  8, Section 6, Conrtitution       oi Tixat;an      appropriation   or
transfer or eamt by Act of the Ltglslatur6.            Vor thI8 purpose and
In reoognition   Or the fact that It w&e wrongfully oorared Into the
State Treaeury     the Ltglrlaturt,     under Bourt Bill Ho. 369, Chapter
541, bets Beg&        6t8rion,   44th Leglrlaturt,     transferred    %uoh
moneys in the 8ptOiiiCi      8um or #4,968.15 rrom the Central Revenue
Bund and plaoed rtmt In the-de          OS & rptcially     oreattd CommI%slon
Of the Voluntary Army of the War with Spaln,oompostd of the GOY-
trnor of Ttxa8, the Adbjutant Central or Texts and the Department
Commandsrjor the United Spanlrh K&r Veterans of Texas, and their
8ucot%aor% In 0rfi0t,       to be inrested ror the u8t and btntrlt        or
aged and Indigent RpanIrh-&aerlcan War Vettran8, their rldowe and
033han8.

             From thI8 brltt tongre8%lonal ma leglslatlrt          hI8tory
or.thir   muohly trtXi8ftrrtd     fund, the question emerges &s to whe-
ther Houet RI11 Bo‘; 363 Ch. S41, Acta Regular St88lon, 44th
LtgI%laturt , could legally       o trate to acaompllsh the worthy pur-
   8t8 8ought thereby.        m rt Puttantly but advI8edly are impelled
r o the tonolu%lon that the NIP of $4,968.15,        which was the 8ubjtct
ratttrjor    the above oited act, %a% not funds or wntys of the
atate of Texas ror dieporrltion        thtrtundtr, but rather wneye
and fund% In and 60 which the United State% ot Amtrioa had, and now
hae, reTer8Ionary right,       olrim or inttreet.    This 0OnOlUSiOn     not
only rOiiOW8    from the Acts 0r Congrtee htrefnabove olttd and tia-
Ttrted to, but from the exprt88 langWIg Oi & lttt6r opinion writ-
ten by the Comptroller Central or the United State%, under date
funs 22, 1931, to the Commander, Department ot Texas, United
2panleh liar Veterans, irhloh we quote:
           “It may be rtattd that Is & rituatlon         8hould arise,
     after the funds have been withdrawn from the State
     Tnarury and pl&Otd at the disposal 0r the Gorernor or
     the State of Texas for payment In aocordanct with yed-
     era1 rtatutte,   where they oan not be u8td for the
     purpoee for whloh originally     turned;orer    to the Corernor
     of the State    the United State8 ha%.:a reversionary
     lntereet   In the unexpended fund, and the balanoe re-
     maining appears proper ror returning to the United
     States with a ettttmtnt 8howing by total8 for item8
     the grand total expended. The balanoe returned would
     be for covering into the Ttaaury of the United State6
     a8 a aptolal tund unoer an appropriate       titlt.,~ suoh ae
     v8p0r    Volunteers,  Spanish War, State Strvloe - Ttxt8.*
     Any claima thereafter    presented would be for developing
     by the State authorities,     and, Ii approved by the
     Governor, forwarded to this orriot      for the rtatement
     or a settlement payable under the sptolal         fund.*      ,
        I
.




    .       .




                Hon. Geo. H. Sheppard, January 24, 1939, Page 4


                          The Aots Or COn@t88  treating thi8 tun4, ot which the
                turnor #4 968.i5 18 the btltnot, did not proride that 8uOh tund
                mlght be intested In bondsjof the Unlttrrlty oi Texarror any other
                8tcuritiee 80 that the lntertrrttherefrom light be paid to
                Indigent ridowe and orphane oi 8panl8h-Amerloan War Vtterane.
                The naturt,'ofthe Inreetmtnt provided by the Aot of the Texas
                Legislature and the creation or a Commirslon to make ruch lnvest-
                ment, rea8onably &LIsureP,ror all praotloal purpo8t8, the 8artty
                or the OOl'pU8. But, In legal oonttmglatlon, the right to Invest
                these fUX¶e 18 tantamountto the right to di8po86 Or them, and
                this the LegI8lature.:orTtur oould not ao without en enabling
                act of Congrt88, Indicating the oompltte rtllngulrhment and
                waiver bp the United 8tatts ot any tlalm or revtr8lonary Interest
                lnthi8 fund.
                          Ye l.a o tuntwtrt or the lauaable purpose8 rought to
                be &ooomplished by the Aot In question, and both the Legislature
                0r Text8 aa   the comanatr, Department or Texas Unlttd'Spanleh
                Yar Vottrans rhould be oommended for their efforts to this end,
/--             but these tOn8id6ratiOn8 do not &lter the plain provi%ion% Of the
                Acts of Congtrrs which ortated thlrr fund and which lrmetgovern Its
                ultimate diipOIla1.
                          We are acoordin y, under law   required to adrioe you
                that Eouee Bill Ho. 363   h. 341, &As Regular Session, 44th
                Legl8lature of Texas, it lntrrtotln to tranartriron the Gtneral
                .RertnutrUnd to the Cammi8elon ortated by 8ald Aot, for Inve8tmtnt
                P'=P-e8, 8aId 8~m ot $4,968.15.
                                                             Tours.rery   truly        l




                                                     LTTOR NEY-            o r TExA8




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