*1 Honorable Claude A. Williams
Chairman and Executive Direotor
Texas Unemployment Ccunpewatlon Commission
Aus tin, Texas
Dear Sir: Opinion No. O-5524
IiS?: Whether Senate Bill No. 266 applies to rental space leased by the Texae Unemployment Cm- penaatlon Comniseion.
Thla will acknowledge reoelpt of~your letter of August l.3, 1943, wherein you have requeeted the opinion of this depar+anent upon the above at&d matter. So that this opinion will reflect all of the facts you have auhaitted to UB, we quote the body of your letter in full as followai
"Your DepartMmt recently Issued Opinion Bo. O-927 relative to the effect of Senate BillHo. 266, Regular Seseion of the 48th Legislature, upon the,payment of cur- rent rentals under existing leases. We presume, in view of the legislative policy ae expressed in several recent appropriation bills, that Senate Bill IVo. 266 (to appear aa Article 666b in Vernon’8 Annotated Civil Statutes) doe6 not apply to the fund6 used by this Commiseion for the payment of rentals, but in order to clarify the mat- ter, we are requesting your opinion.
gJnaer the atiinistratlve authority vested in this Commission by Article 5221b-9 (V.A.C.S.) the Commission has taken leases ou a number of offices located at various points in the State. Payment for theee leases is made out of the Unemployment Compensation Administration Fund created in the State Treaeury by Article 5221b-11 (V.A.C.S.). We direct your attention to tie fact that the Texas Unam- ployment C~peneation Conmission is not operated on funds derived frcm State taxation, but is operated on a grant from the Social Security Board under Title III of the Social Security Aot, as mended, and the Unemployment Compensation Administration Fund conslsta wholly of funds received from the Federal Government. These funds are not granted to the
Honorable Claude A. Williame, Page 2 (O-5524)
State as ouch, but rather are granted to +&la Ccan- mission aa a Ccmmlsaion for administrative use by that body in keeping with such rules and regulations as may be prescribed by the Social Security Board. "Article 5221b-11 (V.A.C.S.) provides, among other things, 'all moneyw in this fund which are received from the Federal Government or any Agency thereof shall be expended eolely for the purposes and in the amounts found necessary by the Social Security Board for the proper and efficient adminis- tration of this Act.' The terms of Title III under which this money is granted provide that the adminis- trative fund shall not be granted by the Social Sec- urlty Board unless it is found that all moneys received from the Board are expended solely for the purposes and in the amounta found necessary by the Board for the proper and efficient administration of such State law. In this connection it is pointed out that all of these contracts must be made in accordance with standards promulgated by the Board and are also examined and approved by an auditor of the Board.
"We therefore request your opinion as to whether or not Senate BillHo. 266, Regular Session of the 48th Leg- islature, is applicable to payment of rental by this Ccm- mission out of funds received from the Federal Oovernment." In our opinion No. O-5427, we advised the State Canptroller of Public Accounts that:
"Any new lease or rental contract entered into after the passage of Senate Bill 266 (Acts 1943, 48th Leg., effective May 7, 1943) muet be executed In the manner prescribed by Sections 1 and 2 of the Act. The Legisla- ture having provided a mode for the securing of rental space, the agencies and deparixaenta affected are restrict- ed to that mode and must conform to these requirements." (Emphasis added)
If the Texas Unemployment Compensation Commission ia one of the affected agencies or departmenta therein referred to, it would follow that the provisions of Senate Bill Ho. 266 apply to rental space needed by it. If not, the Commission may continue to follow the procedure it has followed in the past in securing rental space.
. .
Honorable Claude A. Williams, Page 3 (o-5524)
Any intelligent inveetigation of the powers and authority of the Texas Uncmgloyment Compensation Commission must include an examination of certalu federal etatutea a8 well ae etate etatutse. In this particular phaee of etats activity-unemplopent inauranoe-federal sn8 state legis- lation are so interwoven aa to oonrrtltute a joint legielative undertaking by the FederalCon@'eee and the Texae Legielature.
Your inquiry involves adminletrative details, (I, matter in the joint legislative endeavor in which State and Federal legislation Is most particularly Intermingled and in which the cooperation between the two governments is most pronounced. The extent of this cooperation will be- ccaue apparent from the statutes and acts which will be hereinafter quoted and referred to.
The federal legislation on the subject will be found under Title 42, Subchapter III, United States Code, under the title "Grants to States for Unemployment Cmpensatiou Administration."
Section 501, under this title and subchapter, providea for a continuing appropriation of certain funds for the purpose of asslatIng the states in the administration of their unemployment compensation laws.
Section 502 contains the following provisions:
"(a) The (Federal Social Security) Board shall from tfme to time certify to the Secretary of the Treasury for payment to each State which has an unemployment corn- penaatlon law approved by the Board under sections 1610- 1611 of Title 26, such amounta ae the Board determines to be necessary for the proper and efficient adminiEtZ%- tion of such law durm the fiscal year for which such payment is to be made. (Emphasis added).
Section 503 of this title contains the following provisions:
"(a) The Board shall make no certification for payment to any State unleee it finds that the law of such State2 approved by the Board under sections 16io- 1611 of Title Includes provision for --
"(8) Effeotlve July 1, 1941, the expenditure of allmoneye received pursuant to section 5M of this title solely for the purposes and in the amounts found necessary by the Board for the prOper and efficient ad- ministration of such State law." (Emphasis added) *4 Honorable Claude A. Williams, Page 4 (O-5524)
The remaining provisions in this section provide that in the event the State agenog charged with the administration of the State Un- employment Compensation Law fails to carry out the requirements of the Sooial Seourity Board, the Board shall make no oertification for payment to the reoaloitrant State.
The aDulloable arovlelone of our State law are found in the Unemployment C&peneation-Act, Article 5221b, Vernon's Annotated 01~11 Statutes.
Section 9 of Article 52211, contains the following provisione: Duties and Powers of Ccemnisaion: It ahall be “(a) of the Ccvmuission ,to administer this Act; and the duty it shall have power and authority to adopt, amend9 or rescind such rulea aDd regulations, to employ such per- sane, make such expenditures, require such reports, make such investigations, and take such other action as it deems neoeasary or suitable to that end. D 0 .
"(I) State-Federal Cooperationr In the adminfstra- tian_of
make euoh reports, in such form and containing such in- formation ae the Social Security Board may from time to time find necessary to aBeure the correotness and verifi- - witi the regula- cation of such reports; and shall ccm Seotion llp Article 522113 (Section l3 in original Act) provides the following:
"(a) Special Fuods There is hereby erea,ted in the State Treasury a apeoial fund to be known aa the Unemploy- ment Compensation Administration Fund. All moneys which are deposited or paid into this fund are hereby appropriated and made available to the Cammission and ahall be continu- ously available to the Ccmmissfon for expenditure in *5 Honorable Claude A. Williams, Page 5 (O-5524)
accordance with the provisions of this Act, and shall not lapse at any time or be transferred to any other All moneys in this fund whloh are received from ma. the Federal Government or any sgenoy thereof ehall be expended ~0ls.l~ for the purpoees and in the munts found neoessary by the Sooial Security Board for the proper and efficient administration of this Act. This fund shall consist of all moneys appropriated by this State; all moneys received from the United States of America, or any agency thereof, including the Social Security Board; . . . .", etc. (Emphasis added) The State legislation, above quoted and referred to, reveals an unmistakable intent on the part of the Legislature to require the Texas Unemployment Compensation Ccmmission to cooperate to the fullest possible extant with the Federal Social Security Board in matters concerned with the administration of the Texas Unemployment Compensation Act.
The reason why the Texas Legislature has required such extensive cooperation with the Federal Social Security Board becomes apparent when we realize that practically all funds used in the administration of the Un- employment Ccrmpensaticn Act are furnished by the Federal Gcvercment and that none are furnished by the State. Under the Federal enacimenta, which are quoted and referred to above, the Federal Government will continue to furnish these funds only 80 long as the Texas Commission complies with the rules and regulations of the Federal Social Security Board with regard to the expenditure of the moneys so furnished.
Under Section 503, subsection (a), Title 42, U.S.C.A., the Social Security Board Is prohibited from making certification for payment to any State unless such State has enacted legislation which provides for the ex- penditure of funds furnished under Section 502 of that title "solely for the
In ccmpllanoe with this requirement, the Texas Legislature has provided in subsection (a) of Section 11, Article 5221b, Vernon's Annotated Civil Statutes, that: "All moneys in this (Administration) fund which are received from the Federal Government or any agency thereof ahali be expended solely for the purposes and in the amounts found necessary by the Social Security Board for the prcuer and efficient administration of this Act." ~Rnphasie added)
That these provisions of the Federal and State laws result in placing in the Federal Social Security Board in Wsehington, absolute control over the securing of rental space by the Texas Unemployment Compensation *6 Honorable Claude A. Wfllirnna, Page 6 (O-5524)
Commission, was illustrated in the reoent case of Starling Realty Corpora- tion v. State, 20 N.Y.S. (26) 270, 174 App. Div. affirmed 1941, 36 N.E. (26) 201, 286 N.Y. 272, re-ar ent and motion denied, 1942, 37 N.E. 26) 47, 261 A~~.DIV. 363, which was af- (2d) ~8, 286 N.Y. 696, 26 N.Y.S. F finned, 1941.
In the Starling case, the Division of Placement and Unsmployment Insurance of New York, which corresponds to our Unsmplopsnt Compensation Comieslon, had rented certafn premises fram the Starling Realty Corpora- tion, and, thereafter, the Division of Placement and Unemployment Insurance, upon a determination of the Federal Social Seourfty Board that the space was no longer needed and that therefore no further funds would be provided for rental on those premises, oancelled its rental agreement or lease. This action by the Division was made pursuant to a clause In the leasing contract that the liability of the State was contingent upon the availability of moneys to pay such rental.
The New York Court of Claims in denying the landlord's claim for rental, points out that:
"The power of the (Federal Social Security) Board to provide necessary moneys for increasing the number of necessary offices or enlarging already existing offices would seem to be clear and it woc3.d seem equally clear that it could refuse to provide moneys for such offices as it might decide unnecessary in the administration of the law." The only logical conclusion to be deduced from this holding~and the quoted provisions of the Federal and State lam is that absolute ~dlscre- tion over the amount of rental space needed by the Texas Unemployment Compen- sation Cmmission and the amount of money ,to he spent for rental has been placed under our Unemployment Ccaupensation Aat in the Federal Social Security Board in Washington.
Senate BIU. NO. 266 (Chap. 258, Acts 1943, M3tb Leg.) on the o"ther hand places almost an equal amovmt of dfseretion over the procurement of rental spaoe by all State agencies sod departments in the Texas Board of Con- trol. we quote the first two sections of Senate Bill No. 266, as folicws:
"Section I. Hereafter all departients and agencies of the State Government, when rental space is needed for carrying on the essential functions of such agencies or deparimenti of the State Government, shall submit to tie State Board of Control a request therefor, giving tJ'&e type, kind, and size of 'building meded, together with any otier necessary description, end stat%ng tie purpose for which it will be used and the need tlterefor.
Honorable Claude A. Williama, Page 7 (O-5524)
"Section 2. The State Board of Control, uuou receipt of such request, and If the money has been made available to pay the rental thereon, and If in the discretiou of the Board such mace is needed, shall forthwith advertise in a uewsuauer. which has been regularly published and cfm&&d in the city, or town, where auoh rental space is eou&t, for bids on such rental spaoe, for the uses indicated and for a period of not to exoeed two years. After euah bids have been received by the State Board of Control at its principal office in Austin, Texas, and publioly opened, the award for such rental contract will be made to the lowest and best bidder, and upon such other terms as may be agreed upon. The terms of the contract, together with the notice of the award of the State Board of Controlwillbe submitted to the Attorney General of Texas, who will oause to be pre- pared and executed in accordance with the tenus of the agreement, such oontract in quadruplicate; one of which will be kept by each party thereto, one by the State Board of Control, and one by the Attorney General of Texas. The parties to such contract will be the departient or agency of the government using the space as lessee and the party renting the spaoe 88 lessor."
Insofar as the Texas Unemployment Ccnapensation Comnlssion is concerned, the discretion which Senate Bill No. 266 plaoes inthe Board of Control would be in direct conflict with the discretion, which we have already seen, has been placed in the Bederal Social Security Board. Since practically all funds used in the administration of the Unemployment Con- pensation Act are furnished by the Federal Government and its agencies, and none is furnished by the State, the provisions of Senate Bill No. if held applicable to the Texas Unemployment Caapensation Commission, would create an unbridgeable conflict. Quite obviously, the discretion over the amount of space and the price to be paid for it oannot rest both in the Board of Control and in the Social Security Board. One or the other must have the final word.
A simple answer to this stalenuate, may be found in the second clause of Section 2 of Senate Bill No. 266, whioh provides that the Board of Control's aotion is contingent upon the availability of moneys to pay rental upon the required space. As we have seen, the only moneys available to the Texas Unemployment Ccaapensation Commlsslon for rental apace are those furnished for the payment of rental upon space approved by the Social Security Board. And it might be held that since no moneys are available, the Boar3 of Control has no jurisdiction.
Honorable Claude A. Williams, Page 8 (O-5524)
However, we prefer not to reat our opinion solely upon this tenuous technicality, but rather upon accepted legal principles which we believe point to a proper solution of the apparent conflict.
Senate Bill No, 266 ooutains no repeal of any of the provisious of the Texas Unemployment Ccenpensation Acts nor for thatnatter of my other previous leglalative enaotmente. It contains neither a specific nor a gsn- era1 repeal of prior lsgislation. In order to reach the conclusion that this Bill, in fact, repeals any portion of the Unemployment Canpensatlon Act, we would be required to rely upon a repeal by implication. As pointed out in Texas Jurisprudence, repeals by implication are not favored.
"According to numerous pronouncsments of the Texas courts, the repeal of statutes by implication is never favored or presumed, The two acts will persist unless the conflicting provisions are so antagonistic and re- pu@mnt that both cannot stand. Where there is no express repeal, the presumption is that in emoting a new law the Legislature intended the old statute to remain in operation." 39 Tex. Jur. 140, and cases cited iu tie footnotes.
Under the rules above stated, we must presume that in enacting Senate Bill No. 266 and in makiug uo express repeal of existing legisla- tion, the Legislature intended that the couflieting provisions of the Uh- employment Compensation Act remain in effect. Texas Jurisprudenoe further points out that;
“If by any reasonable construction two sets or statutory provisions can be reconciled and so oon- strued that both may s+tsnd, one willnotbe held to repeal the other. Especially where tie older law is particular and is expressed in negative terms, and the later statute is general, a construotion will be sought which harmonizes them and leaves both in con- current operation." 39 Tao Jur. 141-2, and oases cited in the footnotes.
We direct your attention also to the rule that a general act does not repeal a special or particular law. The entwtment of a general law does not ordinarily opera,te as a repeal of a particular or special law, by impli- cation, although both relate to the same sub$eot matter. On *he contrary, both statutes are permitted to stand, and the general law is applicable to all cases not embraced by the speclfio sot. In other words, the partioular act Is eonstrued as constituting an exception to the general law. This is said to be a settled rule of construction based upon tie presumption that a s~~~ffi(: s&tu,t;e eyiden~*s t&e jxrteamthm c.2 +&h IngS.slas.t;Ls"e more e?sarJ$ ctb.Rn a genera2 one, ma ~e;rCfme ahcd.a eoE,t~'~3i., jg 'Fez. @T&r. i4945c; Tc7msena y. Terrell, 118 Tern. 16 S,W. (2&) ~063; Ellis v. Batits, 26 Tex. 703; Cole v. State, 106 Tex. 472, 170 S,W. ;la36, dimfsehg errcr 1.63 S.W. 353.
.
Honorable claude A. Willimm, Page 9 (O-5524)
V. Bette, 26 Tex. 703; Cole Y. State, 106 Tex. 472, 170 S.W. 1036, dismlsalng error 163 S.W. 353.
Under them rulee of statutory oonetruation, the Texae Ummploy- ment Compensation Aot will be held oontsolling in mattere relating to the eeourlng of rentalspaoe by the Unemployment Cmupeneatlon Ccem~Ieelon, while senate BIU HO. 266 IS oontrolling in mattere regarding rental spaoe needed by other &epar+menta or agenclea, which are not controlled by special or particular statutes.
You are therefore advised, and it Is the opinion of this depart- ment, that the provisions of Senate Billlo. 266 40 not apply to the Texas Unemployment Cmpensation Ccamission.
Trusting that ve have fully answered your inquiry and that you will call upon ue if we oan be of further service, we are
Yours very truly By /a/ Peter Maniscalco Peter Manlscalco Assistant Pwff
APPROVKDAIJG 30, 1943
/e/Gerald 0. Mann
Al?lS~QEliEBALOFTEXAS
APPROVED
OPIBlIOly COMMIm
BY /sbm Chalnmn