Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Honorable George H. Sheppard Comptroller of Public Accounts Austin, Texas
Dear Sir:
Opinion No. 0-192-A Re: Reconsideration of Opinion No. 0-192, wondering the validity of House Bill No. 363, Chapter 367, Acts, Regular Session, 4th Legislature of Texas, providing for the creation of a commission for the investment of funds appropriated by Congress for expenses by, competition with the Volunteer Army of the United States in the War with Spain.
Your letter of January 20, 1942, requests recons- sideration of our Opinion No. 0-192, in view of recent opi- nions upon the subject by the office of the Comptroller General of the United States. The opinions adverted to, copies of which are attached to your letter, are an opinion of date December 5, 1942, by the Comptroller General of the United States to Senator Hittie W. Garaway, covering funds of a similar nature on deposit in Arkansas, and an opinion by the Aging Comptroller General of the United States to Honorable Lyndon B. Johnson, bearing date March 17, 1939, revisiting and limiting an opinion of June 22, 1931, by the Comptroller General of the United States to Honorable J.B. Dardan, Commander, Department of Texas, United Spanish War Veterans, which letter opinion was considered by us in writ- ing the opinion under review.
The origin and status of the $4,968.15, the in- vestment of which is controlled by the legislative enactment above cited, has been fully discussed in our opinion No. 0-192 and in a letter opinion of date April 13, 1931, by this Department to Honorable R.H. Goodby, Member of the House of Representatives, Austin, Texas, and we do not deem a further statement necessary.
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Honorable George H. Sheppard, Page 2
The Aet of Congress of July 8, 1898, 30 etat. 730, 731, authorized payment to be made from Federal funds to the Governors of any state or Territory, or his duly authorized agents, of the reasonable costs, charges and expenses incurred by him in aiding the United States to raise the Volunteer Army for service in the War with Spain, by subsisting, clothing, supplying, equipping, paying, and transporting men of the state or Territory who were afterwards accepted into the Volunteer Army of the United States, such olalms to be settled upon proper vouchers to be filed and passed upon by the proper aesounting officers of the Treasury.
We cannot agree with the contention of the Dea pertinent of Texas that Congress appropriated the original 848,000.00 to Texas "on the presumption that the state had paid the men" and that consequenrly" the United states did not, and does not, expect return of any remaining balance under Chapter 445, 55th Congress, March 3, 1899." On the contrary, we peraist in our opinion heretofore expressed that the state of Texas has me"right, title interest or alaim in and to said balance of 84,968.15 , but same is held by the state authorities, in trust, for payment, upon propar proof, to such offieers and men of the Volunteer Army 50 the War with Spain as be same entitled to "interim pay" for the period and at the rates fixed in the above eited Aet of Congress. Presumptively, all olains of the state for reimbursement of actual expenditures made for equipping, subsisting and transporting its quota of the Volunteer Army, have long aince been presented and allowed, upon proper vouchers, because, by Act of Congress of.warch 7, 1908, 30 Stat, No. 42, the period of limitation for such olains for reimbursement under these Aets of Congress was extended from 1906 to January 1, 1910. If this 84,968.15 is to be deemed the funds and property of the state of Texas on the reimbursement theory, as contended by the Department of Texas, then it would have properly been covered into the Treasury of the State under the Aet of the Legislature abolishing special funds, and the Aet under consideration here would clearly be an unauthorized appropriation of these funds.
As long as this balance remains with the state of Texas, through its proper offieials, it is the property and funds of the officers and men of the Volunteer Army who beoame entitled to such portions thereof as represented their
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Honorable George H. Sheppard, Page 3
proper "interim pay" for services. No period of limitation appears to be fixed in the Acta of Congress creating thes fund, for the presentment, allowancs and payment of such claims to these offieers and man. Until such olains shall be presented for payment, these funds, or the belance thereof, are impressed with a trust, and the state is under the duty to guard and proteet such funds. Conceivably, no olains will ever be presented to the state by those entitled to the remaining portion of this fund, and in this contingency we maintain our original position that the United states of America has a reveralonary interest therein, and Congress oan, at any time it deems the matter should be closed, call upon the various states for an accounting of any unexpended balance and require them to pay same into the Treasury of the United states. The fact that no such Act of Congress has been enacted or proposed or that the Comptroller General of the United states has not made any formal olains or demands upon the various states for the return of this unexpended balance, but on the contrary, by various letter opinions, has indicated no interest therein or thereto, does not control this situation or ber a future Congress from calling upon the various states for an account of their trusteeship.
Hence, after careful and sympathetic consideration of your request for our review of opinion No. 0-192, we are regretfully constrained to advise you and interested parties, that said opinion correctly disposes of this question and should be adhered to.
Tyusting the foregoing fully answers your inquiry, we are
Yours very truly ATTORNEY GENERAL OF TEXAS
By PAN:LM APPROVED APRIL 19, 1941 s/ Grover Sellers FRIST ASSISTANT ATTORNEY GENERAL