Your request for an opinion upon the above titled subject matter is as follows:

"This department is in receipt of a claim for the issuance of mortuary warrant under Article 6227, R.C.S., for the burial expenses of a de- ceased widow of a Confederate Veteran. The claim and proof of death was not made to the. Comptroller within 40 days from the date of the death of the pensioner. Because of the clad$m not having been made within the 40-day period this department has refused to issue warrant. The question has arisen as to wheth- er this department may waive the limitation in Article 6227 and issue warrant in payment of the mortuary claim where such claim and proof of death is made and filed with this department more than 43 days after the death of the pen- sioner.

"The opinion written by J. V. Frnka, Assistant Attorney General, addressed to Mr. C. H. Cav- ness, State Auditor, covering the claim of Mrs. S.S. Williams, a pensioner, under H.B. 701, 49th Legisiature, partially covers this point, how- ever it is argued by the claimant that this op- inion is off-set by the Case of Limestone County *2 Hon. Geo. H. Sheppard - Page 2 (V-55l.n)

vs. Robbins, 38 S+lt2)588. I shall thank you to advise me whether or not this department may.waive the limitation and issue warrant as above mentioned."

Article 6227, as amended by the 48th Legisla- ture, p. 187 (1943) contains the following:

Whenever any pensioner who has been regularly placed upon the pension rolls un- der the provisions of this law relating there- to, shall die, and proof thereof shall be made to the Comptroller within forty (40) days from the date of such death by the affidavit of the doctor who attended the pensioner during the last illness, or the undertaker who con- ducted the funeral, or made arrangements there- for, the Comptroller shall issue a mortuary warrant for an amount not exceeding One Hun- dred ($100.00) Ddllars payable out of the pen- sion fund, in favor of the heirs or legal rep-. resentatives of the deceased pensioner, or in favor of the person or persons owing the ac- counts . . . ."

It will be seen that the authority of the Comp- troller to issue a warrant is limited to those caseswhere proof of death has been made to him within forty days from the date of such death. It is familiar law that public officers have only such poder or a-Athority as shall be con- ferred upon them by law. By this test the Comptroller has no authority or right in any event to issue his warrant in the absence of such proof of death required by the statute. This is jurisdictional and is condition precedent to issu- ing any warrant. See Brand v. Corner & McRea, 78 S.N. 2d 712.

In Opinion No. 0-6500 this office advised you as to this precise point saying:

"In view of the foregoing authorities, it is the opinion of this Department that the pro- visions of Article 6227 are mandatory and that the Comptroller of ?ublic Accounts is not auth- orized to issue a warrant in payment of a mort- uary claim when the claim is not presented with- in the forty day period; . . .‘I

Hon. Geo. H. Sheppard - Page 3 (V-55l)

We adhere to the rule announced in Opinion No. 0-6500 and hold that you are without authority to issue a warrant in payment of a mortuary claim under Article 6227 unless the proper proof thereof has been filed with- in the k0 days period of the statute.

The case of Limestone County v. Robbins, 38 S.W. 26 580 mentioned by you has no bearing upon the present inquiry because in that the case the question of limita- tion as a defense was present and the Court specifically pointed out its pertinence.sayingr

*The privilege possessed by a county to set up the statutes of limitation as a defense against a just debt emanates,from the Legisla- ture, and is subject to the legislative will. The statutes of limitation bar the holder of the debt from access to the courts, but the debt is not extinguished. The removal of the bar does not impose a new debt against the county, or involve the bestowal of a gratuity on the debt holder, but simply opens the way for the enforcement of the county(s moral ob- ligation to pay the old debt." In the present case we have held that no cause of action ever existed in the situation before us. YOU may not issue the warrant because no valid claim ba existed under the present law. You are bound by thi 1'? as enacted by the Legislature and have no authority to waive any of its requirements.

SUMMARY

The Comptroller of Public Accounts is not authorized under Article 6227 of the Revised Civil Statutes as amended in 1943 to issue a warrant against the Mortuary Fund in favor of heirs where no proof as required by the Arti- cle was filed within the period of time the?e- in provided.

Yours very truly, ATTORNZY GENWAL OF T-&S By %-ip&~

Assistant