The booka of ths Library are Cata property, ror thr usa of the pub110 in ecoordanoe nlth the statutes and regulations or the Commission adopted in pursuanoe of statutory authority, (SW Rev. Civ. stat. Art. 5435).

aooks once aoqJiirsd by the State remain in legal oom- templatlon the Ctats's property until In 8011 legal wy the Stats has disposed of them. The Commission has no authority to dlsposs of suoh books except in some manner provided bg law. Sin06 there is no statute authorizing the Commission to aell the books or ths Library, and sines thara has brsc no rula or ramlotion prescribed :; ;s;ur;o;:,"; ;;; ;:?A;;%:7 power to make rules and regulations,

itle to the books has never passrd to Xlss Fraston. 'The situation presented is not the same as the legal oonospt of thr passing of title from the owner to ona who converts property, upon payI= tha value therefor, suoh notional paselng of the title bsiug based upon the Implied consent of the owner, erldanord by his eleotlon to demand dams&es instaad~ of return of the property, This analogy dcss not hold where the :Xata Is the wrier, ror the mason the Stats has no ganeral flgents for disposing or Its propar- tp -- there must be statutory authority to effeotuate suoh ohangs 0r title.

Sactlon 6 or Artlolr 8, Constitution of Tsxae provides that "no nonep shsll be drawn fro:1 the T4-sasury but In ,r,orauancr or speolflo aDpsopriations made by law”. ::o nave osrsrullp exam- ined th4 appropriations msdr to the Texas Library and Historioal Co,mmission and find that the 49th Lat;islaturs did not apprcprlata any aoney from whloh XSS Fraston may be refundad the sum of Y,.SS.

'?a foll~inrg proviso Vas mElda a part 0: suoh npgro:jriation: Ycrvided that, all ?.onops ~?(?id into the 3tata ?reasury b.7 the state ilbrsirp frcn r-funds for lost or badly dalaeed bOOi.3, Tin.3 all moneys for ure-payment for nost:%e, drayege, or transportation 3ro hereby nFcroprlated for the Stuta iibr2rg for b3o!cs, postasa, axyzsv, and frslp.ht for the ::tnta Library.'

.‘.;r . bmols Ii. Henshaw, ikgm 3

Thus it la aeon that said sum or money 80 paid by Miss Yraston oan only be used to pay for books, postage, srpreae and fre l.Tht. As statsd above, the stats fit no tine lo.& Its title to the book8 ln question and henoa oan not purchase Ita own property.

?!e thersfors hold that !rlas Frseon aennot be refunded

said amount in the nmnnar attemptrd.

It Is the general rula In this State that mnry rolun-

tarlly paid Into tha State Trsesury OannOt be refunded even though the Le&3letura at:smpts to make an appropriation thsreror. How- zve.r, the Courts of this Stete and thle department haa held that the Le~lslature may rotund money wrongfilly paid, when same was paid althor through (1) traud, .(2) under nlatake of rant, or or durs ss . There was nc fraud practiced or duress used. C3)e;;rreason the mansy was paid under a !mtual mistake or raot, that Is that the books were psrasnently lost, and under tie mistaken belief not merely temporarily mlsplaoed.

It Is therefore our o?lnlon that tha LeglslatLWa nay law- tully make an apprnprlation to Else Praeton In the amount of $4.88. Tour second question, therarors, beoolnsa moot.

Youre vary truly ATl’OHNm GENZRAL OF TEXAS VI, V. Gspprrt Aselstant