April 17, 1947

Hon. L. A. Woods, State Superintendent
Department of Education
Austin, Texas         Opinion No. V-113
                      Re:   Whether certain unpaid
                            salarles of employees
                            of the Department of
                            Education can be the .
                            subject of a claims
                            bill in the 50th Legls-
Dear Sir:                   leture.
          You request an opinion by this Department
upon the above subject matter as follows:
          "Can unpaid selarlei of employees
     of this department be made the.subject
     of a claims bill to be presented to the
     50th Legislature?"
          In reply to our request therefor you have
furnished us the following additional information
with respect to these particular employees. .
          "Seventeen employees are Involved
     for salaries for)the month of.January,
     1947, and fifteen employees are lnvolv-
     ed for the period'February 1 through
     February 11, 1947.
          "I am attaching a schedule glvlng
     itemized lnfotiatlon on these employees,
     their salaries and titles (which indl-
     cates their duties). These employees ere
     extra to those regular employees author-
     ized under the General Appropriation Act. .
          "Tke School Lunch Dlvislon was estab-
     lished as a result of Governor 3tevenson's
     designating this Department to administer
     the National School Lunch Program in June,
     1946. UEder the program Texas received
Hon. L. A. Woods - Page 2, V-113


     over $3,500,000.00 to be used In zubsl-
     dlzlng school lunch programs In the
     schools of this State,but none of these
     funds can be used to pay administrative
     costs .
           "On April 1, 1946, Governor Steven-
     son charged this Department with the
     duty of Inspecting schoO1 plans and
     plants for architectural and englneer-
     lng safety. The School Plant Division
     waz established to perform this func-
     tlon.
          "In both of the above cases 8 de-
     ficiency appropriation was granted to
     finance the costs until August 31, 1946.
     On September 1, 1946, the costs of these
     programs tierepaid from contingent funds
     granted In the General Appropriation Act
     to the 'Main Division' of this Department.
     On January 1, 1947, these contingent funds
     were exhausted to the extent  that the .sal-
     arles of these employees could not be paid.
     We coul.dnot seek a ~deflclency appropria-
     tlon because a small balance waz In this
     appropr%atlon.
          "AZ soon as possible after the Flf-
     tleth Leglslature convened, an emergency
     appropriation waz requested. This Bill,
     S. B. 44, wss signed and made a law on
     February 12, 1947. Since this bill could
     not be made retroactive and since no other
     funds were on hand to pay these salarles, we
     have requested the subject opinion as to the
     procedure for paylng the salaries of these
     employees who have rendered bona fld6~services
     to the State."
          At the threshhold of the discussion we are
met with the question whether or not the persons In-
volved are in legal contemplation "employees" of your
department. In other words, whether or not you were
authorized under the law of thls State, to engage such
persons for the work to which they were assigned. It
is necessary chat this question be resolved in the af-
flrmntl.vehefore the matter of the right to compenza-
     ,   I




             Hon. L.   A.   Woods - Page 3, V-113


             satlon is even considered. If such persons have not
             been employed lti'pursuanceof law, they have no claim
             upon the State for compensation whatsoever.
                       There Is no express statute giving the
             State Superintendent or the Head of the Department of
             Education authority to administer the $3,500,000.00
             of the National School Lunch Program. Neither is
             there such express authority for the assumption by
             the department of the duty to Inspect the school plans
             and plants for architectural and engineering safety.
             If such authorlty in either case exists, it must be
             found elsewhere.
                       We think the authority Is found elsewhere
             as we shall attempt to show.
                            Section 1 of Article VU   of the Constitution
             declares:
                       ."A general diffusion of knowledge
                  being essential to the preservation of
                  the liberties end rights of the people,
                  It shall be the duty of the legislature
                  of the State to establish and make sult-
                  able provlslons for the support and maln-
                  tenance of an efficient system of public
                  free 'schools."
                       In obedience to this constitutional mandate,
             the Legislature created the office of State Superinten-
             dent of Public Instruction. Article 2655 of the Revis-
             ed Civil Statutes 1s~as follows:
                       "There shall be elected at each
                  general election, a State Superlnten-
                  dent of Public Instruction, who shall
                  hold his office for a term of two years.
                  The Superintendent shall take the offl-
                  clal oath and shall perform such duties
                  az may be prescribed by law."
                            The succeeding article (2656)   declares:
                       "The State Superintendent shall be
                  charged with the administration of the
                  school laws and a general nuperintendency
                  of the business relating to the public
                  schools of the State, * * *.'
:.
c5;   Hon.   L.   A.   Woods - Page l1,V-113


                There are many other specific requirements
      for the exercise of his general power of supervising
      the public schools of the State.

               'You advise us that Governor Stevenson had
      designated your department to administer the National
      School Lunch Program, and likewise had charged your
      department with ti:he
                          duty of Inspecting school plans
      and plants for architectural and engineering safety.

                Section 1 of Article IV of the Constltu-
      tion declares that the Governor "shall be the Chief
      Executive Officer of the State." Section 10 of the
      same article reposes In the Governor the mandato
                                                      q
      duty to "cauze the laws to be faithfully executed
      and moreover, to conduct, "In person,'or In such An-
      ner as shall be prescribed by law, all Intercourse
      and business of the State * * * with the United States."

                It cannot be said that the admlnistratlon of
      the school-lunch programs and the inspection of school
      plans and plants for architectural and engineering safe-
      ty are not within the statutory powers of the Superln-
      tendent of Public Instruction. Nor can lt be denied
      that the $3,500,000.00 aid supplied by the United States
      waz directly conducfve'.to the accomplishment of the
      cherished policy of our founding fathers as Indicated
      In the Constltutlon hereinabove quoted.
                We assume that the contribution of the United
      States to the purpose n,smedhas been received and has
      been expended and Is being expended In a way satlzfac-
      tory to the United States, and that the public schools
      have received and are receiving the exclusive beneflts
      thereof. This Is a matter Into which we are not call-
      ed upon to Inquire. It Is a fait accompli.
                We aszume further that you have employed only
      such persons and in such numbers as In your officfal
      discretion were necessary - lndlspensable - to accomplish
      the purposes for which they were employed.
                Upon these basic grounds and what we conceive
      to be sound legal reasons, we are of the opinion the
      persons Involved were legally employed by you In the
      just exercise of your office, as Supervising Head of
      the Public School system'of the State.
Hon. L. A. Woods - Psge 5, V-113


          Next; we are concerned with the question of
whether or not there was in existence at the time you
engaged these employees a lawsthat would authorize
the appropriation of money from the State Treasury to
pay their compensation.
          Section 44 of Article III of the Constitution
prohibits the Legislature from appropriating any money
out of the State Treasury without a pre-existing law
authorizing the claim therefor. This requirement for
"pre-existing law" is mandatory and Is without excep-
tion. There must have been such a law at the time the
employees were chosen by you. We think ~therewaz such
pre-existing law ample In scope to authorize an appro-
priation.
            The source of the "pre-existing law" Is not
limited to the Constitution and statutes, but on the
other hand includes the common-law a8 contradlztin-
gulshed from the written law. Moreover, the term Is
not limited to the expressed law but such pre-existing
law may and does exist where It Is a necessary Fmpli-
cation by constitution or statute. It 1s an clemen-
tnry rule of statutory construction that'whotever Is
necessarily Implied therein Is as much a part of the
instrument as though it had been expressly stated.
The real meaning of the law is the Intention of It3
q s kerz, and when that Intention Is discovered, whether
by expression or by lmpllcatlon, It is the law In ltz
true sense.
           We have already shown that the Constitution
and statute clothe you with authority to engage the
necessary - Indispensable - employees In performance
of your official duties az State Superintendent of
Public Instruction. While such pre-existing law does
not fix the number of such employees, nor the compen-
sation to be paid to them, It does create the author-
ity for the employment of the necessary number and at
the reasonable or necessary compensaion Incident there-
to.   It 13 this class of pre-existing law we are here
denling with.
          It cannot be soundly argued that subsequent
oppropriatlons in pursuance of such long standing pre-
existing authority would be retrospective in the con-
stitutional senze.forbiddlng such laws. In truth, all
appropriation act8 are in their nature retrospective
Hon. L. A. Woods - Page 6, V-113


because they are based solely upon the existence of a
"pre-exis~tlnglaw". They are all, however, prospec-
tive in their nature in the constitutional sense in
that the actual taking of the money out of the Trees-
ury follows, and does not precede the appropriation.
Our holding herein announced is consonant with sound
legal reasoning and moreover is clearly within all
constitutional limitations.
          Finally, our construction of the Constitu-
tion and statutes is in keeping with the construction
thereof in Senate Bill No. 44 of the present Session
as mentioned in your letter. It makes specific ap-
proprlation for the precise purposes involved In your
inquiry. If the~reis no pre-existing law for the em-
ployment, the Governor's deficiency warrant was im-
providently allowed and paid, the appropriation in
Senate Bill 44 is void, and any further appropriation
In the general appropriation bill will be unauthorlz-
ed.
          While contemporaneous construction of anoth-
er department of the government is not conclusive, it
is yet highly persuasive and enttitled to great weight
in the judicial determination. See Great Southern
Life Insurance Co. vs. the City of Austin, 243 S.W.
778; Walker vs. Meyers, 266 S.W. 499; Collingsworth
County vs. Allred, 40 S.W. (2d) 13; Jones vs. Williams
45 S.W. (2d) 130; Gulf C. & S.F. Railway Co. v. City
of Dallas, 16 S.W. (2d) 292; Galveston Causeway Con-
struction Co. v. Galveston H. & S.A..Railway Co., 284
Fed. 137, cert. den., (U.S.) 67 Law Ed. 1212.
          Your having discharged your official duty
and exercised your official discretion in determin-
ing the number of employees necessary and the compen-
sation to be pald to them, accomplishes the constitu-
tional requirement prescribed as a condition to the
appropriation of compensation from the Treasury of
the State. We are not to be understood as holding
that the Legislature in making such appropriation is
bound by your official action as to the necessity for
employees, the number thereof, or the amount of com-
pensation to be paid. If the Legislature in its dis-
cretion should determine either of such matters other
than you have determined them, its determination would
be conclusive, for there is no other way known to the
law to take money out of the Treasury of the State,
than by legislative appropriation.
Hon. L.   A.   Woods - Page 7, V-113


          If, for any reason, an employee of your de-
partment has performed his duties and has not been
paid, and there is no available fund from which he
may now be paid, there is no reason why such claim
may not be embraced in the uswl Miscellaneous Claims
Appropriation Bill. There is no constitutional limita-
tion upon the power of the Legislature to make an 8p
propriation from the State Treasury in payment of 8
valid claim against the State in any particular form
or at any particular time. It may do ~30at any time,
with possible special exceptions not pertinent here.
          This is not a case of an appropriation made
in CoMeCtion with the authority to incur a ll8bllity
which would operate to foreclose for all time the
question of a further appropriation as In the instances
of the purchase of materials, construction of buildings,
and the like. In such cases the very act of the Lees-
leture creating a pre-existing law for State liability
contains the limitation of the power to contract be-
yond the sum there appropriated. It is at once a power
and a limitation upon the extent of the power.
          It is Important to notice the two types of
pre-existing law. Section 44 of Article III of the
Constitution Is the basis for the distinction be-
tween these types. The section first forbids the Legis-
lature to provide for extra compensation to any of-
ficer, agent, servant, or public contractors, after
public service shall have been performed or contracts
entered into for the performance of the same, and sec-
ond forbids the employment of anyone in the n8me of
the state, unless authorized by pre-existing 18W. The
distinguishing feature is this, in cases of contract
as for purchases or ConStrUCtion, the pre-eXi8tfng 18W
and the necessary appropriation are embodied in one
bill, whereas in the c8se of an employee the authority
to employ on behalf of the State is us%?ll$ found iti
the constitution or statute long prior to the specific
appropriation for compensation. The first Class of
ceses is illustrated by Nichols vs. State, 32 3-W.
452 ("The claim of an appellant to the extent of about
$10,000 that grew out of the addition81 contract for
the extra service was in excess of the amount provided
by law for the construction of the building; hence
there was an o'bsence of a pre-exlstiriglaw for the Con-
struction of the buildi~ig;hence there wes an absence
of .spre-existing law upon which to hose this claim"),
     Hon. L. A. Woods - Page 8, V-113


     and State vs. Haldeman, 163 S.W. 1020 ("It is true, in
     the Nichols ca3e supra, the act expressly provided that
     the amount to be expended for the building therein pro-
     vided for should not exceed the sum of $40,000; but we
     hold that, when the Legislature appropriates 8 specific
     8mOUnt for 8 public building, this is equiva,lentto
     limiting the amount to be expended on such building to
     the amount named fn the appropriation bill").
               This class of cases is further illustrated
     by Fort Worth Cavalry Club vs..Sheppard, 83 S.W. (2d)
     660, in which case the Supreme Court applied the prin-
     ciples announced in the Nichols end Heldeman cases to
     a situation where the Adjutant General of the State
     entered into 8 lease contract with the Fort Worth
     Cavslry Club for certain grounds for the use of the
     Texas National Guard, saying, "When we come to con-
     strue such statutes (the powers of the Adjutant Gen-
     eral) together with the above quoted appropriation 8Ct,
     it is reasonably clear to us that the Adjutant General
     had the implied power, within the reasonable limita-
     tions of s'uchappropriation, to make contracts for the
     period and purposes covered thereby, end no further.
     This holding renders the contract illegal."
               The second ~133s   of "pre-existing law*, and
     by far the'lerger Cl83S,   consists of general leglsla-
     tive,authority giving the officer, department, insti-
     tution, or other agency of the State the power to em-
     plo:~necessary assistants or employees.
                Your request presents 8 situation where t'he
     Head of a department has engaged necessary employees
     essential to carry on his statutory duties, Snd the
     employees have performed the contemplated service and
     have received ,therefor,no compensation. The que3tion
     iS ClOSely  8n8lOgOU3 to th8t determined by the Supreme
     Court in Lightfoot v. Lane, 140 S.W. 89, .where it‘is
     Said:
               "This provision of the Constitution
          (ArticleVIII, 8 6),,'No money Shall be
          drawn from the treasury but in pursuance
.!        of specific appropriations made by lsw,'
          does not apply to relator's warrant, which
          was not a payment; nor did the issuing of
Hon. L. A. Woods - Page 9, v-i13
                                                             .

     the warrant draw money out of the treas-
           State v. Wilson, 71 Tex. 300, 9 3.
     wfi55 0',The warrant could not be paid
     until appropriation should be msde, if
     not theretofore made. Relator seeks only
     a writ of mandamus, lcommandlng and re-
     quiring respondent to draw and'dellver to
     relator 8 warrant upon the Treasurer of
     the State of Texas'for the sum of one
     hundred sixty-six and 66/100 dollars in
     payment of the saiary of relator as a-
     foresald,~and tiiotreiator 'have judgment
     for ail costs and'for general reilef~.'
          "The acts of the Governor charged to
     have-been unlawfully done in vetoing and
     mutilating the appropriation bill, If true,
     are wholly without relevancy to .the~rlght of
     relator to the warrant. The Secretary of
     State, who 1s by law required to cause the
     bill to be prlnted correctly, Is not a party
     to this proceeding, neither Is the Treasurer,
     who must cash the warrant; hence no judgment
     can be entered agalnst either ,of them. AW
     declslon of those matters would be uncalled
     for; therefore, this court ~111 not intimate
     an opinion as to either., '
          "It Is -thereforeordered that the clerk
     of this court issue the writ, of mandamus as
     prayed for by relator, directed to W. P. La&;
     Comptroller of Public Accounts of the State
     of Tsas, commandlng him to Issue and deliver
     to relator,,Jewel.P. Llghtfdot, a warrant up-
     on the Treasurer of the State of Texas for the
     sum of $166.66,~for salary due relator as At-
     torney General of the S.tateof Texa'sfor the
     month of September, 1911, and %hat the respon-
     dent, W. P. Lane, pay all costs of thls pro-
     ceeding. * * *'
             It is true,  in the case of the Attorney Gen-
erai, the amount of the salary was ffxed by the Con-
stitution l&elf', but thls can make no difference for.
such fiXltjg   by the Constltutlctnoperated only as Q
iimitat;lonupon the power of the Leglaleture,,'-not a
prohlbl.tio?r  egslnst ail compensatilon. In other words,
without such ilmltation the Legislature 1s free to ap-
proprlate what 1,t;   deems to be reasonabic compensation
for the ser~i~cesperformed.          '
,   ,


        Hon. L. A. Woods - Page 10, V-113


                  If the Legislature should fall to make any
        approprlatlon for any officer or employee, of course,
        no compensation could be paid until such appropriation
        has been made. Suppose, to illustrate, the Leglsla-
        ture should fa.ilto make en approprlatlon to the Execu-
        tive Department for asslstants, stenographers or em-
        ployees whatsoever, could it be thought for a moment
        that the Governor could not employ the indispensable
        number of secretaries and stenographers to carry on
        the work of the State? The business of the State must
        go on. There is no express authority given to the
        Governor to employ secretaries, stenographers, and the
        like. Such authority Is undoubtedly implied in the
        Constltutlon and statutes creating the office and de-
        fining the dutles of the Governor. It cannot be sup-
        posed that the framers of the Constltutlon or any
        Legislature since that time ever contemplated or in-
        tended that the Governor function In the discharge of
        his duties without necessary personnel. The power to
        employ personnel Is a common sense, Inevitable con-
        clusion by the necessary implications of the Consti-
        tution and statutes. Suppose again, a fire should gut
        the Senate Chamber In the Capitol while the Legisla-
        ture is ln session. There is no constitutional or
        statutory authority in express form for the State to
        be made liable for an assembly place until the chamber
        could be restored. It la hardly thinkable that the
        State could not pay for the rental of an appropriate
        assembly chamber to house the Senate.
                    We answer your question In the affirmative.
                                 SUMMAKY

                    The salaries of employees of the Depart-
             q ent of Education employed to administer the
             National School Lunch Program,and the School
             Plant Division of the Department, for lnspect-
             lng school plans and 'plants for architectural
             and engineering safety, who have not been paid
             their salaries, may be paid by an approprlation
             to be contained in the Miscellaneous Claims
             Bill lf allowed and included therein by the
             Legislature.
                                   Yours very truly




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