Untitled Texas Attorney General Opinion ( 1950 )

,-
HE ATTO
OFTEXA~
Hon. Robert S. Calvert
Comptroller of Public Accounts
Austin, Texas
Opinion No. V-1125
Re: Construction of Subsection 3 of
Section 2 of the Departmental
Appropriation Bill of 1949 (B.B.
322, Acts 5ht Leg., R.S. 1949,
ch. 615, p. 1208).
Dear Sir:
Your request for an opinion reads, in part,
as follows:
nThe regular session of the Fifty-first
Legislature in the General Appropriation
Bill made the following appropriation to the
Railroad Commission for the present year of
the current biennium:
"For the Years Ending
Aug. 31, 1950 Aug. 31, 1951
Maintenance and Miscellan-
eous:
16. Contingent expenses,
sheriff and witness'
fees, court costs,
traveling expenses,
postage, books, sta-
tionery, telegraph
telephone, files, hur-
niture and fixtures,
express charges, print-
ings, blanks, pamphlets,
tariffs, rulings and
all other necessary help
and expenses, including
$500 per year for the
joint employment with
other State Commissions
for a representative in
interstate matters at
Washington sLlO8OO~OQ SX'tO~.OQ
Total Maintenance
and Miscellaneous $10,000.00 $10,000.00
--.
Hon. Robert S. Calvert - Page 2 (V-1125)
“In Section 2 of General Provisions you will
find the following language:
“‘(3) Sale of Printed Matter. Any
contingent funds herein appropriated, and
any funds appropriated for printing may
be used under the direction of any 4 epart-
ment for which any such appropriation Is
made for the publication and distribution
of any notices pamphlet sj booklets rules
regulations ani other matters of public in’
terest; provided that a charge may be made
and collected for such publications and
notices which will reasonably reimburse
funds for such actual expense, but any such
pamphlets shall be furnished to another
state department without charge. t
“b Subsection 15 of section 2 reads
as follows:
M’b. The appropriations herein pro-
vided are to be construed as the maximum sums
to be appropriated to and for the several pur-
poses named herein, and the amounts are in-
tended to cover, and shall cover the entire
cost of the respective items and the same
shall not be supplemented from any other
sources; provided however that the provis-
ions and restrictIons here 1n shall not apply
to the State Commission for the Blind; and,
except as otherwise provided, no other ex-
penditures shall be made, nor shall any oth-
er obligations be incurred by any department
of this State, provided however, that noth-
ing herein shall preven 4 any department head
from paying less than the maximumamount set
forth herein for any salaried position. Un-
less otherwise provided by law, officers and
employees traveling in the performance of
their official duties shall not accept any
sums of money from corporations, firms or per-
sons being audited, examined inspected, etc.,
and must receive their trave i ing expenses
from the amounts appropriated in this Act. The
Comptroller is hereby prohibited from paying
the salary of any person employed by the State
who violates this provision.*
P Hon. Robert s. Calvert - Page 3~ (v-1125)
nThe Railroad Commission has made a
charge and collected money as reimbursement
to the fund .for notices and publications
issued by that department and has made a
request of the State Treasurer to deposit
the moneys collected for such publication
back to the current appropriations above men-
tioned.
"The question has arisen in this de-
partment as to whether the funds collected
are a reimbursement to the appropriation or
whether it is a reimbursement to the fund
and is not covered by an appropriation for
current use. I shall, therefore, thank you
to advise this department whether the moneys
collected by the Railroad Commission for the
issuance and sale of publications by that
department can be deposited back to the cur-
rent appropriation for the use and benefits
of the Railroad Commission."
The Departmental Appropriation Bill to which
you refer contains appropriations to the several State
departments, boards, and commissions named therein for
the current biennium beginning September 1, 1949. (H.B.
322, Acts Skit Leg., R.S. 1949, ch: 615, p. 1208.)
Section 2 thereof appears under the heading "General,
Provisions" and contains numerous riders, including sub-
section 3 which you have quoted. The legislative history
of this subsection reflects that it had its origin as a
rider attached to the Departmental Appropriation Bill of
1933 (H.B. 167, Acts 43rd Leg., R.S. 1933, ch. 166, pe
5141, reading as follows%
"It is further provided that any con-
tingent funds herein appropriated, and any
funds appropriated for printing may be used
under the direction of any Department for
which any such appropriation is made for the
publication and distribution ~of any notices,
pamphlets, booklets, rules, regulations and
other matters of public interest; provided
that a charge may be made and collected for
such publications and notices, as will rea-
sonably reimburse such funds for all actual
expense in connection therewith."
Ron. Robert S. Calvert - Page 4 (V-1125)
The foregoing rider has been brought forward
without substantial change in its verbiage in all such
appropriation bills passed by the Legislature since 1933.
Item 16, supra, contains an appropriation of
$10,000 out of the General Revenue Fund in the State
Treasury to the Railroad Gommlsslon for each fiscal year
of the current bienmium for numerous purposes, including
printing and contingent expenses. Therefore the pro-
visions of the rider under consideration appi y to this
appropriation.
Your question, in substance, is whether the
money collected by the Railroad Commission from the sale
of its publications can be deposited in the State Treas-
ury to the credit of its current appropriation contained
in Item 16 for the usa and benefit of the Rallroad Com-
mission, or must be deposited to the credit of the General
Revenue Fund.
In connection with the question presented, w4
have been advised by the Railroad Commission of Texas as
follows:
NThe Railroad Commission of Texas, through
Its Rate Division, a part of the Main Office,
continuously throughout the year issues mime-
ographed notices of hearings, orders estab-
lishing rates, rules and regulations, govern-
ing then transportation of passengers and prop-
erty by railroad, and by motor carriers, as
well as by express. These mimeographed docu-
ments, generally termed circulars, are assigned
numbers, and since the beginning of the fiscal
year September 1, 1935 have been furnished on
a subscription basis a4 a charge designed to
as nearly as could be estimated, represent the
cost of preparing and mailing the same; and
the subscriptions received therefor have each
year been deposited to the contingent fund of
the Main Office of the Commission, to reim-
burse that fund for the amount expended, in ac-
cordance with the Provisions of the appropria-
ticn bill.&! quoted above herein That the amount
received from the sale of the,se circulars
should properly be credited to the contingent
fund of the Main Office of the Commission, as
replacement of that part of said contingent
fund expended therefor, has never before been
questioned.”
Hon. Robert S. Calvert - Page 5 (V-11?5)
We have also been advised by your office
that ever since September 1, 1933,' States departments
for which appropriationswere made for printing or
contingent expenses were permitted.to deposit the
money received by them from the 'sale of their publica-
tions in the State Treasury to.the credit of their re-
speative appropriations for printing or contingent ex-
penses, and to expend the sarne.~~The validity of this
long continued practice was not Questioned in your of-
flee until about the beginning of the'current fiscal
year.
The Legislature did not carefully select the
language which it employed .in the original rider at-
tached to the Departmental Appropriation Bill of 1933,
and in some respects its meaning or intent is uncer-
tain or doubtful. For example, we have been advised
by your office that it has at all times construed the
phrase "any contingent funds herein appropriated," which
appears in the first sentence 'of all.such riders, to
mean "any funds herein appropriated for contingent ex-
penses," for such phrase could not be given its literal
meaning because there was no such fund as ~!'contingent
fund" in the State Treasury. Such construction became
necessary for the purpose of giving effect to the legis-
lative intent.
The Comptroller of, Public Accounts is the ex-
ecutive officer charged by law with the superintendence
and management of the fiscal,concerns of the State, as
Its sole accounting officer, and he must keep accounts
on all moneys received by the State. Tex. Const. Art.
IV Sec. 1, Art. 4344, V.C.S.
In view of the long-established practice of
the Comptroller with reference to the disposition of the
moneys received from the several State departments, col-
lected from the sale of their publications, we conclude
that he has at all times since September 1, 1933, until
recently, construed such riders as, authority for such
practice.
The effect of such departmental,construction
is determined by well-established rules adopted by the
courts for their guidance in interpreting~statutes when
their meaning is uncertain or doubtful. Some of such
rules which are particularly.applicable here read as fol-
lows:
Hon. Robert S. Calvert - Page 6 (V-1125)
“When in the course of any controversy
a question as to the effect or operation of a
statute is presented it becomes the duty and
it is the province o f the court to construe
the statutory language. This consists in as-
certaining and determining the fair and proper
meaning of the law, and in giving it, if pos-
sible the effect and scope Intended by the
legisiature.
“A statute should be construed as under-
stood at the time of its passage. At all times
subsequent to its enactment, an act should be
given the same meaning that it had at that time,
unless its meaning has been changed by amend-
ment . w 39 Tex. Jur. 156, Statutes, Sec. 86.
nThe contemporaneous construction of an
act by those who are charged with the duty of
its enforcement--that is, executive and admin-
istrative officers and departments, as well as
by the courts and the Legislature--is worthy
of serious consideration as an aid to interpre-
tation, particularly where such construction
has been sanctioned by long acquiescence. . a .
Moreover, sound public policy requires the re-
solving of all doubts in favor of a contempo-
raneous or practical construction that has been
followed with substantial uniformity.” 39 Tex.
Jur. 234-235, Statutes, Sec. 125.
“The courts will ordinarily adopt and up-
hold a construction placed upon a statute by an
executive officer or department charged with its
administration, if the statute is ambiguous or
uncertain, and the constructio&iven it is rea-
sonable. In other words, the judiciary will ad-
here to an executive or departmental construc-
tion of an ambiguous statute unless It is clearly
erroneous or urqound, or unless It will result
In serious hardship or injustice, although it
might have been inclined to place a different con-
struction upon the act.
“The rule above stated is particularly appli-
cable to an administrative construction of long
standing, . . . where a law that has been uniform-
ly construed by those charged with its enforcement
Hon. Robert S. Calvert - Page 7 (V-1125)
has been re-enacted without a change of lan-
guage . It has been variously applied to con-
structions, opinions or rulings of the Gov-
ernor, the Attorney General, the Comptroller,
the Secretary of State, the Treesurer the
Land Commissioner, the Compensation Ci aim
Board, and the State Department of Education.”
39 Tex. Jur. 235, Statutes, Sec. 126.
‘*In connection with the construction of
statutes, there are numerous presumptions in
which a court may Indulge. . . .
“A construction placed upon a statute by
administrative officers is presumed to be cor-
rect, especially where It was contemporaneous,
or nearly so, with the statute itself. And a
legislative acquiescence in the construction
given a statute may be presumed from protracted
failure to amend or change It.” 39 Tex. Jur.
242-243, Statutes, Sec. 129.
“The Legislature is presumed to have under-
stood the meaning of language that it employed,
and to have known the construction placed upon
the same or a similar statute by the appellate
courts and by the executive or administrative
officers. And it may be presumed, in a proper
case, that the Legislature has acquiesced in the
construction of a particular act, or that if it
had not been satisfied with such construction it
would have changed the verbiage of the law so as
to show a contrary intention.” 39 Tex. Jur. 250,
Statutes, Sec. 132.
These rules have been applied by the Texas courts in num-
erous cases. See, for example, meral uae oil 0. V
you&,-Lee Oil Co% 122 Tex. 21, 52 S.W.2?56 (1933:; &
y. Stronn 128 Teg. 65 96 S.W.2d 276 (193f)v(concurring
opinion bi Chief Justiie Cureton)’ mr
United Life Ins. CQ.~ 181 S.W.26 bO7 (Tex. Clv.
error ref .)
We believe this rider was attached to the respec-
tive departmental appropriation bills to .enable any State
department to which it applied to publish and distribute to
the general public any of its notices, pamphlets, booklets,
rules. regulations, and other matters of public interest
Hon. Robert S. Calvert - Page 8 (V-1125)
without cost to the State of Texas. To accomplish that
purpose, the Legislature in the rider authorized such a
department to pay the expenses Incurred for printing and
distributing such publications out of its current appro-
priation for printing or for contingent expenses and to
make and collect a charge therefor as would reasonably
reimburse that item of appropriation which was charged
w?.th such expenses. “‘The primary meaning of the word
1 reimburse’ is to pay back; to make return or restora-
tion of an equivalent for something paid, expended or
lost; to indemnify to make wholeaU 36 Words and Phrases
(Perm Ed. 1940) 723 o Therefore, It was evidently contem-
plated by the Legislature that a department would charge
and collect no more money from the sale and distribution
of its publications than it expended for printing and
distributing them thereby leaving unimpaired the entire
amount of the par c lcular appropriation from which such
expenses were paid to be expended by the department for
the purposes designated therein. In other words, any ap-
propriation made to a department from which expenses for
printing and distributing the publications of that depart-
ment may be paid constitutes, In effect, a “revolving fund,”
as that term is commonly understood, for such purposes, ?
since the only money which can be deposited to its credit
is that money received by the department from the sale of
its publications to reimburse such fund for the money tak-
en therefrom to pay such expenses. The reimbursement pro-
vision In the rider obviated the necessity for the Legis-
lature to specifically reappropriate such money, and made
the provisions of Subsection 15(b) of Section 2 of House
Bill 322 Inapplicable thereto.
In view of the foregoing we are of the opinion
that the construction heretofore pi aced by your department
upon the original rider t%ndits respective successors ap-
pearing In each successive departmental appropriation bill
passed by the Legislature since 1933 was a fair, reasonable,
and sensible Interpretation thereof, and is in accord with
the legislative intent, Bowever, if we entertained doubt
as to the correctness of such departmental construction
the rules for constructfon of statutes cited herein wou9a
require us to confirm it, unless we could hold that such
construction was clearly erroneous or unsound, or unless
it ~~16 result in serfous hardship or injustice, which we
cannot do. Furthermore 9 the Legislature is not only pre-
sumed to have understood the meaning of the language which
it at all times has used in these riders, but is also pre-
sumed to have known of the construction placed upon It by
Hon. Robert S. Calvert - Page 9 (V-1125)
your department, and to have assented thereto; otherwise
it would have changed the verbiage thereof so as to show
a contrary Intention.
The money received by the Railroad Com-
mission from the sale of its publications
should be deposited in the State Treasury to
the credit of Item 16 of its current appro-
priation for contingent expenses, printing,
and other purposes to reimburse that appro-
priation for the money withdrawn therefrom
to pay the expense incurred in connection
with printing and distributing such publlca-
tions to the general public. Item 16, so
reimbursed, may be expended by the Commission
for the purposes designated therein. H.B.
322 Acts 51st Leg. R.S. 1949, ch. 615, p.
1208, Sec. 2, Subseds. 3 and 15(b).
APPROVED: Yours very truly,
C. K. Richards PRICE DANIEL
Trial & Appellate Attorney General
Division
Everett Hutchinson
Executive Assistant
Bruce W. Bryant
Charles D. Mathews Assistant
First Assistant
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