## mm Amroxznm~ GENERAL OFTEXAS

February 10, 1958

HonorableRobert S. Calvert OpinionNo. WW-364 Comptrollerof PublloAccounts Austin, Texas Re: The validity of the claim of A. Q. Elder inthe amount of $152.71 and the authority of the Comptrollerto Issue a warrant In the payment DearMr. Calvert: of same.

Recentlyyou requestedan opinion of this office as to whether your department Is authorized to Issue a warrant in payment of a olalm of Dr. A. Q. Elder a8 rovlded for by S.B. No. 115,Acts 55th Leg., R.S., 1957, Ch. 11 96, page 1429. The following facts are revealedby the file submittedwith your opinion request and by the records of the General Land Office.

The N/2 of Sohool Section 2 in Red River County, located and surveyedby virtue of CertificateNo. 1570, issued to the T.C. Ry. Co., was awarded to C. L. McWllliamsMaroh 7, 1900,upon a plication filed in the Cteneral Land Office September 28, 1

899, to purchase the said N/2 of Section 2 as an actual settlorunder the classificationdry agricultureand at the appraisementof $2.00per acre. Thie salewas authorizedby virtue of Title LXXVII, Ch. 12-A, Revised Statutes of Texas, 1895.

On July 3, 1901, C. L. McWilliams and wife conveyed the N/2 of Section 2 to S. C. McWilllams by deed filed in the Land OfficeApril 11, 1902.

On November 4, 1902, S. 0.McWilliams,assignee, made the requiredproof of ocaupancyof the N/2 of Section 2 which proof was filed in the Land Office November 7, 1902.

On July 12, 1902, 3. 0. MoWilllams and wife conveyed the N/4 of Section 2 to W. A. Mauldin by deed filed in the Land Office September 17, 1903 and upon the filing of such_Yi

.

Honorable Robert S. Calvert,Page 2 (w-364)

deed the N/4 of Section 2 was aegregated on the records of the Land Office and placed on a separateaccount In the name of W. A. Mauldln.

On January 28, 1903, S. G.McWilliamspaid the interest due on the S/2 of the N/2 of Section 2 and continued to do so .through1907.

On November 7, 1908, Miss A. McWilliamspaid the interestdue on the land in question and continued to pay Interest thereon through 1910.

On December 9, 1911,W. C. Norrispaid Interest thereon. On February 11, 1913,A. G. Elder paid interest due on this land.

On December 1.6,1916, A. 0. Elder paid the intereet due on this land.

On February 14, 1919,A. G. Elder paid the interest due on this land.

On January 3, 1920,A. G. Elder paid the interest due on this land.

On December 15, 1920,A. G. Elder paid the Interest due on this land.

On January 3, 1922, Dr.A. G. Elder paid the interest due on this land.

From December 24, 1924, through 1935 interestdue was paid by the followingparties: Judge 0.W. Barcus, Austin Dodd, Jim Jones and Harry R. Jones.

On January 6, 1943, the saleby the State of the S/2 of the N/2 of Section 2 was forkYe,eited by the Land Commlsaioner for non-payment of interest.'

On April 3, 1943, the Commissionerof the General Land Office receivedkn inquiry from Dr. A. G. Elder concerning the redemption of the S/2 of the N/2, Section 2, T.C. Ry. Co. Survey in Red River County.

The Commissioner of the Qeneral Land Office replied to the aforementioned letter stating in substancethat the purchase rights to the land in questionhad been forfeited on January 6, 1943, for non-payment of interest installments.-’ -

Honorable Robert S. Calvert, Page 3 (m-364)

This letter further stated that under the provisiona of Article 5326, V.C.S., forfeited school land accountsmay be relnstatedby the purchasers at any time within five years after forfeitureby payment of all past due Interestaccompaniedby a written request for reinstatement.

On April 10, 1943, In the amount of $152.71was Office from Dr. A. Q. Elder.payment of delinquent interest receivedby the Qeneral Land

On April 13, 1943, General Land Office from Dr. which affidavit reads as follows: affidavitwas received in the A. G. Elder of Deport, Texas,

"TO: BASCOM GILES, COMMISSIONER OF THE GENERAL LAND OFFICE,AUSTIN, TEXAS STATE OF TEXAS County of Lamar8 Beforeme, the undersignedauthority, on this day personallyappeared

who upon being duly sworn states on oath: That'he is the owner or legal representative of A. G. Elder, Deport,Texas, the owner of the followingdescribed land in Red River County,Texas: S/2 of N/2 2, Cert. 1570, Grantee-T.C.Ry. Co. 160 acres That the above land has been forfeited for nonpayment of interestand affianthereby tenders all delinquent interest and requests that this tract be reinstated in acoordance with the provisions ofArticle 5326 of the , Revised Civil Statutes of 1925. /s/ A. G. Elder

Affiant Deport,Texas

Address Sworn to and subscribedbeforeme this 12th day of April A.D. 1943. - /s/ Joe Grant Notary Public in and for the County of Lamar, State of Texas."HonorableRobert S. Calvert, page 4 (Ww-364)

On June 1, 1943, the following letterwas received in the General Land Officewritten by Dr. A. C. Elder: "Han,Bascom Cilea, Commissioner Of The Qeneral Land Office Austin, Texas. Dear Mr. Glles:-- This is to acknowledgereceipt of copy of your letter to Mr. Harry R Jones of Houston, in regard to reinstatementof the account covering the S-172 of N-1/2, section2, certificate 1570, T.C. Ry. Co. survey in Red River County. And will say in this connection,that I was appointed Administrator of The Pat B Stokey, estate at the death of Pat B Stockley who was my Uncle, In the final settlement of the estate some of the heirs wera Indebted to Me and the Probate Courtgave IM..aLieiion this land for the indebtednessof these heirs, and I was only protectingMy Interest in applying for this reinstatement. With kindest regards, I am. Sincerely.

/s/ A. 0. Elder" On April 13,, 1943,pursuant to saidpayment of dellnquent interest,affidavit of ownershipand re uest for reinstatement,the account covering said S/2 of N 2, 7 Section 2, was reinstated on the records of the Qeneral Land Office.

Payment of Interestdue November 1, 1943,and for , subsequentyears through November 1, 1955,was paid by Mr. D. 0. Lackey of Chicota and Athens, Texas.

On November 3, 1956, full payment of all remaining prinaipal and Interestwas made by D. 0. Lackey ofAthens, Texas, and Patent Non.385, Volume 26B was issued November 20, 1956, to S. 0. McWllliams,assignee'.

Senate Bill No. 115 provides in part that the following sum ofmoney is directed to be paid out of the sum appropriated and set aside by H.B. No. 133, Acts 55th Leg., R.S., for the payment of Itemized claims "topay Arthur 0. Elder,Honorable Robert S. Calvert,page 

### 5 (a-364)

Deport,Texas, for refund on delinquent Interest on certain lands in Red Rlver.County,

. . . $152.71."

Although Senate Bill 

### 115directspayment to A. 0. Elder of the sum of $152.71 the constitutionalityof said bill is put in questionby the facts as above outlined.

Article 

### 3, Section 44 of the Constitutionof Texas provides In part that the Legislature shallnot "grant,by appropriationor otherwise,any amdunt ofmoney out of the Treasury of the State, to any individual,on a alaim, real or pretended,when the same shallnot have been provided for by preexisting lan;

. . .' Likewise,Article 

### 3, Section 

### 51 of the Texas Constltution provides in part:

"Sec. 

### 51. The Legislature shallhave no power to make any grant or authorize themaking of any grant of publiamoney6 to any Individual, association of individuals,municipal or other corporationswhatsoever;

. . ." Claim under pre-existing lawhas been held to Include a common law right as well as a statutoryright. Bank v. Sheppard, 123 Tex. 272, 

### 71 S.W.2d 242; Austin Nationa 123 S.W.2d 953 (Tex.Civ.App.,err. dlsm.). 1 Watkins v. State,

However, we are unable to find either a pre-existing statutory law under whloh this claimarose or a pre-existing common law right against the State of Texas residing in Dr. Elder. Dr. Elder paid the interest due on the purchase priae of the land in question for the years 1913, 1916, 1919, 1920, 1921 and 1922. Purchase rights to the S/2, N/2 of Section 2, T.C. Ry. Co. Survey in Red River Countywere forfeited bythe Commissionerof the GeneralLand Office on January 

### 6, 1943, as provided for inArticle 

### 5326,V.C.S., for non-payment of interestdue on the purchase price of same.

On April 10, 1943, the Land Office received from Dr. Elder $152.71 for past due interestand penalties. On April 13, 1943,Dr. Elder filed an affidavit of ownership of this property in the General Land Office. These acts of Dr. Elder were done voluntarily,without duress, fraud, or lmposition with full legal notice that the right to reinstate is restricted to "thepurchaser from the State or his vendees or their heirs or legal representatives."Honorable Robert S. Calvert,page 6 (~~-364)

If.18 also apparent that 

### Dr.A, Q. Elder proceeded with the reinstatementin order to protect some claimed Interest in this land. The reinstatementpayment tenderedby Dr. Elder presumably accomplishedthis result. It kept the land involQed open to the assertion that any partymight make against it r&mr than blot out by forfeiture and subsequent sale any inchoate rightswhichmight have theretoforeacaured to Dr. Elder and attached to this land.

In any event the reaord is devoid of any legalpredicate for payment of ,thisclaim. Under the facts as set out above. we believe no sommcm law riaht aanbe said to arise agalnh the State. State v. PerlsEeln,79 S.W.2d 

### 143 (Tex.Clv. App.) 1934; and see Fort Worth Cavalry Club v. Sheppa$l,S;;5 Tex. 339, 

### 83 S.W.2d 660; State v. Steak Co., 236 S W (Tex.Civ.App.,err< ref., 1951) 32 T J 

### 48, 29 T.J. p. 715, Mistake, B 4. ' .p. 

### 727, Payments, 3

Therefore,we are of the opinion that the approprlatlon of $152.71 to pay Dr. A. C. Elder provided for by S.B. 115, Acts 55th Leg., R.S. 1957, ah. 496, violates Sections 44 and 51 of Article III, Constitutionof Texas. We adviseyou that you are not authorized to issue a warrant in payment of this claim. SUNMARY The Comptroller Is not au$horized to issue a warrant In payment of the claim of Dr. A. 0. Elder as provided for by Senate Bill No. 

### 115,Acts 55th Leg., R.S., 1957, Ch. 496, page 1429. To do so would be a vlolation of the restrictions imposedby Sections 44 and 

### 51,Article 

### 3 of the Constitution of Texas. Yours very 

### truly, WILL WILSON Attorney General of Texas 

# BY
Milton Richardson Assistant APPROVED: OPINION COIYMITTER Qeo. P. Blackburn, Chairman Morgan Nesbitt Wayland Rivers John H. ldinton RRVIRWRDFORTRRATTORNRY GENERALBY W. V. Cteppert