The opinion
December 4, 1961
Honorable Robert S. Calvert
Comptroller of Public Accounts
Caritol Station
Austin 11, Texas
Opinion No. ww-1207
Re: Validity of the provision
contained in S. B. No. 1,
Acts 57th Legislature,lst
Called Session, 1961, page
IV-72, Section 24, sub-
section h, which provides
for a revolving fund to be
used for payment of salaries
of certain employees
directly by State agencies
of higher education.
Dear Mr. Calvert:
You have requested our opinion concerning the
validity of Sub-section h of Section 24, Article IV, S. B.
No. 1, Acts 57th Legislature, 1st Called Session, 1961, page
IV-72. This provision is a part of the current general
appropriation bill and reads as follows:
"h. Revolving Fund. Each institution
affected by this Section, at its option, is
hereby authorized to maintain a revolving fund
to facilitate the payment of nominal expenses
and to pay bills within cash discount periods.
The institutions may use the revolving fund
for regular monthly payrolls as well as for
weekly and special payrolls. Disbursements
from the revolving funds are to be reimbljrsed
from respective appropriations made herein,
the State Comptroller being hereby authorized
to make such refmbursements on claims filed
with him by the institutions under his regularly
prescribed procedures except that one voucher
and one warrant may cover any number of claims
for this purpose. These reimbursement claims
shall meet the same requirements as other claims
against State appropriations, and each institution
Honorable Robert S. Calvert, page 2 (WW-1207)
shall prepare such a reimbursement claim as at the
close of business on the last day of each month and
as many times during each month as may be expedient
in order to make unnecessary the maintaining of an
unreasonably large revolving fund."
Your questions concerning this provision are as
follows:
"1. Is this an invalid provision of
the appropriation bill by reason of it being
general legislation?
“2. In the event your answer to the
above question is in the negative: does
the above provision of the appropriation bill
attempt to modify or amend a general statute?"
These questions, though seemingly of singular
import, necessitate a general consideration of the constitu-
tional restrictions on the legislative process as applicable
to a general appropriation bill and the rules which govern
the courts in their application.
Generally speaking, a constitution is the expression
of the sovereign will of the people and it is the basis upon
which the function of the legislature, the executive and the
judiciary are founded. Section 1 of Article III of the
Constitution of Texas provides that:
"The Legislative power of this State
shall be vested in a Senate and House of
Representatives, which together shall be
styled 'The Legislature of the State of Texas.'"
With these words, the people of this State, acting
in their sovereign capacity, endowed the Legislature with all
;yy;sy ower which they, the people, inherently possessed.
xcept in the particulars where it is restrained
by the Constitution of the United States, the legislative
department may exercise all legislative power which is not
forbidden expressly or by implication by the provisions of
the Constitution of the State of Texas." Brown v. City of
Galveston, 97 Tex. 1, 75 S.W. 488, 492 (1903). t
Halff, 75 Tex. 132, 12 S.W. 610 (1889); Conley v?%&$ers
of the Republic, 106 Tex. 80, 156 S.W. 197 (1913); Mumme v.
Marrs, 120 Tex. 383, 40 S.W.2d 31 (1931).
It is not contended, nor do we think that it can
Honorable Robert S. Calvert, page 3 (WW-1207)
be, that the Legislature lacked the power to legislate upon
the subject embraced by the rider in question. The question
is whether the inclusion of this rider in the general appro-
priation bill is prohibited by some provision of our Consti-
tution.
Section 35 of Article III of the Constitution of
Texas provides:
"NO bill, (except general appropriation bills,
which may embrace the various subjects and accounts
for and on account of which moneys are appropriated)
shall contain more than one subject, which shall be
expressed in its title. But if any subject shall
be embraced in an act, which shall not be expressed
in the title, such act shall be void only as to so
much thereof as shall not be so expressed."
What is the purpose of this limitation upon the
legislative power? Our Supreme Court has answered this
question in Stone v. Brown, 54 Tex. 330 (1881) at page 342
in the following language:
"The principal object of this constitutional
provision is to advise the legislature and the
people of the nature of each particular bill,
so as to prevent the insertion of obnoxious
clauses, which otherwise might be engrafted
thereupon and become the law; and also to prevent
combinations, whereby would be concentrated
the votes of the friends of different measures,
none of which could pass singiy; thus causing
each bill to stand on its own merits. Cooley's
Const. Lim. (4th ed.), 173; Giddings ;. z;nte-8
Antonio, 47 Tex., 555; Albrecht v. Th S ,
Tex. Court of Appeals, 216."
Although Section 35 of Article III has been held
to be mandatory and not merely directory, our courts have
declared that it is to be given a liberal construction with
the object of making the" . . .whole constitutional where
the part objected to as infringing this provision of the
Constitution could be considered as appropriately connected
with or subsidiary to the main object of the act as ex ressed
in the title . . an Antonio, 47 Tex. 5E8,
556 (1877). 7 Tex. 208 (1851); Tadlock
v. Eccles, 20 vey v. Galveston County,
45 Tex. 291 (1876).
Honorable Robert S. Calvert, page 4 (WW-1207)
Just what provisions may a general appropriation
bill contain in addition to bare appropriation of funds
without contravening Section 35 of Article III of our
Constitution? Our Supreme Court has held that a rider in
a general appropriation bill which specifies the fees that
district clerks are to charge for furnishing unofficial
copies of court records and prescribing a duty to furnish such
copies is clearly not subsidiary or germane to the subject
of appropriation but constitutes a separate subject and con-
sequently contravenes Section 35 of Article III. Moore v.
She ard 144 Tex. 537, 192 S.W.2d 559 (1946). Special
direc ions as to the expenditure of an item in a general
--5+
appropriation bill were held not to be prohibited by Section
35 of Article III in Conley v. Daughters of the Renublic,
106 Tex. 80, 156 S.W. 191 (191X), where the court said at
page 202:
”
. . .the exception releives that bill
from the limitation and permits the same
treatment of each subject of the appropriation
bill that would apply if it were embraced in
a separate bill.
"It cannot be that a separate and independ-
ent law would be necessary to direct and control
the expenditure of every item of appropriation."
While other phases of the application of Section
35 of Article III have been written upon by our Texas Courts
extensively, only these two Texas decisions have touched
directly upon the questions raised by your request, con-
sequently we feel that the decisions of the courts of other
states will be enlightening.
In considering a similar constitutional provision
and its application and effect upon a general appropriation
bill the Supreme Court of New Mexico in State v. Marron, 17
N.M. 304, 128 P. 485 (1912) at page 488 had this to say:
tt
.It was evidently also designed to
preveni general legislation in such a bill
in no way related to making provision for the
expenses of the government.
II
. . .To sustain the contention that the
general appropriation bill should contain nothing,
save the bare appropriations of money, and that
provisions for the expenditure of the money, or its
Honorable Robert S. Calvert, page 5 (ww-1207)
accounting, could not be
^ included
. . . therein, or that. , _
the method ancimeans OS raising tne money appropriatea
could not likewise be included, would lead to results
so incongrous that it must be presumed that the
framers of the Constitution had no such intent in
the adoption of the restrictions referred to."
Continuing from the same source at page 489:
I,
. . .What vice or evil can there be in
making provisions in such an act, which are
incidental to the main fact of appropriation?
The limitation was imposed upon the main act.
of the appropriation, and not the matters of
detail connected with such appropriation. . .
the courts all uniformly hold that any matter
germane to the subject expressed in the title
of a bill and naturally related to it is valid.
When an appropriation is made, why should not
there be included with such appropriation
matter germane thereto and directly connected
with it, such as provisions for the expenditure
and accounting for the money, and the means
and methods of raising it, whether it be by
taxation or by some other method?"
In Whittier v. Safford, 28 N.M. 531, 214 P. 759
(1923) the New Mexico Supreme Court again reasoned at page
760:
”
. . .The details of expending the money so
appropriated, which are necessarily connected
with and related to the matter of providing the
expenses of the government, are so related,
connected with, and incidental to the subject
of appropriations that they do not violate the
Constitution if incornorated in such aeneral
Also to the same effect is Peck v. Velarde, 39
N.M. 179, 43 P.2d 377 (1935).
Honorable Robert S. Calvert, page 6 (WW-1207)
Cases from other jurisdictions reaching the same
conclusion as the New Mexico Supreme Court include: Sellers
v. Frohmiller, 42 Ariz. 239, 24 P.2d 666 (1933); Crane v.
Frohmiller, 45 Ariz. 490, 45 P. 2d 955 (1935); State v. Angle,
54 Ariz. 13, 91 P.2d 705 (1939). Caldwell v. Board of Regents,
54 Ariz. 404, 96 P.2d 401 (1939 ; Trotter v. Frank P. Gates
85co., 162 Miss. 569, 139 So. 8z3 11932); Davidson v. Ford,
115~Mont. 165, 141 P.2d 373 (1943).
If the rider in question does no more than provide
for a manner of expenditure and method of accounting of the
appropriations to the affected institutions, then under the
foregoing authorities, the rider would clearly not be general
legislation but would be incidental and germane to the subject
of appropriation.
The disbursement of money through and by the use
of a revolving fund is a widely used and well recognized
accounting procedure. Its main advantage is that its use
facilitates the payment of expenses which recurr regularly
at short intervals and expenses which in good business
practice demand immediate payment. Mikesell & Hay, Gov-
ernmental Accountin
State Accounting Pr~,~~~~e~dip:~~:~iA~~~~ery'
. Ser~~~~"~p~~~.
In our opinion, this rider is not general legislation.
When we consider the appropriation of funds to the institutions
of higher education as one subject of the general appropriation
bill, this rider, by providing a well recognized accounting
procedure for the disbursement and allocation of the funds
for the purposes specified, is clearly germane and incidental
to this subject and is further covered by that portion of
the caption of the bill which reads as follows:
11
. . .authorizing and prescribing conditions,
limitations, rules and procedures for allocating
and expending the appropriated funds; . . .'
Consequently, your first question is answered in
the negative.
Even were we in doubt in this respect we would
reach the same conclusion on this question. The well
settled rules of construction dictate that the courts approach
with reluctance the decision that an act of the Legislature
is unconstitutional. When asked to strike down an act of
a coordinate branch of the government the courts will resolve
every reasonable doubt in favor of the constitutionality of
the act and only in those instances where some prohibition
. .
Honorable Robert S. Calvert, page 7 (WW-1207)
of the Constitution is clearly contravened will the act be
so construed. The courts were not intended to sit as the
ever anxious-critics of legislative expression or the censor
of their acts. Fletcher v. Peck, 6 Cranch 87, 3 L. Ed. 162
Ogden v. Saunders, 12 Wheat. 213, 6 L. Ed. 606
Maud v. Terrell, 109 Tex. 97, 200 S.W. 375
Harris County v, Stewart, 91 Tex. 133, 41 S.W. 650
In response to your second question: It is our
opinion that the rider in question does not attempt to amend
or modify an existing general statute.
Indeed, the rider itself negates any intention
to amend or modify an existing general statute by stating:
.These reimbursement claims shall meet
the sahe'requirements as other claims against
state appropriations . . .n
Further, as we have observed above, the rider merely
authorizes the various institutions affected to use, at
their option, a recognized procedure of accounting for the
allocation and disbursement of appropriated funds". . .
to facilitate the payment of nominal expenses and to pay
bills within cash discount periods . . .for regular monthly
payrolls as well as for weekly and special payrolls . . ."
There is no general statute specifying that these insti-
tutions use a different accounting procedure in allocating
and disbursing the funds affected, and in absence of such
a general statute there is no attempt at amendment or
modification.
SUMMARY
Sub-section h of Section 24 of Senate
Bill No. 1, Acts 57th Legislature, First
Called Session, 1961, page 245 of the
Supplement to Senate Journal is not invalid
by reason of its being general legislation
contained in a general appropriation bill;
neither is this provision an attempt to
modify or amend an existing general statute.
Very truly yours,
WILL WILSON
By W. 0. Shu
Assistant
. .
Honorable Robert S. Calvert, page 8
WOS:kh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Leslie King
Dick Wells
Dudley McCalla
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee