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May 30, 1863, with this note of entry: "This amount is transferred by order of the comptroller." As far as known, there was no other authority for the transfer, and for this reason some members of the legislature contend that the money should not be refunded to the university, and the pending bill in the legislature, while allowing $25,500 of the $40,000, disallows any interest, which, as the claim happens to be an old one, amounts to $74,800. The reason assigned for reducing the principal is that only $25,500 is actually shown to have been used by the State; but as the whole amount, $40,000, was transferred to the State fund, it is very properly claimed that the State is responsible to the university to the full amount, no matter what use the State made of the money or any part of it, as the transfer was the act of the comptroller, whose acts are constructively the acts of the State. The law as to the act of an agent exceeding his authority not binding the principal does not apply, for the comptroller is something more than a mere agent. He is part and parcel of the State governmental entity, a bonded officer of the government, whose acts and bond bind him for the State's protection and its faithful guardianship of such interests, especially fiduciary trusts, as the State must protect for the public benefit. His acts in the range of his department are as binding as the acts of the governor or the legislature. He can not exceed his authority within the pale of his official duties without morally as well as legally binding the State to protect the interests confided to its care, particularly such interests as the university fund, for which the State is trustee. How, then, can the State claim that under the act of its own officer it is not responsible to the university for the whole amount, $40,000? As for not allowing interest on the entire sum on the ground that there happened to be no interest expressed in the ex parte transaction when the State of its own motion took the money without the consent of any representative for the university, such a position is a mere subterfuge for not doing justice to the university. Legislators taking such a position may argue ever so plausibly about there being no law or precedent for the State to allow interest on open accounts or ordinary claims against the State, but they can show none for refusing interest on borrowed trust funds, as in this case. Besides, interest, which is the recognized earnest or legal sanction and penalty for the use of money, is naturally implied unless it is expressly stipulated that none is to be allowed.

It may be added that State sovereignty as to nonpayment of interest should not be pleaded by a great State in bar of justice to a State institution, and possibly would not have been but for the enormity of the interest compared with the principal, on account of the long period of its accumulation. Still it remains, as expressed by the regents, that the legislature has assumed to discharge an obligation to the university of several hundred thousand dollars by "a loan of $125,000;" and this, as they might have added, with a treasury overflowing with funds independent of the $1,000,000 indemnity money. The regents, in further alluding to the claims in their appeal to the governor and legislature, stated:

The facts, as presented in statements of the comptroller, are plain and indisputable. University lands were sold during a certain period, by authority of the legislature, for Confederate money. For these lands there was received in this money $114,804, which was placed to the credit of the university fund. Of this amount $40,000 was transferred by the comptroller to the general revenue, and used, doubtless, in defraying the ordinary expenses of the State government; $74,804 was turned over to the Confederate States depository, to be funded under the laws of the Confederate States' government in bonds for the benefit of the university. None of this money ($114,804) paid for the university lands by authority of the State legislature has been restored to the university fund. The only question is whether the State is under obligation to

return it. The regents are of the opinion expressed by the compiler of Paschal's Digest: "Such payments (Confederate money for university lands) may operate as discharge to the debtors, but it would seem to leave a just claim on the State in favor of the education (university) fund."

It may not be out of place to state that in recognizing this claim of the university, which can not be enforced in the courts, the legislature will but follow in the steps of the General Government in allowing to Texas an indemnity fund which the State had no power to enforce or ability to collect. What Congress has just done the State legislature can certainly do, especially as in doing this the legislature will not be paying money to an outsider, but will simply be repaying to one department money borrowed from that department to pay expenses of another department, or refunding securities received by order of one department in trust for another department, which securities have since become worthless. It may be proper to say here that this claim for money paid in Confederate notes for university lands has not been filed sooner because the facts were not until recently sufficiently known to justify a formal presentation of the matter.

In a letter to Governor Ross, General Maxey urged that the "university would never have greater need of the funds due it from the State or the State be in better condition to settle." He knew of "no principle save force that would enable a State, acting as trustee, withholding these funds."

DISAPPOINTMENT AND REVELATION.

Governor Ross having suggested that the indemnity money be placed for distribution from the general revenue, the right of the legislature to grant appropriations from that source for certain university purposes a right which had been clearly demonstrated in arguments by Governor Roberts, Judge Gould, and General Maxey-was very properly invoked, in case the indemnity went to general revenue account instead of being distributed by direct appropriation of the money. The governor's suggestion however prevailed, and the university, as has been shown, got but $40,000. The legislature however was gracious enough to "loan the university $125,000" of the funds, but mainly for the benefit of the medical department at Galveston. The other State institutions all fared much better from the indemnity funds than did the university.

Before the university finally got into operation for the admission of students, Governor Ireland, Regent Hadra, State Senator Pfeuffer, and other prominent gentlemen opposed its opening as premature, some of them rather favoring the plan of "district colleges as feeders," already referred to, for preparing and furnishing students ready for it, till the resources of the university justified its opening on a more elaborate scale, commensurate with the scope of such institutions in other States. The regents and other friends of the university, however, including Ex-Governor Roberts, who while in the executive chair had insisted on making a beginning and trusting to the chances of public favor for building up the university,

were not at all impressed with the idea of there being any advantage in further delay, particularly as the legislature, in addition to appropriations to the colored normal school, and other diversions of the university fund, persisted in largely applying the university money to the Agricultural and Mechanical College, so that there was little hope of any great accumulations of university resources with which to put the parent institution or main establishment at Austin into operation. So the regents decided to make a beginning. At their first meeting held at Austin November 16, 1881, State Comptroller Brown had reported that there would be in the treasury January 1, 1883, belonging to the university only $37,024 in cash and $134,472 in State bonds, substituted for United States bonds used by the State. This was certainly a very weak exhibit for inaugurating a "first-class university," as contemplated by the constitution, especially as the bonds were those which had been declared to be of doubtful validity, and might be ultimately repudiated. But fortunately at this juncture there was a most opportune revelation as to university finances, which encouraged its friends, and for the time being seemed to check any opposition on the part of Governor Ireland, during whose administration the institution was finally opened in the fall of 1883, by temporary use of rooms in the State capitol, pending completion of the main university buildings. This revelation was like opening a mine of hidden resources, disclosing some $87,000, which a ruling of Comptroller Brown had locked in the treasury as part of the permanent university fund, but by counter ruling of his successor, Comptroller Swain, was transferred to the available fund of the university, and thus made subject to use for its immediate necessities. And so it happened, that what was presumably a conscientious ruling by Comptroller Brown, as he was supposed to be friendly to the university, had indirectly perhaps been of great service to the institution, as but for his action, had the money been credited to the available university fund, it might all have been appropriated by the legislature to the Agricultural and Mechanical College at Bryan, and partly even to the colored normal school at Hempstead, or expended by the State in some sort of legislatively "justified diversion of funds held in trust for one purpose but changed by legislative enactment to another," so as to leave nothing as a basis for the counter ruling of Brown's successor. Further than this, Comptroller Brown had persistently refused to consider the normal school as in any sense a branch of the university, as had been claimed for it by the legislature from the fact of its being attached to the Agricultural and Mechanical College branch, and would not audit the accounts to be paid out for it from specific appropriations of the university fund on the ground that such grants were unconstitutional. The Swain ruling, however, was the great fortunate desideratum for the university, as without it the money would have

remained out of control of the university regents, and for this reason the revelation of it was not only a great surprise but a source of great rejoicing to the friends of the institution. Governor Ireland seemingly yielded his opposition to the immediate opening of the university and subsequently recommended that $22,496 which had been given to the colored normal, the Prairie View school, be restored to the university fund. This was done, with the exception of interest, which the State never allows unless specially so provided for by law, and not always then, as has been shown in the history of the university. The results, either way of the comptrollers' rulings, show the great importance of conscientious consideration and well-guarded action by State officials. Comptroller Swain was the author of a proposition while in the State senate in 1882 to appropriate 3,000,000 acres of land to endow the university, which would have been but a fair allowance, considered either as a matter of restitution of original grants to the university or proper provision for its support as an important State institution.

ACTION OF THE TWENTY-SIXTH LEGISLATURE.

The whole history of legislation affecting the University of Texas, as has been seen, presents a checkered career of great expectations and deep-down disappointments in the hearts of the friends of the institution. It got but a modicum when it was so reasonably and fondly hoped that the "old indebtedness" of several hundred thousand dollars due it by the State would be allowed out of the million dollars indemnity money refunded to Texas by the General Government for frontier defense for which the State had used university funds. As also shown, its original endowment was reduced by the constitution of 1876 to the extent of millions of dollars in the value of lands which under the grant would long ago have accrued to the university; and great opposition was encountered in the legislature to a proposition to allow $75,000 for each of the two years 1899 and 1900 for needed university buildings.

Opposition to the $75,000 appropriations was based mainly on constitutional objections and the assumption that funds in the treasury did not warrant the appropriations, though there were several million dollars in the State's vaults when the legislature assembled, and there are still considerable surplus funds, over $1,000,000, in the public coffers. And this chronic objection to university appropriations that the funds are always needed for other purposes suggests very forcibly the propriety of the State establishing a special university tax, so that the institution can always rely upon funds of its own, instead of wrangling with other contending interests for legislative

succor.

The objection raised being that the constitution prohibits appropriations from the general revenue for university buildings, the regents applied for the money from that fund, from which, it was contended, it could be constitutionally granted for maintenance of the university, as had been done by a previous legislature, thus leaving existing university funds for buildings; but certain members argued that this was simply dodging the constitution, and thus indirectly illegal. As usual, too, the old anti-university cry was revived that it was "a rich man's and not a poor man's school." Representative Morrow calculated that the money would meet the usual per capita for 20,000 poor children in the common schools. Representative Neff, a graduate of the university, aptly replied to this that if a common-school education was the extent to which members were willing for the State to go, he was a better friend to the poor school urchin than they were, as he wanted the State to maintain the university so that the poor boy could have the same fine advantages as the rich man's son-the benefits of a university education. Mr. Palmer, another university student, after detailing his hard struggles to get to the university, practically illustrated that it was emphatically a poor man's school, as but for it he could never have acquired a university education. Mr. Kennedy figured it out that the legislature already had in view appropriations for other institutions and proposed enterprises more important than the university that would exhaust all present and prospective funds of the State for the next two years, and for that reason, without feeling inimical to the institution, he opposed the appropriations. On the other hand, Mr. McAnally cited from the comptroller's report that there was $1,600,000 of general revenue in the treasury, and contended that there would be an ample surplus left for the university appropriations. Governor Sayers, he said, wanted the university to have the appropriation. There were seven university graduates members of the house, Messrs. Neff, Palmer, Maxwell, McKamy, Caldwell, Collins, and Goodlett, all of whom naturally worked for the university appropriations. Representative Wooten made a most eloquent and, it was hoped, convincing argument to show not only the constitutionality but propriety and necessity of the proposition, but after continued discussion for several sittings of the house it was defeated by 22 majority. Amendment to make the amount $40,000 each year was lost by 5 majority, and finally an amendment by Representative Maxwell was adopted, allowing $35,000 each year. This was effected by the close vote of 54 to 52. Subsequently the matter was reconsidered, but the house refused to change the appropriation, thus leaving the controversy to a free conference committee. The medical department at Galveston was allowed $35,500 for each of the two years. Those who spoke in the university's behalf, or earnestly

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