
    TERRELL v. SPARKS, State Treasurer.
    (Supreme Court of Texas.
    March 22, 1911.)
    1. States (§ 131) — Appropriation — Validity.
    Act April 20,1909 (Acts 31st Leg., 1st Called Sess., c. 21) § 1, provides that for the purpose of enforcing any and all laws of the state, and to pay the necessary expenses in bringing suits and prosecuting same, there is hereby appropriated the sum of $25,000, or so much thereof as may be necessary, to be expended under the direction of the Attorney General, by and with the approval of the Governor, to be paid upon warrants drawn by the comptroller on vouchers approved by the Attorney General. Section 2, in declaring an emergency, recites that adequate provision has not been made for the recovery of land belonging to the public schools and other lands of the state and for the enforcement of the laws of this state concerning public lands, and the pendency of a great number of suits by the Attorney General for the recovery of many thousands of acres of land, which suits will come to trial in the near future. Held, that the act was sufficiently specific in making the appropriation, and hence not vio-lative of Const, art. 8, § 6, providing that no money shall be drawn from the treasury but in pursuance of specific appropriations made by law.
    [Ed. Note. — For other cases, see States, Cent. Dig. § 129; Dec. Dig. § 131.]
    2. Attorney General (§ 2) — Assistants — Effect of Appointment — “Offices of the State.” .
    In order to constitute an -attorney employed to assist the Attorney General an officer of the state, the term of his appointment and continuance in office must 'he coterminous with the term of office of the Attorney General who appointed him, and of the Governor approving the appointment.
    [Ed. Note. — For other cases, see Attorney General, Dec. Dig. § 2.
    
    For other definitions, see Words and Phrases, vol. 7, pp. 6635-6638; vol. 8, p. 7804.]
    3. Attorney General (§ 2*) — Powers—Contracts for Assistants — “State Officer.”
    Where an Attorney General with the approval of the Governor entered into a contract with an attorney to assist him in the trial of certain cases for a stated period of time at a stated compensation payable in monthly installments, and the attorney so employed did not take an oath of office or qualify for the position, and his term was limited to less than the full term of an Assistant Attorney General, he was not a state officer, and hence his contract did not terminate with the expiration of the term of office of the Governor and Attorney General.
    [Ed. Note. — For other cases, see Attorney General, Dec. Dig. § 2.
    
    For other definitions, see Words and Phrases, vol. 7, pp. 6635-6638; vol. 8, p. 7804.]
    4. Attorney General (§ 2) — Employment of Assistant — Nature of Contract.
    A written contract, signed by an attorney at law and by the Attorney General, and approved by the Governor, recited that the Attorney General and the attorney “entered into the following contract and agreement.” The contract then provided that the attorney, in consideration of a stated amount to be paid in eight monthly installments, agreed to render professional services as an attorney under the direction of the Attorney General, in enforcing any and all the laws of the state, and in representing the state in certain designated suits then pending, and that the Attorney General, in consideration of the agreement, did “appoint and employ the said C. as special counsel to perform services” mentioned. Held, that the instrument constituted a contract between the attorney and the state.
    [Ed. Note. — For other cases, see Attorney General, Dec. Dig. § 2.]
    5. Statutes (§ 185) — Construction — Implications.
    Wherever a power is given by statute, everything necessary to make it effectual or necessary to attain the end is implied.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 264; Dec. Dig. § 185.]
    6. 'Attorney General (§ 2) — Employment of Assistant — Authority^
    Act April 20, 1909 (Acts 31st Leg., 1st Called Sess., c. 21) § 1, provides that, for the purpose of enforcing any and all laws of the state and of paying the necessary expenses in bringing suits and prosecuting same, there is appropriated $25,000, or so much thereof as may be necessary, to be expended under the direction of the Attorney General, by and with the approval of the Governor, and to be paid upon warrants drawn by the comptroller on vouchers approved by the Attorney General. Section 2, in declaring an emergency, recites that adequate provision has not been made for the recovery of land belonging to the public schools and other lands of the state and for the enforcement of the laws of the state concerning public lands, and the pendency of a great number of suits brought by the Attorney General for the recovery of many thousands of acres of land, which suits will come to trial in the near future. Held that, notwithstanding the Constitutional declaration that the Attorney General is charged with the duty of enforcing the laws of the state, the statute, in view of the declared emergency, conferred authority upon the Attorney General to employ special counsel to assist him in the litigation mentioned in the act.
    [Ed. Note. — For other cases, see Attorney General, Cent. Dig. § 2; Dec. Dig. § 2.]
    7. Mandamus (§ 172) — Scope of Inquiry.
    In mandamus by such attorney to compel the payment of a warrant for his compensation, the necessity or propriety of the employment of the attorney is not before the court; those questions being concluded by the decision of the Attorney General and the Governor.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 381-385; Dec. Dig. § 172.]
    8. States (§ 138) — Warrants.
    The voucher and warrant issued for the payment of such attorney under such contract did not require the approval of the Governor.,
    [Ed. Note. — For other cases, see States, Dec. Dig. § 138.]
    Mandamus by the people, on the relation of John L. Terrell, against Sam Sparks, State Treasurer, to compel payment of a warrant.
    Peremptory writ issued.
    V. L. Brooks and C. A. Leddy, for relator. N. A. Stedman, for respondent.
    
      
      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

At the first called session of the Thirty-First' Legislature of the state of Texas, this statute was enacted:

“Be it enacted by the Legislature of the state of Texas-:
“Section 1. For the purpose of- enforcing any and all laws of the state of Texas, and for the purpose of paying any and all necessary expenses in bringing suits or paying expenses in prosecuting same, there is hereby appropriated out of any money in the state treasury, not otherwise appropriated, the sum of $25,000.00 or so much thereof as may be necessary, to be expended under the direction of the Attorney General by and with the approval of the Governor, and to be paid upon warrants drawn by the comptroller of public accounts on vouchers approved by the Attorney General.
“Sec. 2. The fact that adequate provision has not been made for the recovery of lands belonging to the public schools and other lands of the state of Texas and for the enforcement of the laws of this state concerning public lands, the pendency of • a great number of suits brought by the Attorney General for the recovery of many thousands of acres of land embraced by the terms of this- act, which suits will come to trial in the near future, create an emergency and an imperative public necessity requiring that the constitutional rule which provides that bills shall be read on three several days be suspended and said rule is hereby suspended, and that this act take effect and be in force from and after its passage, and it is so enacted. Approved April 20, 1909.” (Laws 1909, c. 21.)

On the 27th day of December, 1910, T. M. Campbell, being then Governor of the state, and Jewel P. Lightfoot, being Attorney General of the state of Texas, the following instrument was executed by the said officers and relator, Terrell:

“The State of Texas, County of Travis.
“These presents witnesseth: That we,. Jewel P. Lightfoot, Attorney General of the state of Texas, and John L. Terrell of the county of Dallas, state of Texas, have this day entered into the following contract and agreement, witnessing:
“I. Thát I, John L. Terrell, in consideration of the sum of one thousand six hundred and sixty-six dollars and forty ($1,606.40) cents to be paid to me by the state of Texas in monthly instalments of two hundred eight dollars and thirty cents ($208.30) on the last day of each month out of an appropriation made by the Legislature of the .state of Texas under an act approved April 20, 1909, entitled ‘An act making an appropriation for the enforcing of any and all laws of the state of Texas, and fbr the purpose of paying any and all necessary expenses in bringing and prosecuting suits or paying expenses in prosecuting same, providing the manner of expending such appropriation and declaring an emergency,’ do hereby agree and obligate myself as follows:
“(a) To render my professional services as an attorney at law under the direction of the Attorney General of Texas in enforcing any and all laws of the state of Texas, beginning January 1st, 1911, and ending August 31, 1911; and
“(b) To represent the state of Texas as special counsel under the direction and control of the Attorney General of Texas in the following suits now pending in the district courts of Travis county, Texas, to wit;
No. 24873 State of Texas vs. W. D. Hart.
No. 25341 State vs. Hosea L. Gallardo et al.
No. 25384 State vs. Spencer Elza et al.
No. 25383 State vs. Arthur Thomas et al.
No. 25633 State vs. John Brown.
No. 25635 State vs. Moses Jiner et al.
No. 25638 State vs. Frank Mayfield et al.
No. 25640 State vs. Gregario Biscano et al.
No. 25643 State vs. David Chicom et al.
No. 25645 State vs. David Olgin et al.
No. 25647 State vs. Miguel Delgado.
No. 25648 Monico Delgado.
No. 25650 W. A. Mims et al.
No. 25655 S. Ardoil et al.
No. 25656 E. O. Lochousen et al.
No. 25657 G. C. Taylor.
No. 25962 H. C. McCarty.
No. 25981 Amanda Lincoln et al.
No. 25666 Ponciano Villaloboz et al.
No. 965 Francisco Salario et al.
No. 26027 Julia A. McLean et al.
“And such other and further suits as the Attorney General may file for the enforcement of the laws. Such representation and service to be limited, however, to the life of this contract, i. e. until August 31, 1911.
“II. That I, Jewel P. Lightfoot, Attorney General of the state of Texas, in consideration of the foregoing agreement and obligation on the part of said John L. Terrell, do hereby appoint and employ the sáid John L. Terrell as special counsel to perform the services set out in paragraph one of this contract.
“Executed in duplicate, this the 27th day of December, A. D. 1910.
“John L. Terrell.
“Jewel P. Lightfoot,
“Attorney General of Texas.
“Being fully advised of the necessity requiring the execution of the foregoing contract, and same having' been made with my consent, I do hereby approve same.
“T. M. Campbell, Governor of Texas.”

Relator, under this agreement, entered upon the discharge of his duties, and, for his compensation, at the end of the month of January, 1911, he received his voucher, which was approved by the Attorney General, and warrant was issued by the comptroller therefor, which warrant was paid, upon presentation, by the respondent, Sparks. For the month' of February, 1911, relator received his voucher, approved by the Attorney General, and warrant was duly issued by the comptroller ; but, upon presentation to the respondent, Sparks, it was refused payment.

Many questions have been presented and ably discussed by counsel on either side of this case, which we do not deem necessary to decide. We shall confine ourselves to the questions which we think are important in the determination of this particular case.

We are of the' opinion that the act of the Thirty-First Legislature which is copied above is. sufficiently specific in making the appropriation therein mentioned and is not violative of section 6, art. 8, of the Constitution.

The following questions of law, in our judgment, lay at the foundation of this ease and are sufficient to determine the issues here presented.

1. Does the agreement between Terrell and the Attorney General Lightfoot confer upon Terrell the official character of Assistant Attorney General? If the effect of that agreement is to constitute Terrell an officer of the state, then his appointment and continuance in office would depend upon the continuance of the term of the Attorney General, who appointed him, and his authority terminated when the Attorney General qualified for his succeeding term and Gov. Campbell went out of office by reason of the succession of the present Governor. Hord v. State, 167 Ind. 622, 79 N. E. 916. The case cited rests upon the proposition of law above stated, and we think it was correctly decided. We recur to the question: Does the agreement between Lightfoot and Terrell confer upon the latter the office of Assistant Attorney General? We find in the instrument no words appropriate to the appointment of an official Assistant Attorney General. The language expresses a contract of employment by the Attorney General, and the undertaking of Terrell is that of special counsel for a specific work. In the case of Hord v. State, cited above, the Attorney General first appointed Hord Assistant Attorney General, and then entered into a contract with him for compensation to be paid for the discharge of duties imposed by law upon' that officer. In this case it is true that the duties to be performed are those which appertain to the office of Attorney General; but the terms of the instrument by which Terrell is engaged are specific in placing him in the attitude of special counsel to assist the Attorney General in the certain named cases and in other matters which may arise, limiting that employment to a time less than the official term. It does not appear that he took any oath of office or in any way did anything which would be required in order to qualify one for such position. We are of opinion that Terrell had no official relation to Lightfoot, and that his contract did not terminate with the expiration of the term of office of the Governor and the Attorney General.

2. We now come to the question: Does the instrument before us constitute a contract between Terrell and the state? The language of the instrument is appropriate for expressing contractual relations and is inconsistent with any other. It mentions a definite consideration which is to be paid by the state for services to be rendered by Terrell to the state in a number of specified cases and also in other matters which might arise in the future. We conclude that the instrument here in controversy constitutes and embodies a contract between the relator and the state of Texas and is binding upon the state ii authorized by the statute. 36 Cyc. 872, 78.

3.The next important question that arises in the case is: Had Gov. Campbell and Atty. Gen. Lightfoot authority under the statute to' employ Terrell .as special counsel to assist the Attorney General in the prosecution of the cases named and other cases which might arise? The power to make the contract must be derived from the statute itself; therefore we must construe its terms to ascertain whether or not that authority is given. For the rule of construction by which we are to be governed, we copy from Sutherland on Statutory Construction, § 341, as follows: “Whenever a power is given by statute, everything necessary to make it effectual or requisite to attain the end is implied. It is a well-established principle that statutes containing grants of power are to be construed so as to include the authority to do all things necessary to accomplish the object of the grant. The grant of an express power carries with it by necessary implication every other power necessary and proper to the execution of the power expressly granted. Where the law commands anything to be done, it authorizes the performance of whatever may be necessary for executing its commands.”

By the terms of the statute of the Thirty-First ■ Legislature before copied, the duty is imposed upon the Attorney General and the power is • conferred upon him to prosecute suits against those who are unlawfully claiming the public lands of the state, for it is evident from the terms of the act that it was in the mind of the Legislature when it enacted this, law that conditions required a vigorous prosecution of the state’s claims against those who were infringing upon the rights in the. public lands of the state. In view of this duty, the language, “and for the purpose of paying any and all necessary expenses in bringing suits or paying expenses in prosecuting same,” empowers the Attorney General, with the concurrence of the Governor, to expend the sum appropriated or so much thereof as may be necessary to accomplish the purpose specified in the act, and the cost of whatever might be necessary in the discharge of the duties thus imposed upon him is included in the term “expense.” The second section of the act shows .that in the mind of the Legislature there was an immediate necessity for the Attorney General to make application of this fund to the protection of the public lands of the state. Suits were authorized to be brought by the language, “to pay the expense of bringing suits and also in prosecuting the same.” Out of this requirement there arose the necessity and the power of said officers to do the things that were required to be done in order to institute and to prosecute those suits, and it requires no argument to show that the services of attorneys were necessary to the performance of this duty. It is true that the Attorney General was charged with the performance of those duties by the Constitution and laws of the state; but the declaration of the emergency clause shows that the Legislature, regarded it as impossible for him to perform this vast amount of professional work. The Governor and the Attorney General were authorized to determine the necessity of employing special counsel to assist the Attorney General and also to provide for the payment of his fees; therefore the necessity for such counsel and the propriety of his employment are not before this court. Those questions are concluded by the decision of those to whom the Legislature committed them. The method by which the payment should be made was a matter of discretion with the Governor and the Attorney General. Would they pay fees for each case, or secure the services of an attorney by the month for a specified time? was submitted to them. That contract provided for services in 21 lawsuits then pending, besides other services which might be called for in suits to be instituted, and, the term of employment being eight months, the sum to be paid is not apparently exorbitant; it may have been the most economical and Satisfactory method of conducting the litigation, and that question was likewise committed to those officers, and their decision of it must control.

The statute under review contains this language: “ * * * To be expended under the direction of the Attorney General by and with the approval of the Governor, and to be paid upon warrants drawn by the comptroller of public accounts on vouchers approved by the Attorney General.” Applying the law to the facts of this case, the making of the contract with Terrell required the approval of the Governor, which was given by writing and was an approval of the expenditure of the fund as provided in that agreement. The payment of the money was provided for distinctly by the language, “to be paid upon warrants drawn by the comptroller of public accounts on vouchers approved by the Attorney General.” This language is plain and distinctly defines the duties of the Governor.

Neither the voucher nor the warrant required the approval of the Governor. The warrant drawn in this case was regular, and the treasurer had no discretion in the matter; he should have paid it.

The mandamus will be issued.  