Untitled Texas Attorney General Opinion

February 28, 1949. Hon. Max E; Ramsey Opinion No. v-780. County Attorney - Andrews county Re: The legaiity of the pro- Andrews, Texas posed expenditure of’road bond funds 88 hit relates to the bond elk&ion or- der, Dear Mr., Ramsey: Your. request for an opinion is substtitlailg as follows:‘. -“In March, 1948, there Wa8 held in An- drew County. a bond election for the purpose of determidln~ whether or not bonds s.hould be issried In the &mount~oS $260,000.0~ for road. purposes., In the offlclal~ ballot ‘the proposal was stated In’~the following manner: “%OR ‘the issuance ~of $260,0bO.OD- .tiondri. and the ls+yi@ of. the. t&+es~‘Ln payment thereof; ‘the: proceeds to:,be., :. ., expkded on apprdximately twentf ‘in+.le~ of road from Andrew& to’the &wsori County line, in a notitheasteplg dir~ec- tlon. toward Lamesa. t ‘The result of this &e&Ion was favor- able and In furtherance oS.thes&plans a con- tract vas entered into .betwee& Antiews county. and the State of’ Texas- SOP.the consttiuctlori of the ~oado It was subsequently proposed that this road be constructed from a pbint two miles east of the town of Andrevs anil go- ing in a northeasterly dlrectlon to a point. on the east boundarg.line of AndPews County, appyoximatelg six br seven milea south of the corner .oS Dawson County; the. same being ~‘t,& boundary line between. Andrews Comtf and ‘tip- tfn~ County. . . Eon. Mm E. Ramsey, Page 2 (v-780) “It was orlglnally the *tent&n that a road be built Prom Andrews to Lamesa by the most direct route possible, At the time the Commissioners’ Court ordered the election It was insisted by interested citizens in the County that the location be specifically des- ignated and for that reason the insertion was made; ‘to the Dawson County line.’ Prior to the election and also prior to the time tp @&l;;ivas circulated the Commissioners composed of different Individuals than that Y ourt which, ordered the election, had a survey made from Andrew6 in as direct a route as possible to the extreme northeast corner of the county. It would seem that the intentions were rather clearly explained by these actions but It was generally thought that the road would go as shown on the ht- tached sketch of my letter. “The questicq now arises as ‘to the au- thority of the Couimlsslonerst Court In An- drew8 County in building this’road from a point two miles east OS Andrews to the HartIn County line to a point seven or eight miles south OS the northeast corner of Andrewa county. ‘I In an opinion numbered O-6973 dated“December 12, 1945, rendered in a prior admlni6tpatlon, this of- fice stated: “It has repeatedly been held by the Ap- pellate Courts of this State that when a cdunty commlssioners~ court enters a pre- election order designating the road and spe- cifically declaring the purpose Sor which the bond money is to be expended, SaLa, com- missIoneras court, or subsequent. commission- ers D courts 0 cannot change the designation of such road or expend the money Soi? any other purpose than that specifically designated in the pre-election order. Black’v. Strength, 246 S. W. 79, Fletcher V* Ely, 53 S. W. (26) E17k errr refused, Moore v. Kaufman, 200 0 . Any other rule vould tend to un- dermine pibllc confidence in the acts of pub- lic officers q See also Golden @ate Bridge Hon. Max 15. Ramsey, Page 3 w-780) and Highway District v. Fllmer, 21 Pac. L2d) 112, Perry v. Los Angeles, 203 Pac. 992. In an opinion numbered O-4078 dated October 15, 1941, rendered in a prior admlnlstratlon, this of- fice stated: "The purposes for which the proceeds of the bonds were to be used being a part of the election proceedings would require that the Sunds derived from said bonds be used only ln accordance therewith. In the case of Moore v. Coffman, 200 S. W. 374, the general rule IS laid down by the Supreme Court and Is sub- stantially that IS the purpose for lssulng bonds Is speclflcally stated in the petition, order and notice of election, the voters have the right to rely on such statement and the use of such bond funds othervlsewould be pro- '. hiblted by law. Such a statement becomes a . part OS an Implied aontract entered Into be- tween the voters and the authorltles entrust- ed vlth the expenditure of such fumls.~” Inasmuch as the question presented'18 a fac- tual one, It resolves Itself into the proposition of whether the Woposed change In the road Srom Andrew8 to Lamesa LB ln subatantlalcompliance with the will of the voters as expressed ln the bond election. While It i.8 true that,the lav does not require a literal per- formance, nevertheless it is out opinion that there Is such a material change ln the proposed route from that designated in the bond election order that It would not be ln substantial compliance. It Is to be noted that the otilglnal route was from Andzoews to the Dawson Coun- ty line vhereas the proposed change would ln no vise touch the Dawson County line but on the coritrary would be to the Martin County line. In the case of Fletcher v. Ely, 53 S. W.(2d), 817, the Court state& "That, in the absence of a definite ldentlflcatlon of the specific road to be paved, a discretion exists in the cormrrisslon- em I court as to-which of two OP more routes may be followed between control points named In the pre-election orders, which discretion, however, ma7 be and Is surrendered when in Hon. Max E. Ramsey, Page 4 iv-780) response to a referendum, under. a proper..or- dei+ of submission, the @artlc@&r rotits:ai!d road to be paved 1s IdentlSled .tid named. :. a . “That, when the voters thus ‘spsarc~yne proceeds of the bond Issue arti ~‘e~m&rkedt’~ with the character of a trust fund’:whlch may not be diverted to iin?ther purpose or pro- ject, and any such attempt will be,enjoQed bg a court of equity. The result ‘thtis~ ob-, talned has been referred to as having the binding effect and force of a contra&; Black v. Strength, 112 Tex. 188, 246 S..W. 79; 19 R. C. L. pp 1163, 1164; Roane Cotity,~ Court v. !‘Brlen, 95 W. Va. 32, 122 S., E. 352, 355. By virtue of the ~foregoliig authorl~y%n!% ~ttie. opinions heretofore rendered, it ii3-‘our op‘*lori.~;th,~~ :tae proposed change Is not In subs~tant$&l co~pl~~ce .w$th the will of the voterp prevlousfg:expressed. SUMMARY Where the electorate ~has voted bonds’ to raise money to be. expehded on a.$+rt+X.+ .: la3 road, the route:des%g&ateQ mus$ ,subr:~.:.c, stantlally comply with the route..specifled In the bond proceedings.. The proposed routing of the road iii question 1s not in substantial compliance with the will OS the voters previously ex: bressed. Bw:bh