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