THEAITORNEY GENERAL
OF TEXAS
AUSTXN 11.TE-
GROVER SEILERS
*TrORNEY GENERAL
Honorable J. C. Hamilton
County Auditor
Ector County
Odessa, Texas
Dear Sir: Opinion No. o-6418
Re: Is E&or County liable to a County
Commlasioner who was inducted into
the military service for his
salary while in the military aer-
vice from October 15, 1944,"to
December 31, 1944? Ana related
questions.
Your request for an opinion on the above matters has
been received ana carefully considered. We quote said request
as follows:
"I am submitting herewith the following ques-
tions for construction and application, to-wit:
"The facts are that the Commissioner of Pre-
cinct No. 4 of Ector County, Texas, was inducted
into the Unlted States Navy. He did~not resign
hia office as Commissioner when he was Inducted.
The County Judge of Ector County, Texas, after
the induction of the Commissioner declared the
-officevacant and appolnted a aucceasor to the
absent Commissioner. The aucceaaor filed hla
bond and otherwise duly qualified himself to act
as Commlsaloner, and did act as such Commiaaion-
er from on or about the 15th day of October, A.D.
1944 to the 31st day of December, A.D. 1944, at
which time the term of the Commissioner expired
(the Commisaioner~of Precinct No'. 4 who was ln-
ducted into the Navy was not a candidate for re-
election to office). The county paid the salary
of the absent Commissioner for the two and one-
half months that he served to the succesao??.
"The Commissioner who was Inducted into the
military 'servicehas made demand upon the county
for the payment of his salary.
Honorable J. C.,Hamilton, page 2 o-6418
"I submit to you the following questions:
(1)* Is Ector County liable to the Commissioner
who was inducted into the military service for
from October 15, 1944 to December 31,
:;;43"':g If the answer to the foregoing ques-
tion is ln'the affirmative, then, who is liable
to the county for the payment of'the salary paid
to the person who was appointed as successor to
the Commissioner who was inducted into the mili-
tary service? (31. If the answer to the first
question is in the negative, then, is the action
of the inducted Commissioner for the recovery of
hl~asalary against the Commissioners' Court or
against his successor to whom the salary was paid?
"I'have carefully considered your Opinion No.
O-5245, and from such opinion it may be determined
that the appointment of the Commissioner to suc-
ceed the Commissioner who had been inducted into
the military service was absolutely void and of
no effect, and that the Commissioner who was in-
ducted into the military service was entitled to
the compensation incident to the office.' On page
4 of the Opinion No. O-6245 the second paragraph
reads as follows:
"'It is well settled that salary
for compensation of an officer la incl-
dent to the office, and not dependent
upon services actually performed by
such officer. It is obviously true
that compensation should In no event
be uald to two County Commissioners
for-the same time, f'brthe same pre-
cinct.' (Underscoring mine)
"From a construction of the entire opinion
It would appear that there would be no question
about the payment of the compensation of the of-
fice to the Commissioner who was inducted into
the"mllitary service, but the second line of the
paragraph above quoted states that compensation
should not be paid to two County Commiaslbners
for the same time,for the same precinct, and
since the county has paid the compensation once
the question has arisen as to whether or not it
can be paid again.
"It would' seem that if the appolntment~of
the successor was absolutely void then the pay-
Honorable J. C. Hamilton, page 3 o-6418
ment of the salary to this suctieasorwas payment
to a~total stranger, so to'speak; although such
payment was made In gOOa faith, and would thereby
render the-Commissioner's Court liable for an
unlawful payment. But the case~of Welch vs. Kent,
153 S.W. 2nd 284 would dontradlct this principle
where the payment was made In good faith.
"Your construction and application of your
Opinion No. 0-6245 under'theae circumstances
would be greatly appreciated."
You are correct in your conclusion that it may be deter-
mined from our Opinion No. O-6245 that the appointment of'the
commissioner to suceed the commissioner who had been inducted
into ,themilitary service was absolutely void and of no effect,
and that the commissioner who was inductedinto the military
service is entitled to the compensation lncldent to the office.
It is our opinion, therefore, that your first question should
be, and it is, answered in the affirmative, and that E&or County
Is-liable to the commissioner who was inducted Into the mili-
tary service forhis salary from October 15, 1944, to December
31, 1944.
It was intended to hold b$the second llne"of the para-
graph quoted by you from said Opinion No. O-6245 "that
. compen-
aatlon shbuld In no event be paid to two county commlsalonera
for the same time',forthe-'same precinct", that the county~would
notbe legally~liable to make such payments. However;'slnce
Ector County has paid such salary to the commissioner appointed
by the'county judge a8.a successor to the absent comml'ssioner,~'
which appointmentwas absolutely void, the payment of such salary
to himwas, as stated by you, payment to a total stranger, so
to speak, but such pagment would not affect the liability of the
county to pay such salary to the commisaloner legally'entltled.
thereto. This might cause the county to pay such salary-twice,
but it would have its cause of action for such illegal payment
against those responsible therefor, as well as against the ap-
pointed commissioner who received same.
As to your second question, we adopt and quote the
following from our Opinion No. O-4715:
“Art~icle2340 of the Revised Civil Statutes
of Texas, relative to bonds as shall be executed
by County Commissioners, contains In part the
following provisions:
Honorable J. C. Hamilton, page 4 o-6418
0 1
.conditioned for the falthful'per-
a . *
formance of the duties of his office, that
he will pay over to his county all moneys Il-
legally paid to him out of county"funds; as
voluntary payments or otherwise, and that he
will not'vote or give'hlsconsent to"pay out
county funds except for lawful purposes.'
If. . . . .
"'Under the terms of the."statutehereinabove
referred to (Artlcle'2340), each commissioner was
required to execute a bona conditioned for the'
TaithfBl performance of the duties'of his-'office
and that he wbuld pay over to his County all
moneys 'illegally paid to him out of county funds,
as voluntary payments or otherwise.' The law
under which payments of ,salarleswere made'~to
the Commissioners of Hays County over and above '~
the sum of $1400.00 per year being unconstituional,
all sums paid to each of them In excess of said
$1400.00 per year were illegally paid; therefore,
each of said Commissioners is liable to repay
such excess salaries so paid.to him,"and lt~is the.
opinion of this department, and you are so advised,
that each of said Commissioners is liable for all
sums paid to him over ana above the $1400.00 per
year provided by law.
"In further support of this conclusion, we
direct your attention to thencase of Kitchens
et al v. Roberts, County Treasurer, 24 S.W. (2)
464. This was a suit by the County Treasurer of
Wood County to recover of a county commia'sioner
aiidthe surety on his bond certain sums paid to
,said commissioner in excess of the amount due
him under the general law. Sala sums were de-
manded by and paid to said commissioner by author-
ity of a special act of the Legislature, and the
suit to recover same was on the theory that the
Legislature was without power to provide by said
special act for the payment to a'county commis-
sioner for his services as such a sum in excess
of that fixed by general law. The trial court
sustained this cohtention, held said special act
uncohatitutional and gave plalntlff judgment for
the amourit sued for. Thlasjudgment was affirmed'
by the Court of-Civil Appeals and application for
wrlt“of error was refused by the Supreme Court.
See also Duclos et al. v. Harris County, 251 S,W.
Honorable J. C. Hamilton, page 5 o-6418
569, affirmed by Supreme Court, 263 S.W. 562.
The case of Cameron County v. Fox, 2 S.W. ~(2)
433, was a suit by a county to recover from a
tax collector premiums on bonds theretofore al-
lowed to him by the commissioners court, and
the Commission of Appeals held that, notwlth-
standing the payment tb the tax collector was
voluntarily made; the amount so paid could be
recovered in an action by the'~countyas said pay-
ment was made without lawful authority.
"As to the liabilltg of each Individual Com-
missioner under that part of his bona which pro-
vides 'that he will not vote or give his consent
to pay out county funds except for lawful purposes,'
for the excess salaries'paid to each of the other
commissioners over and above said $iqOO.OO per
year, we refer you to the rules of law laid down
in the case of Welch et al. v. Kent et al., 153
S.W. (2) 284. ,This was a suit by the County
Treasurer of Jefferson County against the County
Commissioners of said County to recover the amount
of certain claims against the County which were
alleged to have been paid by said Commissioners
without authority of law, and that, as to said
Commissioners, their said act constituted a voting
and consenting to the payment of funds and moneys
out of the county funds for unlawful purposes,
and that said Commlsalonera neglected In said par-
ticulars to faithfully perform and discharge the
duties required of them. The trial court rendered
judgment in plaintiff's favor, and the Court of
Civil Appeals reversed and rendered said judgment
on the ground that, 'in voting "to pay out such
county funds," a county commissioner is not lia-
ble'when actuated by pure motlvea, but only when
he acts mallciouslg or corruptly, or under cir-
cumstances imputlng'malice or corrupt motives.
He Is not liable to his county for his'judicial
acts, no matter how erroneous In law may be his
judicial decision, so long as he acts in good
faith.'
*Therefore, it is the opinion of this depart-
ment that each of said County Commissioners would
be liable for the excess salaries paid to each of
the other Commissioners, In addition to the amount
Individually received by him, if it can be shown
that he acted mallcioualy or corruptly, or under
circumstances Imputing malice or corrupt motive,
or without good faith. . . . . .
.
Honorable J. C. Hamilton, page 6 o-6418
"Article 1649 of the Revised Civil Statutes
of Texas gives the requirements of a bona for a
County Auditor, and same is conditioned 'for the
yaithtil performance of his duties;' Article
1651 of said Statute contains In part the follow-
ing : 'and he shall see to the strict enforcement
of the law governing county finances.'
"Article 1653 provides that he shall have con-
tinued access to and shall examine:all the books,
accounts, reports, vouchers and other records of
any officer, the otiers of the commissioners' court,
relating to finances of the county, etc.
"Article 1660 of said statutes provides that
all claims, bills and accounts against the county
must be filed in ample time for the AuaFtor to
examlne and approve same before the meetings of
the commissioners' court. That no claim, bill or
account shall be allowed or paid until it has been
examined and approved by the County Auditor.
"Article 1661 of said statute contains in
part the following provision:
"'All warrants on the County Treasurer,
except warrants for jury service, amst be
countersigned by the County Auditor.'
"See also 11 Tex. Jur., Sec. 52, p. 581.
"The rule as to when a county audltor can be
held liable for payments of compensation paid to
others is laid down in the case of Welch, et al.
vs. Kent, et al., 153 S. W. (2) 284, which in-
volves a county auditor and his successor in of-
flee, as well as the county commissioners, in the
following language:
If
1. . 0 One condition of their oath and
bond (Art. 1649, R.C.S. 1925) was that they
would faithfully discharge the duties of their
office. To constitute a cause of action
against a county auditor on his bond, the
pleader must allege and prove that, In the
matters charged against him he acted mali-
ciously, corruptly or negligently, 20 C. J.
S ., Counties, 1 140, p..952; these allega-
Honorable J. C. Hamilton, page 7 o-6418
tlons must be made by the pleader because of
the presumption of the regularity of the of-
ficial acts of the county auditor. . . . .'
"See also the caae.of Wade vs. Board of Com'ra.
of Harmon County, 'et'al.',17 Pac. Rep. (2) 690,
Supreme Court of Oklahoma.
"vnder the statutes ana rules above referred
to and set out, It was made the duty of the county
auditor tb see that no payments of salaries were
made to said county commissioners in excess of
those provided for by law. Salaries having been
paid to the Commissioners of Hays county in ex-
cess of those provided for by law, we hold that
the County Auditor Is liable for all such sums so
paid, Insofar as he acted maliciously, oorrupt-
ly or negligently In permitting said payment to
be made. It is our further opinion, however, that
the same rule of good faith would apply to him as
we have hereinabove held should apply to the County
Commisaionera, . . . .
"The generai rule as to when the sureties on
the bond of public officials can be held liable
for'the action of said public officials Is laid
down in the case of Jeff Davis County vs. Davis,
'etal., 192 S.W. 291, writ dismissed. This was
a suit against the sheriff and the sureties on
his bond to recover certain sums of money paid
to said sheriff on claims presented by and allowed
to him that were alleged to be unjust and Illegal.
The trial court sustained exceptions filed.as to
aald'auretlea and dismissed the said.suit as to
them'; Sustaining this action, the Court of Civil
Appeals held as follows:
If
t. . . . . .
"'And in Heldenheimer v. Brent, 59‘Tex.
533, it was said:
"'To charge the sureties on a sheriff's
bond, the act complained of amst not only
be one which he might rightfully do as sher-
iff, but which must be actually done by him
as sberlff, under claim of right to do the
act as such officer.'
"'This statement of the law la the appll-
cation of a rule by which the acts of a aherlff
Honorable J. C. Hamilton, page 8 o-6418
for which his sureties may be held liable
can be distinguished from those acts for
which they will not be held liable. The
former are termed acts done "virtute officii",
and the later "colore offlcil". The dlstinc-
tion is this: 'Acts done * virtute officii"
are when they are within the authority of
the officer, but when in the doing he exer-
cises that authority improperly, or abuses
the confidence which the law reposes in him;
whilst acts done "colore officli" are where
they are of such nature the office gives him
no authority to do them. Gold v. Campbell
54 Tex. Civ. App. 269, 117 S.W. 463, at 466.
I. . . . .t
If
"See also Miller et al. vs. Foard County,
et al., 59 S.W. (2) 277.
"Under these rules it Is our opinion that the
sureties on the bond of the County Auditor wouId be
liable for the repayment of any and all aums paid to
said County~Commissioners that the Auditor himself
would be liable for the repayment of, for the rea-
son that permitting said payments to be made to said
County officials was in violation of the terms of
his bond which provided for the faithful performance
of his duties.' In other words, the acts of the
County Auditor In approving payment of said excess
salaries to said County Commissioners was done with-
in his authority as such officer. Ordinarily these
rules would prevent the sureties on bonds of said
County Commissioners from being liable for the ex-
cess sums paid to said Commissioners, since same
were not paid in the performance of any official
duties on the part of said Commissioners; but, In
becoming sureties on the bonds of said County Com-
missioners, said sureties agreed that said Com-
missioners would 'pay over to his County all moneys
illegally paid to him out of County funds, as vol-
untary payment or otherwise, and that he would not
vote or give his consent to pay out County funds
except for lawful purposes.' This provision of
said bonds having been violated and said bonds hav-
ing embraced the liability to refund said salaries
as for money unlawfully had and received from the
County, we hold that the sureties on the bonds of
said County Commissioners are also liable for any
and all sums the Commissioners themselves will be
liable for.
Honorable J. C. Hamilton, page 9 o-6418
”. . . . . . . . . . . ”
Article 1928, Vernon's Annotated Civil Statutes, sets
out the requirements of the bond of a county judge, one of which
is "that he will not vote or give his consent to pay out county
funds except for lawful purposes".
In the case of Steusoff et al. v. Liberty County, 34
S.W. (2) 643 writ refused, it was held that the judgments and
orders of the commissioners court approving the~accounts of
Steusoff, who was tax assessor of Lib~ertgCounty, for sums in
excess of the actual earnings of his office were absolutely void,
and that Liberty County was entitled to judgment against him
for.such excess. See.also Baldwin v. Travis County, 88 S. W.
480, writ denied, and Adams v. Stephens County, 41 S.W. (2) 989,
writ refused.
It Is our opinion that, under the above rules of law,
the party appolnted by the county 'judgeas commissioner to auc-
teed the county commissioner who was inducted into the military
service Is liable to Ector County for the salary received by
him, also that the county judge, county commissioners and county
auditor"of Ector County, and the sureties ou'thelr respective
bonds;are liable therefor, if they acted maliciously or cor-
aptly, or under circumstances imputing malice or corrupt
motives.
The appointed commissioner evidently executed the both
required by Article 2340 hereinabove referred to and, while such
appointment was illegal and void and the sureties on said bond
would not be liable for'the salary @aid to such appointed commls-
sloner under said bond as a statutory bond, since such salary was
not received by said appointed commissioner officially, there-
fore, was not within the conditions of such bond, it is our
opinion that said sureties would be liable under said bond as a
common law obligation. In support of this conclusion, we direct
your attention to the following:
In the case of Hummel et al. v.' Del Qreco, 90 S.W.
339, there was involved a cause of action againstthe principal
and sureties on a bond couditioned on the principal therein pay-
ing to the obligee the amount of a legatee in a will on the
establishment of said will. The execution of the bond, as the
principal intended, defeated the obligee's right to have the es-
tate.admlnistered and the legacy paid in'process of administra-
tion, said bond having been given voluntarily and in lieu of ad-
ministration. In passing thereon, the court held as follows:
"The probate of the will Ipso facto est,ab-
lished the legacy bequeathed as a charge upon the
.
Honorable J. C. Hamilton, page 10 o-6418
estate of the testator. The bond sued upon was
executed to secure plaintiff, as legatee, in its
payment, in event the'will was'probated, thereby
fastening upon appellants the absolute liability
to appellee upon the happening of such event. Its
purpose was to defeat the application of appellee,
as legatee to have an administrator of the estate
of decedent appointed with the will annexed, and
enable the principal in the bond, appellant Chas.
F. A. Hummel, to obtain end-hold possession of its
assets free from charge of administration, thus
preventing eppellee from exercising her right to
collect her legacy through the medium of the pro-
bate court. This purpose having been attained
by appellant Hummel, and such right or appellee
defeated, we can perceive no reason why appellants
should not be bound by the court as they bound
themselves by their bond.
II
. . . . .
"Let it be conceded that the bond sued upon
was not a statutory bond, and that it should not
have effected the purpose for which It was exe-
cuted; 'i.e.defeated the legatee's right to have
the estate of decedent edministered'upon and her
legacy paid in process of administration. It was
nevertheless a common-law bond, end through it
appellants' (Hummel) purpose was accomplished,
end appellee's right defeated. The bond having
had this effect, and being a valid and binding
common-law obligation, appellants must be held
to discharge the obligation Imposed upon them-
selves by its terms. . . . . ."
In the case of Maddox et al. v. Hollums, 241 S.W.
1053, the court was considering a question where the defendant
in a sequestration proceeding had given e bond in order to hold
possession of certain property pending litigation, but only one
'suretysigned said bond. However, the court held said bond good
es a common-law obligation, holding thereon as follows:
"The replevy bond in the instant suit Is
In the levy language prescribed and has all the
requirements of the above articles of the statute,
with the exception that it is signed by but one
surety, C.C. McCarthy, the appellant. The prln-
cipal question presented by the assignments is
that of whether OP not the court erred in holding,
In effect, that the bond sued upon, while not good
Honorable J. C. Hamilton, page 11 o -6418
es a statutory bond, was, under the facts of this
case, good and enforceable as a common-law oblige-
tlon. This appellant surety specially insists
that he is not legally liable thereon at all, as
the bond is in terms purely a statutory bond, re-
quiredby law to be executed by two or 'more sure-
ties, and is not binding on'one surety when exe-
cuted by him alone. The practical end general
difference between a 'common-law bond' end a
'statutory bond' Is that the latter conforms to
all the requirements of the statute, while the
former does not. It is quite generally held that
where "the terms and conditions' of the bond sub-
stantially deviate from 'the conditions' prescribed
by a statute; or where a bond Is voluntarily given
when notat all required by law, it Is deemed a
common-law end not a statutory bond. .,. . . .'I
The bond given by the appointed commissioner and his
sureties having been a voluntary one and having had the effect
to cause to be paid to such'commi'sslonersalary which would not
have otherwise been paid to him, he and said sureties should be
held liable under its terms and be required to pey~to Ector
County the salary illegally pald to him outof'the funds belong-
ing to such county.
Article 1709 of Vernon's Annotated Civil Statutes Is
as follows:
"The county treasurer shall recelve,all
moneys belonging to the county from whatever
source they may be derived, and pay and apply
the same as required by law,~in such manner es
the commissioners court of his county may re-
yi;e ;;t4direct. (Acts,,1846, p. 338; G.L. vol.
f * ; P.D. 1097.)
Article 1713 of said statutes Is es follow,s:
"The county treasurer shall not pay any
money out of the county treasury except in pur-
suance of a certiflcete or warrant from some of-
ficer authorized by law to issue the same; and,
if'such treasurer shall have any doubt of the
legality or propriety of any order, decree, cer-
tificate or warrant presented to him for payment,
he shell not pay the same, but shell make report
thereof to the commissioners court for their con-
sideration and direction. (P, D. 1101.)'
.
Honorable J. C. Hamilton, page 12 o-6418
In the case of McDonald et al., School Trustees, 'v.
Farmer, County Treasurer, et al., 56 S.W. 555, the court had
under consideration the question of the llabllity of a county
treasurer for approving warrants payable to the county assessor
which allowed said county assessor illegal commissions. In
passing upon sald question, the court held es follows:
"As to the treasurer, he paid thenamount or-
dered by the commissioners' court upon a warrant
drawn by proper authority. County warrants are
prima facie evidence of an existing end's matured
aebt. Leach v. Wilson~Co., 62,TeX. 332; Rev. St.
arts. 876, 852. They are prima facie valid but
open to defenses. 1Dill. Run. Corp. 1 1 487, 502.
It Is the duty of the county treasurer to receive
all inoneysbelonging to the county, end to pay
and apply the same as required by law, in such inen-
ner as the commissioners' court of his county may
direct. Rev. St. art. 926. Mandamus will ordin-
arily lie to compel him to pay e cmmty warrant;
but on account of the discretion vested in him by
article 930 of the Revised Statutes, where he has
any doubt of the legality or propriety of any or-
der, decree, certiflcate;or warrant presented"to
him for payment, not to pay the same, but to make
report thereof to the commissioners' court for
their consideration and direction, it has been
held in this state that mandamus will not lie to
compel the treasurer to pay a warrant, the payment
of which has been prohibited by that court. Walker
v. Barnard, 8 Tex. Civ. App, 17, 27 S.W. 726.
In this decision the court of civil appeals for
the Fourth district refused to follow Johnson v,
Campbell, 39 Tex. 83, which holds that the treas-
urer has no discretion, but must peg a warrant
drawn in accordance with law, and that mandamus
will lie to compel him to do so. If, after re-
port to the commissioners' court; it should direct
the claim to be'paid, it may be',atleast question-
able if'the treasurer has any further dismetion
as to payment. When the treasurer has no reason
to doubt the legality or the propriety of a war-
rantspresented to him for payment, it is his duty
to pay it; and, having paid it in the discharge of
his duty, he ought not to be held liable to the
fur&out of which it has been paid. He'mst, how-
ever, act in good faith, and exercise care and
prudence to make no payment fop which the county
or school district should not be held liable.
The treasurer was presumed to know the law, --that
the assessor was only entitled to a commission
Honorable J. C. Hamilton, page 13 o-6418
of 1 per cent. of,the taxes levied and assessed;
but it does not appear'that he knew what amount
had been levied, nor what the assessed value of,
the property In the district was, and it seems,
also, that the warrant paid embraced other items.
Whether or not he should be protected in the
payment would be a fact to be determined by his
care and good faith. He should take care to see
that the warrant has been drawn by the proper eu-
thority, and in accordance with law. 'He cannot
have credit for a warrant issued for an Illegal
claim, If he has reason to belleve that the demand
for which It yes issued was In fact illegal.
9 . . . . . .
Applying the rules of law laid down in this opinion
to the present situation, the county treasurer of Ector County,
and the sureties on his bond, are also liable for the salary
paid to said appointed county commissioner, unless said county
treasurer acted in good'faith and had no reason to believe that
the payment of said salary was illegal.
Your first question having been answered ih the af-
firmative, an answer to your third question is not called for
under the wording of your request, but, if the inducted county
commissioner should have to file suit to.'recover'his salary,'
such suit should be against Ector County end not against the ep-
pointed commissioner to whom the salary was paid.
Trusting that this satisfactorily answers your Inquiry,
we remain
Very truly yours,
ATTORNEY GENERAL OF TEXAS
By s/ Jas. W. Bassett
Jas. W, Bassett
Assistant
JWB:mp:wc
APPROVED MAR 15, 1945
s/Carl& C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinlon Committee By s/BwB Chairman