Untitled Texas Attorney General Opinion

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