144
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AWlIN
Eonorable Riohard s. xorrlr
county Attorney
Almrtrong county
OlaPd., hrrr
Dear 8ira
r 14, 1940, mqurrtlng all opln-
Qiertlonr a8 8re h8roin 8t#trd
ter read8 in part a8 follows:
e Or SWL9tO 3111 567 Of the 46th h#3i8-
ding ?or trarrllng rxpenaer for County
OS orrtsln oountlea, rule4 unconstltu-
department In opinion No. o-2127, each
IA county drew traveling lx-
pens,\r ior approximately ten months. After reoelring
the above numbered opinlcn whioh was approve4 by t!m
Attorney General April 15, 1940, ruoh paysent of travel-
iIt& lXpelU* -8 di8OOntiZlUed.
The majority of autt.oritie8 apparently hold that
a atatute is speeurmd to be oonrtitutlonal until adjudged
’ rp
Ronorable Richard S. Morris, Page 2
UnOOn8titUtiOMl by a court of competent ?urI8-
diction. 9 Tex. Jur. 467, Sea. SO; 16 C. J. s.
277, Sea. 100; Tex.98 National Guard Armory Boar4 v.
MoCrar, Atty. General. 126 S. F. 2nd 627; ,;uIm v.
JOhn8on, County Judge et al, 91 S. #. 2nd 499.
‘The majority ot 8uthorltier alma hold that a
rtatute deolared unoonrtitution81 18 null an4 ~014 and
Or no effect a8 of the date of it8 enaotment. 10 CJS 287,
S8o. 101; An4 generally all act8 under an unconstltu-
tional rtatute are null and void. 16 CJS 290.
*The questionI have in mind an4 upon rklch I
have been to fin4 authorltle8
unable in point and there-
fore wl8h to 8ubmlt to your department for an opinion
Is a6 followe: Ie the expenditure of county fun48 for
travelingexpenres of county oomlrsloner8 by virtue of
the above-mentioned statute of ruoh an illegal nature
a8 to require rrpapnent thereof at thle time?
“Ii,
8t t>l8 time, the oomml8rioner8 are not llablo
for return
of the funds drawn under thr rtatute in quer-
tion, would they be liable for return thereor In the
event a court of competent jurl8dlotIon adjudged the
statute In question to be unoon8tltutional?W
In our Oplnlon No. O-23 (Conference O?lnlon 3032)
It wa8 he14 that Howe Bill 727 of the Regular Se88ion, Chapter
4M of the Cen8ral and Speolal Laws of the 45th Legi8lature,
an amendatory Act to Article 1055, Code OS Criminal Proce4ure,
was unoonatltutlonal. Xrter the above mentioned 8tatute wac.
held to be unoonstltutlonal by thlr Department, In Opinion No.
O-142, ltwa8 held that counties could not recover halt co&a
paid ofrlcers under the law declared unconstltutlonal.
;w quote rrom Opinion NC. O-142 as follows:
“It Is true the mark ‘1Enorance of the 1a.N ex-
cuses no one’, is f:enerallvaccepted. The argument ‘5ae
been made it should sp~ly in the case of en unccnfititu-
tional etotute fcr the reason WC!? an Act stands on tf.8
same bee‘-s ae no law et all, but there are scme excep-
tion0.w
The general rule as stated in Texas Jurisprudence,
Volume 34, psEe 473, reads as f0110ws:
.
Honorable Richard S. Eorrie, Wge 3
“An ofrloer who, without authority of law, ool-
lectr taxes or exoesrlve fees may be oompelled to re-
lmburm the persona from whom the money was received.
But Seem paid voluntarily end with full knowledge of
the faots, though under a mIstUce of law, oannot, under
art%led prinolpler, be reoovare4.w (34 Tex. Jur. 476;
32 Tax. Jur. 739; Hirrhfirl4 v. Fort worth National Rank,
03 Tax. 452; 18 S. W. 745; County of Galveston v. Gorham,
49 TOX. 279, 303; City of Hourton V. Fearer, 76 Tax. 565,
13 s. w. 266.)
The Supreme Court or the Unite4 Stete8 in the cam of
United State8 v. Realty Company, 163 U. S. 427, 41 U. S. (L.
Ed.) 215, held knOWledge 0s the invalidity 0s an Act of Congrees
will not be imputed, in advance of any authoritative declere-
tIon to that errect, to those who ere acting under its provi-
8lOIll!, 60 ae to preclude then from having equitlea baaed on
their rolianor upon the Aot,
It ha8 been raid that e mlnit.terlal orrioer ha0 not
the right to deolde upon the oonrtitutionalfty or unoonatitu-
tlonellty 0s an Aot parred with all the formality 0s law. It
18 the duty 0s such ofrioer8 to execute an4 not to pas8 judg-
ment on the law. Volume 9, Texas Jurlrprudenoe, 468; Seseums
v. Bott8, 34 TAX. 335 (holding en UnOOnstitUtiOWl Aot regUlab
lng the oolleotlon of debts protected clerks of courts acting
under it).
In view of the foregoing authorltlrr, you ere respeot-
fully advised that it is the oplnlon of thin Department thet
the oounty funds expended for traveling sxpenees of county oom-
mledoner‘r by virtue of the above mentioned statute8 cannot be
recovers4 by the county.
In reply to your second lusstlon, ycu are further ad-
vised that it Is our opinion that, in the event a court of com-
petent Jurisdiction held the statute in questloh to be uncon-
stitutional, the coml.?sloners wald not be liable for tte funds
dram under the stetute held to be unconstitutional.
Trustlw t??at the forecoiw fully easwers your in-
Wry. we are
Yours very truly
.i’?TiN%Y C?ZNii!bLOF TXXAS