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-OFFICE += THE ATTORNEY GENERAL OF TEXAS
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Honoruble George 11. Bheppard
co~ptrollcr of Pilblio accounts
Austin, Texas
the question as
payPant Pas per
at the StGt0
e on such a contraot on8 that
not ho p3ssch for pay.asnt.
Syete3, addsessed to you3?Self, and advisins th:lt.tho equip:ao~t
coverca by the contract can be roooved an3 rotumcd to the
.Ca3x?ronCan Z::achiaery Cozqany. i,e understand him to mzan by
this that the :mAj.nery incltallsd under the contract iS Such
that 5.t OGu’be removed ad returned d.thOut inju::y to my of
thz othsr property belonging to tho 3~~s I"rison Syntsn, in
Pact I&, ~l).ingoon hss verbally ac?vlucd w that such 1s trua.
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,. lionp$%blc George H. Sheppard, Page 2
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Icn the case of Salt Creek T. P. vs. King Iron
Bridge'.and Manufacturing Co., 33 Pac. 303, the Supreme
Co& ;OP Kansas was construing. a contract wherein the Salt
Creck township had contracted with the King Iron &id&e and
Wnufaoturing Coqany Par the erection of a bridge along
the‘h;,ighway of said oity. The court held that the oontract
was.vo?d because the city did not have the authority to oon-
tract ,for the erection of the bridGe. The COWS aid 8tb3
as ,:.-'y,-,
f ollow3,
., :~hoiwv*r :
n* * .* Of course, as the bridge was
'. constructed'upon the highway with the per-
mission of the authorities, the colapmy my
p~~ovg the sme. AS the tovmhip rifuses to
pay for the bridge, it can have no interest
or right to keep it. All- the parties acted
without any statutosy authority."
‘In the case OS E'loyd -County +s. Owe~o Bxiclge Co.,
137 8, Yl. 237, the Court of appeals of Kentucky was constru-
f- ing a contraot entered @to between a county and a bridge
company for the emotion of three bridges. The court held
the oontraots to be void. because the agents of the county
who had .eutered into the contracts were without authority '
to mks such agreeinent. The. oourt coiwludod as follovis:
"HoIor;ever, there is a rule which is ap-
plicable to this case, as was sa:id by the
S~pr%r@~ Court of the United States, in Marsh
v, Pulton County, I.0 W3110 676, I.9 L. Ed,
1040; tho obligation to do justloe rests
upon all persons, natural and nrtificial;
and ii a county obt&.ns ffionoy ‘or proprty
of others without authority, the law, in-
dependent of any statute, will compel resti-
tutlon or oornponsation. Under this rule,
Floyd coilntg will not be pcrxitted to ye-
tain the bridges md not pay l"or them. Ap-
'pellant having declined to pay for the bridaes,
appellee will be pcwitted to xemwe the
briaees and ell the mtcrinl which it fur-
nished in their construction. This is the
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I ~onok&io George H. Sheppard, Page 3
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only reiaedy the law affords uppellcc. city
‘. of ,j%.rdwell v. Southern Engine & Boiler
Yiorks , 139 Ky. 222, 113 S.Vf. 97, 20 L.R.A.
,.: (H.S.) 110; Floyd County v. Allen, 137 Ky.
,: 555, 126 S. ii’. 124, 27 L.R.A. (H.S.) 1125.”
;s In the case of Lee vs. Board of Cormiosioners of
ZoiPoe County, 114 Fed., 744, the county commissioners had
entered into four contracts with the bridge coznpsny for the
construction of bridges across the streams in the county,
The court held that the commissioners weI’e unauthorized to
enter into such contracts and that such contracts were void,
: The question before the tour t was whether or not the bridge
! co~pxiy had the right to re;?ove the bridges and xhether or
j not such bridges belonged to the county or to said cozoany.
The court stated the proposition and answered the same as
follo~;~s:
nThe provisions of the statutes of the
state of Chio relating to the purchase and
erection of bridges were not coz@ied with by .,
the county co.@soioners before entering into
the contracts with the Canton Bridge Coagany,
and it is conceded by both purties to this
suit that they were invalid, and no recovery
could be had upon them, nor upon the warrants
given in paylxent, for agy*p;rt of the p~urchsse
price of the bridges. .
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n* * 2.. But while the law affords no
re:&dg, equity, althou& it will not enfmce
the contmct or create -a contract between the
parties on sccount of the sccegtance ana re-
tention of the property, when the property is
in existence, and in the handn of the defendant,
~$11. not ;illolS it to retsin that to which it
has no title whatever, and grevcnt the owner
from reclaim:nS it. The case presented by the.
bill shorn no aoral turpitude in the transaction,
and, althouf;h the bridge cornpay should h;:ve
ascertained vihether each step provided by the
st%tutes hd bean pyoRerly tciken, the 1~ placed
upon the defendant the duty of takinS those:
steps. It wan necessary for it to co.@y with
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‘Honorable Geor$e.H. Sheppard, Page 4
..~&ery provision of the statutes in that behalf
:before entering into these contracts, and it
,.repi+esentcd to the bridge com?ang that it had
.-YIO complied, and thue misled the bridge c~nigany
Into entering into the agree.rsent, the carrying
out of .whioh alaced these bridges in the hands
of the defendant. The complainant has no rexuedy,
at lm, rind, to deny him equitable rel.ief would
be to enforce the contract on the part of the
.brid&e cornpony, rotI to allow the defendant to
repudiate its part of the same contract, Andy’
thereby aopropriute, without compensation,
property to whiah it had no legal or equitable
right . It VIESsaid by the’ federal supreme
court in the case of Eaxsh v, Fulton Co., 10
Wall, 676, 684, 19 I... Ed. 1040, 1049:
**The obligation to do justice rests. upck .’
all, person3, natural or artificial; ana, if a
county obtains the money ‘or psopcrty OS others
vrithout authority, the Law, indoyendent of any
statute, will colm>el restitution or oom~cnoa-
tion ,l
“If’ there wan any fraudulent purpose of
the bridge company, or connivanoe on its part
at the action of the defendant in disregarding
the previsions of the statutes, BO that the
purpose for which those provisions were enaoted
should be thwarted, then neither the bridge
oompany nor this congl.ainant could come into a
court of equity sod ask p.ny relief, as they
could not cor*_e into court with olean hands; :
and the relief would be denied for that reason,
and.n,ot on the doctrine of the yublio policy
0% the stzte. There is no public policy reC-
~gn;ni~.edby th.e courts Which allows ally person,
naturcl ct’ artificicl, to take the psopcrty of
another, and appropriate it to it3 own use, and
d&y to the person who, is ionoc.ent of fraud the
right to reclaim it: * * f.‘l
No rulejustice
of requires that the State
,F should retain this machinery cud never p.sy for ibLr If
tho machinery can be rculovcd without injury to any of
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i- &orable.~Ceo~~e X. Sheppard, PaSe 5
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the other,property belonging to the State, as we are lnforzied
and OSSUXI the ass6 to be, equity and natural justice would
see;? to,rcguire that it be retuxcd, Under such clrcmstances
to hoM.othcrwisc, in effect, would be to otiorce the contract
:as ag&lnst the Coa~any but to relieve the State of its obliga-
tions uilder it. Slnco the cont:act.waa void, tis held in our
Opini6ti No. O-2505, Y:O do not belicvo that it can bo enforced
asagainst elthcr party, atd in equity the property should be
and my be returned. To that end it is our opinion that tho
General Xansger of the Texm Prison Systo.3 my pemit agents
of the company to entcr,the pre;?ises and take its property,
injury-or dazeg.e to any property of tho State to bo Gtriotly
guard63d~agRiQSt.
Your8 very truly
GX.:RS APPROVEDDEC
4. 1940
ATTORNEY
GENERASY
03 TR%AS