NO. 1098.
1. Commensuratewith.~~
the
_, duty lmposbd upon county
commission6Pscourts to-provideroads and
brldges,~suah'court~~'tiould~ha~e
the implied
power to isaue iiiteti3bt~bå
scrip war-
rantSagainst ttidRo&d~ari~'Br~dgb~Funcl6s a
necetisarylnalclentto a oompliancewith such
imposed duty.
2. The county commls~i~~~~s ooud 18, WithOUt
authority to issue Interest-bearingsarip
warrants against the General Fund POP current
expenses.
OFFICE OF TREATT0RNE.fG-L
February 19, 1940
Hon. E. W. Rasterling
County Attorney
JePferson County
Beaumont, Texas
Dear Sir:
Opinion No. O-1703
Re; Power of conntg commis-
sioners aouFt to Issue
interest-beart- scrip
wa r r a nts l
We are pleased to reply to your letter .ofNovember 13,
1939* You therein present two questions for our consideration:
Honorable E. X. Rasterling,page 2 (O-1703)
(I) Whether or not the county
issue interest-bearingsorip against the
payment for road and bridge expenses;
(2) 'Whether OP not the county
issue interest-SeaPIngsorip against the
for cuPrent expenses.
In regard to the first question,we find no provision in
the statutes OP the Constitutionof this State which expressly
authorizes ,tbecounty commissionerscourt to issue titerest-
bearing aLrip against the Road and Bridge Fund in paymuzk for road
and bridge expenses$ howeQeP, stice the county commissio~~?scoz~5
has the expressedpower and duty to "exercisegeneral coL.:t2wl over
all roads, highways, ferrys, and bridges in the cou&y" (Art.2351,
sec. 6, PePnon's R. C. S., 1925), and ape authorieed to boPPow
money for the purpose of building roads and bPidges '(Ark.8, Sec.9,
Constitutionof Texas3 Art. 718, V. R. C. S., 1925, aed 5y virtue
of hnguage used in the case of L6S6tQP Q. tipOa (1%. c.1~;App. of
Tex., 1918), 202 S.W. 1039, aff. by Sup. Ct. of Tex. 3918, 227 S.W.
:j',"iit;" Is ouP opinion that such scrip, when.issued,would no% l.jti
.
In regard to the second question, herein aet out;,it is
the opinion of this departmentthat this question shouZ1 be answered
in the negative.
The only oases which indicate that inO;erasC-5,earirtgsorip,
issued by the county commissionerscouzt, Is valid are cases in-'
voldng the constr~ction.ofroads and bridges or "courthouses,jails
or other permaneut improvement8.1(We have found no casea hoM.isig
tk3t the co122tycommissionerscourt may issue interest-:-!sa:iz:g scrip
against the general fund in payment for the current errpezzsss of the
county.
Counties @re politlaal subdivisionsand oomporent paPts
of the state3 they have no powers or duties exoept t&se whioh are.
expressedby Iaw OP which may be clearly imp3ied. Robertson v.
Breedlove, 61 Tear.316; Edwards County v. Jenn'ings,33 S.W. 585*
affixmod 35 S. W. 1053. It is also well establishedt&t the grazt
of powers to aounties arc usu.allg strictly constrned. stratto2
v. Commissionem Oourt, 137 9. W. 1170.
In the aases implying that interest-bearingscrip is QSIid,
It will be found 'thatthe courts place paPtlculaF emphasis zppon'Sub-
sections 6 and 7 of Article 2351, Vernon's Revised CiviI Statukes,
1925, which Article provides in part!
%ash commIssIonem court ahallr . . .
- -
Honorable E. W, Essterling,page 3 (o-1703)
"6. EXOY2iSe general oontrol OQ~P 611 so&as, highways,
ferrys and bridges in the county.
"7. Provide and keep in repair aourthouses,jails, and
all necessary public build+*a."
The power to issue interest-bearingscrip is but a part of
the power to carry out these express powers granted by"Artlcle 2351,
supra. As was said by Judge Phillips in the case of Lasatar Q.
Lopes, 217 S. Ii. 373, 376:
11. . .
This authority (issuing interest-bearingwarrants)
where it was necessary for the county to use its credit for the
purpose, was but a part 02 the power reposed in those courts to
lay out and establishthe roads, and prooeeaea, as~.well,from
their duty to establishthem by comtmcting them as durably
as possible within the cotunty's
resources~or.limits of taxi-
ation. It was a means for executing~thegeneral power ex-
pressly~grantea,a lawful mea.usbecause appropriateto that
end." (Perentheticalinsertionours.)
There is no express grant of authority to thencommissioners
court giving it the power to prOQide SOP interest on scrip issued
against the gsneral fund of ths county for payment of ourrant expen-
ses. Furthermore, the Legislatureas yet has not deemedit advisable
to enact a statute PrOQidbkg that such~warrantsshall baar interest
It is to be noted that the first case holding lntcrrst-laearing
warrants valid was handed down in 1883. The dsclsion soholding is
styled San Patricia County Q. KsTlsae, 58 Tex. 243. This case was
aeciaea under Article 1229 of Paschsl's Digest, which Article was
different Tram our present statute, an& it only held that the
county commissionerscourt Dad the power to Issue interest-bearing
scrip warrants which eQidmCed the debts created in building a
courthouse and jail. Then in 1887, just four years afterthe ae-
cision of San Patriclo County Q. MoC3mec the Senate aefsiwted House
Bill No. 216 by a large QO~BJ. This was An Act . . . to rem:;@
the payment 05 interest on re isterecia&aims agaLnst counties.
HouseJourna 1 1887, PP. 53, 1$~~373~ 390; Samate Journal 1887, PP*
403, 558, An attempt-to enact such legislationwould'evidenaethe
fact that interest could not be paid on sorip issued against the
general runa for current expenses,and tha rejeabiwn of such pro&
posed enactmentwould indicate tbat the Leglslaturwaid not approve
of legislationwhlch,would authorise such interest-bearingscrlp.
In the absence of an express power to the oommissioners
court to issue interest-bearingsarip warrants against the general
funa in payment of current expense, and the further fact that no
Texas court has passed on the question, the appliaaticn of the rule
that grants of Dower to oounties are striotly conaxrmed appears
Honorable E. W. Basterling,page 4 (O-1703)
logical and leads us to the aon0lusion-thata commiasio32i~scm2t
is without authority to issue interest-bearingscrip warraz:-.s
against the gmeral funa in payment of cwrent expenses. S~CChhas
been the consistent opinion of this department. To supper';t?is
last statement,we quote from parts of previous aepdkm.hd
opinions.
The first opinion was writtam August 22, 1887, &.Ang
the administrationof Attorney General James 5. Hogg. Vbl, &O,
Attorney Gensralqs Letter Book, pe 602. We quote fxm pa-: of t:;s't
opinion as followsr
"The case of San Patrice Co. v. McClane is the oQ-
one in which it Is held that the county had t;zeright to
Issue intereatIngbearing scrip, and there the court re-
stricted the right to that class of indebtednessincuzed
in making public Improvementsrequired of them to be made.
The decision was upon a statute which was in operation
before the adoption (of) our present constitution,a~& ~i-~
gave peculiar significan0eand importance to certain la3+
uage in Art. 1229 Pasch. Dig. which is not to'5a found ti
our present statute. There bring no~erpress authority given
by the statute to issue interestingbear%* scrip, the case
of Robertson vs. Rreadldva may be consideredas settling t&s
question agaiast the implied power to do so. In conclusion
will state that at the last session of ,thelegislature a
bill was introduceda~tbwrlsix@ counties to Issue intereat-
ing bearing scrip but the same was aafeatsd by a large
vote."
Next we quote from an opinion of this department datsd
February, 1892, which is signed by Hon. C. A. CPaPbms~~ ti?'~ox%sy
Gae~al bf Texas. Vol. 14, A%&?my General's Opinions, pa 317.
To-ur letter of the 1l.Y~instant is received.
'%U ~ClOSO 8 COlry of 6 piece Of'scrip iSSU@d July 5th,
1887 by Ohildress County to Gee. D. Barnard & Oo. for station-
ery (Wbloh Is part of the CWEPCBltexpenses of the county),
payable out of the general aounty fund OP third class, which
by an express order of the oomm1ssioners~court endorsed
thereon draws 10s from October 4th 1887, and ask if fhe said
court was authorlsea to obligate the county to pay such in-
terest. The ruling of this department,as shown by copies
of letters enclosed, is in substance and effect that In
issuing scrip' in the usual manner and for the cursext ex-
penses of the o.ounty, .the sommissioners~aourts am not
authorizedto provide for the payment of l.nte??estit T&ls rule
Is based upon the wholesome principal that these pourts'are of
limited jwisaiOti0n~ that their powers and ad+ am spaelf-
ically defined by law and that they may not lawfully exercise
. -
Honorable E. W. Easter&lng,page 5 (O-1703)
such atiare not ao defined. A atrlnga~t conatmmt%on shoald
be given the implied power:to oountiea. Robe&son v. Breed-
love, 61 Tex. 324. Our statutes upon this subject nowhes‘d
delegate to these oourts the authority exaoiaed in the aaae
subnilttedby you, and the Legislaturehe+ eiuphat.iaally
de-
ollned to maat that auah warrauta shall bear interest by
defeating a bLl1 lntroduoedby &. Browning. Hmae JOUST.
1887, pp. 53, 145, 373, 390. Senate Jour.: 1887, pp. 403,
558.
“Under auah otieumatanaes,rememberiagalso that r.ur;h
authority would be both ~erous and fruitful of debt and
taxation, unleaa the Supreme Uourt baa expreaalg and un-
equivoaallyao held, the authority'aisuldbe dmaied. Rex% and
exaeptLonslcaaea dotemIned by tit&Court ahmuld not be made
the gemral rule. As heretoforeatatad, the statutes do not
oonfeFthe power exeroiaed In the oaae presented by you, nor
has the Supreme Court decided the preelae’acLae,‘~or,
ln IQ
judgment, laid down any gemral m1.e neasaaari~~ deolalve of
the question.”
The third oplnio~ to w&ah attention is dIrected la a
conference opinion OS this department-aQned b Xon. 8. F. Loosmy,
Attortiey Qbneral of Texas, and by W. J. Tommend; Aaai8ta%it Attornuy
GenePal, dated Novembs~ 8, 1917. Vol. 50, Attomq Qeneral’a Opin-
ions,p. 200 i This aonfrenae oplni6n approve8 the oplnfon 6f
Attorney General Culberaon,aupra, and ia quotlag the language of
that opfnion which we have set out above, holda:
“The ruling of this Department is, in substance and
effect, that in laaulag scrip in the usual manner and for the
aurrent expenaea of the aounty the aommlaslonara1 court is
not authorized to provide for the payment of interest.”
The laat opinion of this department whLch we woiild
mention, relating to this question, la dated August 9, 1937, and
signed by Hon. Scott Gainsa. Vol, 377# Attorney Oexm?alla Letter
optiionaasp. 736, Nr. Gabsa wrote a very short and concise opinion
and said in part:
II this depar%imenthas oonsia%~tly held that
the county ~okniaaioneracourt was without authority to
allow and pay Interest on ordIz%arycounty warrant8 OP scrip
issued In payment of ament expraeseae o e’
Honorable E. W. Eaaterling,page 6 (o-1703)
For all of tkb reasons state&, particularlyin tkat Y&O
court kas passed on the seoond question herein se% out; and alnce
the L&glslaturekaa declined to enact that;euch,warras.ts,sha~l;bear
interest,and the further reaaom that It has been the con~~ste&
opinion of thla departmenttkat tkw oounty commiai$lOsre~s 0-t
has no authority to Issue titereat-bearingsorlp against th6
general'fundfor ament exp(IoIsea, it Is conoluded by this depart-
ment that such power does not exist.
In your letter you refer to the aaae of Davfa v. E!uz%ey,
58, Tex. 364. This opinion la inadequatelyrepor%&, and Lt is
difficult to detemlne juat what the actual facts wsre$ kowewm9
thPs uaae is not authority fog tke proposition t'aa':
cou~5;gaom-
miasionera courts are a&korleed to Issue intcsraat-3earf 8crl.p'
againat the general fund In payment for current expe3888. Afh,lsp
holding that the dommlaalone~soour+tdid not kave a&aorP:.g to
issue Interest-beartigscrip in paymepeh,for crarre32e*m8e93 MY.
Culberaon, in his opinicna,aupra, wrote aa followar
"In support of tke oodxt-aryview two cad88 am S%%CK?by
you from the 58 Texas Repor3s. The,flrat (SW Pat,-falo
County v. l4aOlane,58 T&x. 2437) 1s suffleient,Sy expla&.edb:gt%
..mp of Attorney General Eo hslretoforeref&?ed to. eta?&"
latter la Davis v. Bz~ey, 5f Texas 364. It will be obaemdd,
however;.tbati3atkla aaae tke aommieblonera'cot& praatically
undertook to oall in and lde~tlf'y by reglatratlonall aarip
issued prior to April 18th 1876, when the pi?e#e~tCti~atitntlon
took effect, amI rhen a &Wf'emm3 rate of tsrat¶om $Faaauthor-
ized (Conat.A.&. VIII See. '9).and the ootactaodracted fop
the 'poatponems& of this lMiebtie&esaby agree- to pay
interest as a considerationfos tke delay.' ThFa case, mtwe-
over# is a pec?nliaroB3. The facts are not fnlXy ?ap~r%eci
and it la not clear w'katwas the cha??act@~of t:Ee1??9e%iat?-
nom or upon wk~t gpouz6 dke &3cl.iaioa waa put bg t5e cm.>.
This being tzae, it akoeal&statbe ex:-l;endedbeyaM. the point
act;Uallydeo~d@d and aapecLal'Ly when to do ao worm..,ib,is
believed, violate the apfpft of our laws ~elat- to $kia
'3tc3ject.In bll canes ti whLoh tsotnnty debts are evfde~ccsdby
scrip or warpants, our statu-ba governing county f%anaes~
contemplate either that money is in the treasury to dfacherge
the obligation OF that the holder ~111 await payme?? tbongh
the preeoi4bedmethods of taxation.
"Rev. Stats; Arts. 961 et seq.
"Chapmanv. Douglas Co. 107 U.S. 364."
Honorable E. W. Easterling, page 7 (o-1703)
The conference opinion of this department signed by
B. F. Looney, Attorney General of Texas, and by W. J. Townsend,
Assistant Attorney General, supra, adopted the last quoted portion
of Attorney @enoral Culberson's opinion, in holding that Davis v.
Burney was not authority for the contraryview, and added:
"If there Is no money in the treasury with which to
satisfy the scrip, the statutes on county finances and.tax-
atlon clearly show that the holdermust abide the collection
of taxes and other moneys which are set apart for the payment
of such indebtedness. Under the law, these claims become
due when there Is money in the treasury to pay them, collected
in the manner prescribed,'and the courts are powerless to
contract that they shall fall due at an earlier time and
obligate the counties to pay Interest 'for the use, forbear-
ance or detention thereof;' besides, the payment of interest
on such reg1stere.dscrip or warrants is the appropriation
of money upon a claim not provided for by a pre-existing law,
and Is prohibited by Section 44, Article 3 of our State'
Constitution.'
This last quotation also is substantially the ssme~language
as was used by Attorney Qeneral Culberson in his opinion.
With further reference to the case of Davis v. Burney,
supra~,we quote from an opinion of this department, dated September
28, 1935, signed by Effle Wilson-Waldron and Victor W. ,Bouldln,,
both Assistant Attorney Qenerals. Vol. 367, Attorney General's
Letters, p. 578:
"In the early aase of Davis v. Burneg, 58 Tex. 364, a
commissioner for the Supreme Court held that a county has
this power by implication, citing as authority the case of
San Patrlclo County v. McClane, 58 Tex. 243. This latter
case involved the issuance of time obligations for the con-
struction of permanent improvements. In the Davis case which,
in our opinion, is Ill considered and In ao far as we know
has never been followed by the Supreme Court, the court winds
up Its opinion with this observation:
"'And If it should be conceded that this conclusion
Is wrong, then from the manner In which the various item8
of county taxes were levied by the court, the tax complained
of as Illegal was susceptible of being readily distinguished
from the legal tax, and therefore the appellant, in any event,
could only recover the amount of the Illegal tax paid by him
to the appellee.'
Honorable E. W. Essterllng,page 8 (O-1703)
"The reason annou?aaedby the Supreme Courk ln the uase
of Imater v. Lopxz, 217,S.Y. 373, for the lrsuame by.&he
aounty of time warrants for permanent improvementsla that
the very nature of the improvementsare such that they ii&e
not ordinary Eurrent expenses and must necessarIly'be pa:d
for out of the acoumlated revenue of future yeam, the
burden b&lng too mch for one year. This argvjlient is Mm
best reason we aan conoeive for the holding that cuY?emt
ez&enses-shouldbe paid out 0,fthe $ument revenue an& not
charged against future generations.
This last opinion quoted from has been adopted by tkls
departmmt, as is evldenaedby a conferenae oplnton dated Bw9lr;'er
1, 1939, Attorney General's Opinion No..O-1659.
"~ As has be& pointed out, this department has coas1stezztl.y'
~h&ld'tbatthe county commissionerscourts are not authorlsed to
lssue~lnterest-bearlng scrip agizlnrtthe general fund li%paymexxt.-
far ourr6nt expenses. Until the LeglslatPreenacts a law bpe@ifl-
;ballygranting such authoSty, or tit11 the aourta bold h,batsuch
authoFlty does exist, we are oonstralnedto follow this l+%e~of
6pihlons of this departmentbecause 'it 1s the policy of t'als
department to overrule an opinion written by a prior ai3misLls~~ablrxi
only.'lnthe lnstanaewhere a re-examlma%lonof thenquestirra con-
vlnaeisus that the prior opinion Is clearly w-* (Attorney
Genaral'a Conference Oplnlon HO. O-1659, supra,.).
AlTORI?EYGRtI~LOF
_. TEXAS
By /e/ Walter R. Koab
WalteFB. Koah
Assistant
i3y/a/ Harry Sbuford
Harry Sbufor?d
~HStpbp
This opinion baa been considered ln aonferemae,approved,
ana ordered reaoraed.