On Petition to Rehear.
Appellees, County Commissioners and County Judge, and appellant, the taxpayers, have filed petitions to rehear.
The Commissioners and County Judge by their petition to rehear insist most earnestly that this Court erred in holding that there is no authority to appropriate, or, therefore, to include in the 1955 budget items to pay or reimburse each of the three County Commissioners and *286the County Judge for expenses incurred in operating an antomobile while attending official duties.
In support of the insistence thus renewed on the petition to rehear, these petitioners first assert this:
“We submit that in the absence of an express statute permitting the county to pay travel expenses in connection with the performance of regular county business, the county still has the power to pay for travel which is incidental and necessary to the performance of the legitimate county business. ’ ’
Considered on principle, the decisions of this State are directly contrary, as this Court views it, to that assertion. In State ex rel. Vance v. Dixie Portland Cement Company, 151 Tenn. 53, 60, 267 S. W. 595, 597, it is said:
“It is a settled policy of the state, determined by statute and judicial decree, that public officers can receive no fees or costs except as expressly authorized by law. ’ ’
To the same effect is State v. True, 116 Tenn. 294, 311, 95 S. W. 1028; Shelby County v. Memphis Abstract Co., 140 Tenn. 74, 84, 203 S. W. 339, L. R. A. 1918E, 939; Henry v. Grainger County, 154 Tenn. 576, 578, 200 S. W. 2; Stone v. Town of Crossville, 187 Tenn. 19, 24, 212 S. W. (2d) 678; and many others which might be cited. There are no decisions to the contrary.
This petition refers to Peay v. Nolan, 157 Tenn. 222, 7 S. W. (2d) 815, 60 A. L. R. 408, wherein it is held that the reasonable expenses of public officials in the performance of official duties properly may be paid out of public funds, in addition to the compensation received by these officials. The petition overlooks an important fact distinguishing that case from the one at bar. That distinction is that Peay v. Nolan is dealing with the power *287of the Legislature with, reference to expenses of State employees. The case at bar deals with the authority and liability of counties. As emphasized in Burnett v. Maloney, 97 Tenn. 697, 712-713, 37 S. W. 689, 693, 34 L. R. A. 541:
“Counties owe their creation to the statutes, and the statutes confer on them all the powers which they possess, prescribe all the duties they owe, and impress all the liabilities to which they are subject.”
In addition to the general principles above stated, which this Court considers conclusive against the afore-stated insistence, all precedent in this State, in so far as this Court can find, rejects the assertion that without a statute an appropriation to public officials may be made to “pay for traveling which is incidental and necessary to the performance of the legitimate county business.”
In Hope v. Hamilton County, 101 Tenn. 325, 332, 47 S. W. 487, 488, in dealing with a kindred question, this Court said:
“The theory [and spirit] of all these laws is that in rendering services which should be done by members of these bodies, pertaining to their official position, they act simply in discharge of duties for which the statute provides compensation.”
Whitthorne v. Turner, 155 Tenn. 303, 308, 293 S. W. 147, 149, directly rules the case at bar contrary to petitioners’ insistence. In that case this Court observed that:
“The duty to visit schools, necessitating travel, is a duty imposed upon defendant as superintendent of schools ’ ’ of Maury County.
“* * * In performing this duty the defendant acted as superintendent, for which he was compen*288sated by the salary fixed by the county court * * #.”
The holding in Whitthorne v. Turner, supra, is in keeping with the public policy of this State as always heretofore practiced. That such is the case was noticed in State ex rel. Vance v. Dixie Portland Cement Company, 151 Tenn. 53, 60, 267 S. W. 595, hereinbefore quoted. Likewise, it is in conformity with the general view expressed by the Courts, according to the text of 67 C. J. S., Officers, Sec. 91, p. 329, as follows:
“The right of an officer to compensation for expenses incurred by him in the performance of an official duty must be found in a provision of the constitution or a statute conferring it either directly or by necessary implication, and the officer cannot recover compensation additional to the compensation fixed by statute for such expenses.”
The petition says, however, that authority for the appropriation is found in the following provision of Section 5 of Chapter 183 of the Private Acts of 1937:
“It shall be the duty of the Commissioner of Finance, acting as Purchasing Agent, to purchase all the supplies, materials or properties of every kind and character, including insurance on county property, used or consumed by the county or any of its officers, agents, employees, boards or commissions, including all county officers * * * all materials and supplies or equipment used in connection with county highways, roads and bridges, the County Board of Commissioners and all other officials, Boards or Commissions of said county where any such supplies, materials or properties are paid for out of public funds belonging to said county.”
In some States a liberal construction is given to statutes with reference to the power of counties. In Tennessee *289the rule of strict construction applies. Burnett v. Maloney, supra, 97 Tenn. at page 716, 37 S. W. 689. With this rule in mind, Section 5 above quoted will be condensed so as to simplify. solution of the question as to whether this section gives Knox County the authority to pay, in addition to their salaries, the expenses incurred by its officials in pérforming their duties. Condensed, but not so as to take it :out of context, this Section 5 invoked by the petitioners -is as follows:
“It shall be the-duty of the commissioner of finance, •• acting as. purchasing agent, to purchase all materials and supplies and equipment * * * where any such supplies are paid for out of public funds belonging to said County.”
It is clear then that this provision only purports to authorize the purchasing agent to procure those materials and supplies that are by law to be paid for with county funds. If ■■there is no statute authorizing a particular item to be so paid for, then this provision does' not authorize the purchasing agent to procure and pay for it. There is no such statute in so far- as the Court is aware. Nor does the petition mention one, other than the aforesaid Section 5.
It is next insisted that this Court erred in holding that no appropriation is authorized by the item of $500' in the budget which is purported to be for “official travel.” The taxpayer’s are entitled to know whether an item for which they are required to pay a tax is legal. The recitation in the budget that this item is for “official travel” does not convey that information. The Court is satisfied that its previous ruling on the question is correct.
After holding that the items in the 1955 budget for operating expenses of a county car incident to travel in the performance of-the official duties of the County Judge *290and each of the three County Commissioners called for an illegal appropriation, this Court proceeded to discuss the taxpayers’ prayer for recovery in favor of the County of such sums as had been expended in previous years either directly or by way of reimbursement to these officials for expenses so incurred.
- After observing that “perhaps” the principle re-enunciated in the Hobbs case, 194 Tenn. 323, 250 S. W. (2d) 549, is applicable, it was said that “At any rate, taking all circumstances into consideration” this Court is of the opinion that the prayer for recovery should be disallowed. However, in so concluding it was observed that the question thus made is “so close as to have given this Court much concern.”
The petition of the taxpayers to rehear seeks a reconsideration of the Court’s holding on this question. That petition asserts that this holding is not supported by the principle which controls the Hobbs case, and that the principle of estoppel does not apply.
In the Hobbs case the payments sought to be recovered were paid under a statute which expressly and explicitly directed such payments. That statute turned out to he unconstitutional, but there was applied, following precedent, the principle that a statute is presumed to be legal until the Court holds otherwise, and that these payments were made while that presumption existed.
But there is no statute, constitutional or unconstitutional, authorizing payment of the expenses for operating the county cars in the instant case. Hence, the taxpayers ’ petition to rehear is correct in its assertion that the principle applied'in the Hobbs case on this score is not applicable.
¡ This Court is keenly aware of obstacles in the way of adjudging that these county officials should not be made *291to account for connty fnnds so expended. Nevertheless, on the whole, it remains of the opinion that perhaps the more equitable conclusion is that under the circumstances these officials should not be called upon to account for these expenditures.
“Allowances for expenses are something different from salary.” 43 American Jurisprudence, Section 368, page 154. And, whatever may be the differences between the Quarterly Court and these commissioners as to the 1955 budget, there is no allegation of a disagreement prior thereto. The situation we have is that the County Commissioners proposed by inserting it in the budget that the Quarterly Court agree to the payment of the expenses of operating county cars when used by these officials in the performance of their official duties. The Quarterly Court so agreed. Though illegal, it was plausible, and in keeping with a practice often pursued under ■ statutory authority, whereby it is recognized as not being an inequitable practice. Acting under that agreement, the cars were used for the county’s benefit. The contract has been executed, and an accounting on items of this ■ character will be difficult. We feel, therefore, that the more equitable action under all the circumstances peculiar to this case is to deny the right of the County to recover for the sums so expended. We understood counsel for these taxpayers, in the oral argument in this case, to express doubt as to the legal right of the County to restitution.
Both petitions to rehear will be denied.