On Motion for Rehearing
Very able briefs have been filed by respondent and by the Attorney General as amicus curiae in support of the motion for rehearing. They compel a reconsideration of the second question in the case, namely, the right of the County to enforce repayment from the respondent Assessor-Collector of the sums paid to him under the provisions of the statute which we hold unconstitutional. Section 57, Article 1436-1, Penal Code.
The cases relied on by petitioner on this point and cited in our original opinion do not satisfactorily support the contention of petitioner that the County is entitled to recover. While the opinion in Greer v. Hunt County, Tex.Com.App.,1923, 249 S.W. 831, does hold that a county official would be bound to reimburse the County for any excess above his lawful fees and could not defeat recovery, the case was not really concerned with that question. The point was whether the acceptance by the officer of a salary less than that to which he was entitled, precluded him from thereafter demanding the balance.. Cameron County v. Fox, Tex.Com.App., 1928, 2 S.W.2d 433 had to do with a valid act which provided that a county with a certain total taxable valuation should pay the premiums on the Tax Collector’s bond. The Commissioners Court paid the premium and, subsequently concluding that the payment was without lawful authority, brought suit in the name of the County to recover from the Tax Collector the amount so paid. Although the payment was voluntarily made, it being without lawful authority, the county was permitted to recover. Payment by the Commissioners Court resulted from a mistaken interpretation of a valid statute or rather a mistake of fact as to whether or not the total taxable valuation equaled the amount required by the statute.
While there seems to be no case from our, jurisdiction squarely passing upon the point raised, there are some that do speak with considerable persuasion. In the early case of Sessums v. Botts, 34 Tex. 335, cited with approval in Travelers’ Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007-1024, 96 A.L.R. 802, the court in discussing the effect of a statute held to be unconstitutional says in substance that a citizen, choosing to disregard a law under the belief that it is unconstitutional, does so at his peril; that it is the better policy to obey the law until its constitutionality has been determined; that this being the duty of the citizen he should then be protected in that obedience. The court further refuses to approve of the right of the ministerial officer to pass upon the constitutionality of a legislative act, and expressly holds that it is the duty of the officer to execute and not to pass judgment upon the law. While as a general rule a law held unconstitutional is void from the beginning and was never valid and enforceable at any time, nevertheless those obeying the law before its invalidity was determined are not to be punished, but on the contrary their rights are to be protected. To the same effect is the more recent opinion in Sharber v. Florence, 131 Tex. 341, 115 S.W.2d 604.
In United States v. Realty Company, 163 U.S. 427, 16 S.Ct. 1120, 1125, 41 L.Ed. 215, under a somewhat analogous set of facts in *516holding that parties acting under a law thereafter held unconstitutional were entitled to recover certain sugar bounties, the court held:
“ * * * But in such a case as this, knowledge of the invalidity of the law in advance of any authoritative declaration to that effect will not be imputed to those who are acting under its provisions, and receiving the benefits provided by its terms. . These parties cannot be held bound, upon the question of equitable or moral consideration, to know what no one else actually knew, and what no one could know 'prior to the determination by some judicial tribunal that the law was unconstitutional. Although it should finally turn out that the law is invalid, and is so pronounced, yet, during all the time of its operation, as has been stated, all the officers of the government united in treating it as a valid act. No court had determined to the contrary. ' It was a question at least admitting of argument. * * *”
There are authoritative decisions from other jurisdictions squarely denying the right of the county to recover under such circumstances.
In Roberts v. Roane County, 160 Tenn. 109, 23 S.W,2d 239 where the county sought recovery from the sheriff of salary payments paid under an act later held to be unconstitutional, recovery was denied upon the theory that while an unconstitutional statute does not confer any rights, duties or obligations and is in legal contemplation inoperative ab initio .nonetheless the parties may so deal with each other relying upon the validity of the statute that neither may invoke the aid of the courts to undo what they have done.
The Supreme Court of Tennessee in State for Use and Benefit of Lawrence Co. v. Hobbs, 194 Tenn. 323, 250 S.W.2d 549, in denying the county’s right to recover salary payments to county clerk under similar circumstances expressly reaffirmed the holding in Roberts v. Roane. See also State v. Clements, 217 Ala. 685, 117 So. 296; Village of Dolton v. Harms, 327 Ill.App. 107, 63 N.E.2d 785; Fahey v. Town of Bloomington, 268 Ill. 386, 109 N.E. 292.
The rule that unconstitutional law is a nullity is not applied to work hardship and impose liability on a public official who in performance of duty‘has acted in good faith relying on the validity of a statute before it has been declared invalid. 16 C.J.S., Constitutional Law, § 101c; Golden v. Thompson, 194 Miss. 241, 11 So.2d 906; O’Shields v. Caldwell, 207 S.C. 194, 35 S.E.2d 184; Allen v. Holbrook, 103 Utah 319, 135 P.2d 242.
Equitable rights may be acquired though the statute is thereafter declared unconstitutional. Flournoy v. First National Bank of Shreveport, 1941, 197 La., 1067, 3 So.2d 244; Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329; Missouri Utilities Co. v. City of California, D.C., 8 F.Supp. 454, appeal dismissed 8 Cir., 79 F.2d 1003; Miller v. Dunn, 72 Cal. 462, 14 P. 27.
Section 57, Article 1436-1, Penal Code, was adopted in its present form in 1951 by the 52nd Legislature. Before the Commissioners Court paid to respondent any compensation thus provided for, the opinion of the Attorney General was solicited and given. That opinion in a full discussion held the provision to be constitutional and that therefore payment to the respondent was in all things proper and legal.
The Legislature imposed certain additional duties upon the Tax Collector and clearly intended for him to be compensated therefor. The error was in fixing, the manner of paying that compensation. The services have been performed by the Tax Collector. A part of the compensation allowed by the statute was paid to him by the Commissioners Court. All parties acted in good faith and we think it would be inequitable under the circumstances here to require the respondent to repay the compensation so paid to him.
*517We therefore hold that the County is not entitled to recover from the respondent the compensation which had been paid him in reliance upon the validity of the law and on the advice of the Attorney General.
It is to be understood that our holding on the unconstitutionality of the Act is confined solely to that portion of Section 57, that refers to “salary payments” to tax assessors-collectors in counties of more than 20,000 population. Sharber v. Florence, supra.
The motion for rehearing is therefore granted and our opinion heretofore rendered is modified to the extent set forth above.
WALKER, J., not sitting.