TEEIGATIY~RNEY GENERAL
OF TEXAS
Grover Sellers AUSTIN I~.TEXAR
Hon. G. A. Neal Opinion No. O-6183
County Auditor
Ellis County Re: Right of county to recover back
Waxahachie, Texas excess salaries paid to County Attor-
ney.
Dear Mr. Neal:
In your letter of August 24, 1944, you propound the
following question for an opinion with respect to the above
subject matter:
“Under an opinion of the Attorney General’s
Department of several years ago, we paid a salary
of $5500.00 to the District Attorney, but after we
had paid our District Attorney for Fourteen months
salary at $5500.00 per year, the Supreme Court
ruled that we had no District Attorney, but County
Attorney, that his salary was $4250.00 per year.
This finds that we have overpaid the last Attorney
$1500.00. Does the law require the Auditor shall
hold this amount out of his salary until paid, as
it does in other cases due the County?”
You are respectfully advised it is the opinion of
this department that you, as Auditor, are not authorized to
withhold any,sum from the amount due to a County Attorney as
salary to reimburse the county for an over-payment previously
made to such officer.
The principle of law underlying this rule is that
where there has been a payment of money by one to another un-
der a mutual mistake of law, the payment being voluntary, there
can be no recovery back.
Chief Justice Roberts said in an early case:
“When money is paid under a mutual mistake of
law, the mistake of law, in and of itself, is no
ground for recovering it back. A11 persons are
equally presumed to know the law, and in such case
both parties are equally at fault, and equally
innocent of wrong done. To admit ignorance of law
to be legally recognized as a fact sufficient in
itself to pervert the will of the parties doing the
. -
Hon. G. A. Neal, page 2 (o-6183)
act, so that it should be said and held that the will
did not concur with the act done, thereby relieving
him from the responsibility for and the consequences
of the act, would render the administration of the law
impracticable; and hence the rule 1s founded upon a
political necessity as well as upon public policy.“--
Galveston County vI Gorham, 49 Tex. at p* 303U
See also, Limestone County v. Robbins, 38 S.W.(2) 581.
In the quite recent case of Stegall, Sheriff, v. Mc-
Lennan County, 144 S.W. (2) 1111, following and quoting the Old
Alcalde, Justice Tire said in affirming a judgment:
“We think the directed verdict must be sustained
on two grounds. First of all, the plaintiff’s cause of
action as pleaded, as well as the facts introduced to
support same, shows that the fees in question collected
by him from the state and accounted by him to said
county were done solely as the result of a mistake of
law. As we view the matter, there was no mistake of
fact. That is to say, the sheriff rendered the service
that he claimed to have rendered on each of the warrants
for which payment was made to him by the state, and his
charge to the state therefor and collection of the items
so charged was a mistake of law. It was likewise a mfs-
take of law when he took such sums into c,onsideration
in his accounting to and with defendant county. It ap-
pears that our courts have uniformly held that an action
does not lie in such cases. Limestone County v. Robbins,
120 Tex. 341, 38 s.w.2d 580, point p0 582; Gfiliaft~ V*
Alford, 69 Tex. 267, 6 S.W. 757; Taylor v. Hall, 71 Tex.
213, 216, 9 S.W. 141. We think the rule in Texas is:
‘When money is paid under a mutual mistake of law 9 the
mistake of law, in and of itself, is no ground for re-
covering it back. All persons are equally presumed to
know the law, and in such case both parties are equally
at fault, and equally innocent of wrong done. To admit
ignorance of law to be legally recognized as a fact suf-
ficient in itself to pervert the will of the parties
doing the act, so that it should be said and held that
the will did not concur with the act done, thereby re-
lieving him from the responsibility for and the conse-
quences of the act, would render the administration of
the law impracticable; and hence the rule is founded
upon a political necessity, as well as upon public pol-
icya ’ Galveston County v. Gorham, 49 Tex. 279, point
page 303 -It
The Supreme Court dismissed the application--correct
judgment.
Hon. G. A. Neal, page 3 (0-6183)
There is appended to the case of Chrysler Light & P.
Co. v. Belfield, (N.D.) 224 N.W. 871, 63 A.L.R, at p. 1354, a
valuable annotation on the application of this rule to pay-
ments made by governmental authorities. It is there said:
“The general rule that money paid under a mistake
of law, rather than one of fact, cannot be recovered back,
has been applied in many cases to payments made to priv-
ate individuals or concerns by governmental authority,
most of the courts being unwilling to make any exceptions
in such a case.”
Some exceptions follow , among which the annotator has
listed Cameron County v. Fox, 2. S.W.(2) 433.
An examination of that case will show, however, that
it is not an exception at all. It is easily distinguishable
from the rule we are discussing, in this, that the right of the
county there recognized to recover from the County Assessor a
sum of money paid to cover the premium on the Assessor’s offi-
cial bond, was allowed upon the specific ground that the Commis-
sioners’ Court in the first place had no authority--jurisdiction--
to pay out money upon any such item. The Coamissionerst Court,
therefore, was not acting as officers of the county, in contem-
plation of law, for they had exceeded their powers under the
statute, and assumed to act with respect to such matter, and to
pay out the county’s money without any authority of law what-
soever. This is made clear in the opinion which says:
ltWe think the rule invoked cannot be applied to the
action of the Commissioners t Court in allowing this claim,
for the reason that the statute under which the same was
allowed has no application to Cameron County, unless its
total taxable valuations are in excess of $30,000,000.00.
Unless the conditions stated in the statute existed in
Cameron County, the Commissioners’ Court was wholly lack-
ing in power or authority to allow such claim. ***
~~Notwithstanding the payment to defendant in error
was voluntarily made, the same being without lawful author-
ity, the amount so paid may be recovered in an action by
the county.”
Very truly yours
APPROVEDSEP 22, 1944 ATTORNEYGENERALOF TEXAS
/s’ Grover I Sellers By /s/ Ocie Speer
ATTORNEYGENERALOF TFZAS Ocie Spe er , Assistant
APPROVED: OPINION COMMITTEE
BY: BWB, CHAIRMAN
OS-Hi :wb