# TEEIG ATIY~RNEY GENERAL OFTEXAS

Grover Sellers AUSTIN I~.TEXAR

Hon. G. A.Neal County Auditor Ellis County Waxahachie, Texas

Dear Mr. Neal: Opinion No. O-6183

Re: Right of county to recover back

excess salaries paid to County Attorney.

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, wepaid 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 wehad no District Attorney, but County Attorney, that his salary was $4250.00 per year. This finds that wehave 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 aCounty Attorney as salary to reimburse the county for an over-payment previously madeto such officer.

Theprinciple of law underlying this 

### rule is that where there has been apayment of money by one to another under amutual mistake of law, the payment being voluntary, there

can be no recovery back.

Chief Justice Roberts said in an early case:

“Whenmoney is paid under amutual mistake of law, the mistake of law, in and of itself, is no ground for recovering it back. A11persons are equally presumed to know the law, and in such case both parties are equally at fault, and equally innocent of wrong done. Toadmit ignorance of law to be legally recognized as afact 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 andheld 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; andhence the rule 1s founded upon a political necessity as well as upon public policy.“-- Galveston County vI Gorham, 49Tex. at p* 303U

See also, Limestone County v. Robbins, 38S.W.(2) 

### 581.

In the quite recent case of Stegall, Sheriff, v. McLennan County, 144 S.W. (2) 1111, following and quoting the Old Alcalde, Justice Tire said in affirming ajudgment:

“Wethink the directed verdict must be sustained
ontwo 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 himfrom the state and accounted by himto said county were done solely as the result of amistake of law. Asweview the matter, there was nomistake 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 madeto himby the state, andhis charge to the state therefor and collection of the items
so charged was amistake of law. It was likewise amfstake of lawwhenhe took such sumsinto c,onsideration in his accounting to andwith defendant county. It appears that our courts have uniformly held that an action does not lie in such cases. Limestone County v. Robbins, 120 Tex. 341, 

### 38s.w.2d 

### 580, point p0 

### 582; Gfiliaft~ **V*** Alford, 69Tex. 267, 6S.W. 757; Taylor v. Hall, 71 Tex. 213, 216, 9S.W. 141. Wethink the rule in Texas is:

‘When money is paid under amutual mistake of law9the mistake of law, in and of itself, is no ground for recovering it back. All persons are equally presumed to knowthe law, and in such case both parties are equally at fault, and equally innocent of wrong done. Toadmit ignorance of law to be legally recognized as afact sufficient 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 relieving him from the responsibility for and the consequences of the act, would render the administration of the law impracticable; andhence the rule is founded upon apolitical necessity, as well as upon public policya ’ Galveston County v. Gorham, 49Tex. 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 payments madeby governmental authorities. It is there said:

“The general rule that money paid under amistake of law, rather than one of fact, cannot be recovered back, has been applied in manycases to payments madeto private individuals or concerns by governmental authority, most of the courts being unwilling to makeany exceptions in such a case.”

Someexceptions follow

, amongwhich the annotator has listed Cameron County v. Fox, 2.S.W.(2) 

### 433.

Anexamination 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 sumof money paid to cover the premium on the Assessor’s official bond, was allowed upon the specific ground that the Commissioners’ Court in the first place had no authority--jurisdiction-- to pay out money upon any such item. TheCoamissionerst Court, therefore, was not acting as officers of the county, in contemplation of law, for they had exceeded their powers under the statute, and assumed to act with respect to such matter, andto pay out the county’s moneywithout any authority of lawwhatsoever. This is madeclear in the opinion which says:

ltWethink 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 samewas 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 waswholly lacking in power or authority to allow such claim. ***

was ity, the

APPROVED /s’ Grover ATTORNEY APPROVED: BY: OS-Hi:wb ~~Notwithstanding the payment to defendant in error

voluntarily made, the samebeing without lawful authorthe amount so paid maybe recovered in anaction by county.” Very truly yours SEP22, 1944 ISellers GENERAL

OFTFZAS OPINIONCOMMITTEE BWB,CHAIRMAN ATTORNEY GENERAL

OFTEXAS By/s/ Ocie Speer Ocie Speer, Assistant