THE 

## ATBXB&EY GE~EBAL UD)F TEXAS
**AUSTIN, T-R**  **18711**

Hon. Ned 0. Wallace AssistantDistrict Attorney Conroe, Texas Dear Sir: OpinionNo. o-1014 Re: Can Independent School Dir&riot Board award a contract fop the purchasesof material to be bought from a member?
Your request’

for an opinion bn the question as ia herein stated has been receivedby this offdce.
Your letter reads in part a8 follows: “Question

: Under our laws governing Independent School Mstrlcts, can the School Board award a contract for the purchase of material to ,be bought from one of the members of the Board who Is regularly engaged in the selling of eaid material?” : We quote from Texas Jurisprudence, ‘Vol. 37, page 864, as follows1 “Schooldistrictsare quasi public corporation. It is said by the courts, particularly with inference to Independent districts,that they are of the same general characteras municipal corporations; in other words, ‘quasimunicipal corporations,

f~ which~ derive their powers by delegationfrom the State., They are state agencies, erected and employed for the purpose of administering the state’s system of public schools.” Love vs. City of Dallas, 40 SW 2nd 20; Thompsonvs. Elmo Ind. School Dist., 

## 269 SW 868.
As is the rule generally, Xhe trustees of independentdistricts possess only the powers expresslyconferredby law or, necessarily Implied from the powers conferred. Originally,the statute Article 2758, R.C.S. granted to trustees of Independentdistricts the same authority,as regards to the 6stabllshment and malnten- ,and.e of schools, that is conferredupon the governingbodi& of incorporatedcities and towns; and in determiningthe authorityi of such board the courts have applied the same rule as applied to municiljal

corporations. As amendad,’ the statutes merely give the authorityconferredby law upon inaepen’dent school districte.Hon. Ned G. Wallace, Page 2 O-1014

We quote from Texas Jurisprudence, Vol. 37, page 943, a8 follows:

“A quasi pub110 corporation,such as a school district, which owes special duties to the public,may not enter into any contract that is not expresaly.authorlzed by law.... An independentdistrict is a municipality within the meaning of the constitutional provision (Art. 3, Sec. 53) providing that "The Legislatureshall have no power to grant, or to authorizeany county or municipalauthority to grant,

.. ..norpay, nor authorize the payment of, any claim created against any county or municipalityof the State, under’any agreementor contract,made without authorityof law."' The members of a board of an independentschool districtare elected public officersand the constitution and statutes prohibitvarious officers deainnatedtherein from being interstedin certain DUbliC contracts. &tracts in which the a personal interest,and contracts interest in any official act to be trary to public policy and void. officerwho made them may-have giving an officer a personal done by him are clearly conIn Vol. 44, Corpus Jurls, page,%, we find the followingrule:
"It la the general rule that municipal contracts In which officers or employeesof the city have a personalpecuniary Interestare void."
We quote from Corpus Jurls, Vol. 56, page 485.as follows: r:
% some jurlsdlotlona atatutes'provlde

that a member of a school board or a school officer cannot/onbehalf of the school district or other local school organizationenter Into a contract In which.he has an individualinterest,and
.~ that In such case the contract is void. Aside from express /statutoryenactment,such a contract is against public policy, and In some jurisdictionsit is held that a contract so entered into is void, but in other jurladictlona such contractsare merely ,voldable, and~are binding when properly ratified."
In the,caae of Royce Ind. School'Diat. vs. Reinhardt, 159 SW 1010, the Court of Civil Appeals for the Dallas, Districtheld that since the board of trustees is a creature of the statutes that It has only such powers as are conferredupon it and such implied powera a8 are necessary, to execute such 'express powers. yh; department

held in a conferenceopinion In Rook 50, page 411, : *\*
. .

,

Hon. Ned G. Wallace, Page 3, O-1014 ‘I

“A contraat for -thesale of supplies.to ~a State Normal School made by a corpoI$tlon,the Presidentand General Manager of which ie Presidentof the State Normal School Board of Regents Is contrary to p’ubllc policy and void. “Statutes’

prohibitingofficialsfrom cont&atLng on behalf of the State~with themeslvesare but declaratoryof the common law; “That a member .oP

an official ‘board

did’ not casts

his vote In, :favor of’

letting the contr&t to a corporationIn which he was a 8tdckholder would not relieve the transactionfrom the operationof the rule.”
We quote from Storey on Agenc.y, Sec.- 211, a’s

follows:
“An agentto sell cannot become the purchaser,thie. principal is believed to pervade both the civil and common law jurisprudence; ”
In di.scuaslng

agreementspending to officialaorruptlonor injury to the public, Elliotls~Commentaries on the Law of Contracta, ,,Vol. 2; Sec. 706, states the rule in this-language as follows: “Agreements

which t.end

to’ official corruptionor Injury of the public servicemay not be entered Into either directly with the official or with a third person who is to bring improper lnfkaence to bear upon such official. The courts will unheaitatlqly pronounce illegal and void, and being contrary to public policy, those contract8entered into by an officer or agent of the public which naturally tend to induce suah officer oragent to become remiss in-his duty + to the public. Nor 3.8 it necessary for the officer or:agent to bind himself to violate his duties to the public in order to bring such an agreementwithin ti)e operationof the rule. Any agreementby which he’placeshlmaelf or is placed in a positionwhich 5.e inconeietent~with

his duties to the public and ha8 a tendency to induce hlm to Violate such duties, is clearly illegal’

and void.

w The following section deal&g,wkh intereatof a public official is in part as followa: ‘tinder this principal,contracts ‘forservices or mateHa In which public officershave an IndividualInterest,are prohibited. Independently’of any statute or,

precedent, upon the general,prlncipal OS law and morality, a member of an offlcial,board

cannot contraotwith the boo@ of which he la a member.’ Davideonvs. Gllford Company, 152 N.C. ‘3436; State vs. EWindell, 156 Ind. 648.Hon. Net3 0. Wallace, Page 16,04014

We quote from the case of Cheney vs. Unroe, 166 Ind.; 550, a8 follows: “It is a well ~established and salutarydoctrine,that he who Is entrustedwith the business of others cannot be allowed to make such buslness~an object of pecuniaryprofit to himself. This rule 40s~ n,o? depend .r?n

reasoriing

.technlcal

In Its character,**and** la not local in Its application. It ia based on principalsof reason, of morality and of public policy. It has its foundation1n:the very ?nnstltution of our nature for It has authoritatlvely’~b‘een.~declared that & man cannot serv@ two masters, aMi& recognizedand enforcedwherever a regulated system of j.urieprudence prevails.

”
‘Inthe case of the City of Fort Wayne vs.~Rosenthal, 74 Ind. 156, it was hel.4

that an employmentby a board of health of one of its members to vaccinatepupils in a public school is void. The court said:
“As agent, he cannot contractwith himself personklly. He
. cannot buy what he Is employed to sell. If employed to procure a aervlce to be done, he cannot~hlre himself to do it. ~~;t~prlne $8 generallyap@llcableto’prlvateagents and

* but to public offioere it applieswith greater force, &d sound policies require that there be no relaxation of its stringencyin any case which comes within Its reason.,”

me reports abound in cases’ based u&n i&atutes prohibiting officialsbecoming Interestedin contractswith the state. Statutes of this character, however, are nothing more than the adoption of the common law rule to the effect that one &cannot in his official capacity deal with himself as an individual. In the case of Smith ve. Albany; 61 M &@, the$.New York Court of Appeals in discuaslng this. rule said:
“It 18 unlawful for a member of any common counsel of,any city in this state to become a contractor,under my contract authorizedby the common counsel, and authorizingsuch contractsto be dehlarddvoid at the instance of the city, has not wrought a change in th6 rule referred to; it is, so far as it goes, elmply dei?laratory of the law as it exl,ated PXWriOUS to the paaoage of the act of 1843.” The Supreme Court of Texas dlscuaslngthe rule In Wills vs. Abbey, 27 Tex. 203, saying: “Publicpolicies required thBt the offiicers chosen to locate and survey the public lando kil’&?uld not be permitted to
... epeculs;te.them,

or to acquire Interest in them, which would present to such officers the temptatlon~to take advantage’ofHon. Ned 0. Wallace, Page 5, O-1014

the information

which their offlclal*posltions enable them to acquire+ to the detriment 6f the holders of certificates generally.
We quote from 9 Cyc. 485 as follows:
‘A people can haire no higher public Interest,except the preservation

of their liberties,than Integrityand the administration

of their governmentand all of Its departmerits. It Is thereforea prlncfpalof the CommOn law that it will not lend its aid to enforcementof the contract to do an act which tends to corrupt or contaminate, by Improper and sinister influences,the Integrityof our social or political lnstltutlons. Public officers should act from high consideration of public duty, and hence every agreement whose tendency or object is to sully the purity or miaQad the judgment of those to whom the highest trust la confided is condemnedby the courts. The officer may be an executive, a&ninistr&tive, legislativeor judlcdal officer. The principal is the same in either case.”
In view of the foregoinga:thoritiea,you are respectfully advised that It is the opinion of this departmentthat the board OS an independentschool district cannot award a contract for the purchase of material to be bought from a ~member of the board.. Trusting that the foregoing answers your inquiry,we remain Very truly yours ATTORNEY GENERAL OF TEXAS By a/ Ardellwllliama

Ardell Wllllams AW:AW Assistant APPROVED JULY 10, 1939 a/ W. F. .Moore FIRST ASSISTANT ATTORNEYGENERAL Approved Osinion Committee By RWF, Chairman