;-.

.

**OFFICE OF**  **THE**

Honorable II.

A. Hodges County Auditor WIlliamsonCounty Georgetown,

Texas
Dear Sir: **ATTORNEY GENERAL**  OF **TEXAS AUSTIN** 

**, /** 

cent date reque above stated an as follows: of your letter of redepartmentupon the quote from your letter

ed to you for an opinand several of the Rules K. Doak of Taylor, Texas, r of Births and Deaths by ealth and approvedby the

the City Clerk of s Registrar. The ty with Ei'populathrough June, his bill each amount due him
1135 births and deaths ime he registered for a total consideration of $566.50. Dr. Doak has submittedto the Commissiohers Court of WilliamsonCounty a bill for $566.50,under date of August 26, 1943, and a certifiedcopy from Dr. W. A. Davis, State Registrar of Vital Statistics, certifyingthe number of births and deaths for each month from June, 1941, through June, 1943. This IsHonorable ,H. A. Hodges,page 22

the first demandmade by Dr. Doak for the payment of these Birth and Death Certificates over the period from June 17, 1941, through June, 1943.
"Dr. Doak, at the end of ea,ch month, from June, 1941,~through

June, 1943, submitted his bill to the City of T@lor and this bill was paid promptlyby the City of Taylor. "The city of Taylor does not have any ordinance providingfor the Clerk or Secretary for the City of Ta lor to perform the duties of Registrar. In June, 19 f1, the City Clerk of Taylor reflsed to act as local Registrara,nd the State Board of Health, with the approval of the Mayor, appointedDr. ,Doak as the 1Local Registrar.
"Dr. Doak has been paid by the City in full and is now requestingthe County to pay him for the same Certificates

for which the City has already paid him. It is the understanding between Dr. Doak a.nd the City of Taylor that If the County pays Dr. Doak the $566.50 he will endorse the check to the City and the money will be depositedto the credit of the City of Taylor. It is further to be observed that Dr. Doak in performingthe duties of Local Registrarhas each month, from June 17, 1941, through June, 1943, send a copy of the Birth or Death Certificatesto the County Clerk for recordingas providedby 1a.w. “The two questionswhich I would like for **YOU to**  answer are:
"'Is WilliamsonCounty, under the above statement of facts, liable to Dr. E. K. Doak the Local Registrar, duly.appointed by the City of Taylor~, for Birth and Death Certificates, preparedby him and forwarded to the County Clerk of WilliamsonCounty from June 17, 1941, through June, 19431' "Under the above statementOf facts, is Wllllamson County liable to the City of Taylor for the Certlficateswhich the City of Taylor paid Dr. Doak for recordingduring the period from June 17, 1941, through June, 1943?~"HonorableH. A. Hodges, page 3

Rule 53a of Article 4477,Vernon’s Texas Civil Statutes, providesas follows:

“That each Local Registrar shall be,paid the sum of Fifty (50) Cents for each birth and death certificateproperly and completely made out a.nd

registered.wlthhim, and correctlyrecorded and promptly returnedby him to the State Bureau of Vital Statistics, as requiredby this Act, unless such Local Registrar shall be acting as Registrar of Birth and Deaths in an incorporated city where the compensation of the RegSstrar is otherwisefixed by city ordinance.
“The State Registrar shall annually certify to the, County Commissioners Court orCountyAuditor, as the case may be, the number of birth and death certi- :ficates filed by each Local Registrarat the rate fixed,herein,

and provided that the State Registrar ’ may renders

such statements

monthly or quarterly,at the discretionof the State Board .of Health, and the Commissioners

Court or County Auditor, as the case may be, shall audit such statementsand the County ’ Treasurer shall peg such fees as are approvedby the Commissioners

Court or the County Auditor, at the time such statement Is issued.
“And provided further, thatthe Justice of the Peace, City Clerk or Secretary,and the appointed Local Registrar shall submit to the Commissioners Court or County Auditor, as the case may be, a true s.nd accurate copy of each birth and death certificate filed with him, and such copies shallbear his, file date and signatureand shall be deposited in the County Clerk% office. The County Clerk shall be paid for indexingand preserving such records, such compensation

as may be agreed upon by the Commlssloners Court.” This departmentin Opinion Ros. O-3874 and O-4583, copies of which are’enclosed herewith for your convenience,rendered~ its opinion as to the’properconstructiont0 be placed UPon the above quoted rule of Article 4477, supra. As pointed out in these enclosed opinions the county, In the absence of a cityHonorableH. A. Hodges,page 4

ordinanceprovidingfor compensation of these local registrars, was the political subdivisionliable for payment of the prescribed fees of such registrars.

The city of Taylor accordign to the informationfurnished us had not passed an ordinanceprovidingfor compensation of Its local registra.r. Therefore,from June, 1941, to June, 1943, the local registrar could not have legallydemanded payment of his fees from the City of Taslor and upon such a presentation

of his claim the city could have rightfullyturned itdown. The registrarcould have, however,by performing his duties in accordanceto the a~ppropriate provisionsof Article 4477, supra, lawfully demandedpayment of his claim for fees from WilliamsonCounty, since the countywas actually Indebted for the performanceof these services. The query then arises whether or not the fact the City oft Taylor did pay for the rendition of these servicesby the local registrar seeminglyout of its own volitionalters the situationin any wa.y.

The Texas courtshave held that pa.yment of an obligation by a third party, althoughwithout the debtor'srequest, if acceptedas such by the creditor,dischargesthe obligation so far as the creditor Is concerned. Holland v. De Walt, 223 3. W. 217, writ of error dismissed;General Banking and Casualty Ins. Co. v. Moseley, 174 S. W. 1031, reversed on other grounds, 110 Tex. 529, 222 S. W. 961. According to the facts furnishedus, It cannot be tenably contendedthatthe local registrardid not accept the fees from the City of Taylor in full and completepayment for the serviceshe rendered in that capacity. The registrarcou,ld not now presenthisclaim to WilliamsonCounty and contend It was due and unpaidwhen In fact he had been fully compensatedtherefor. Thus, so far as WilliamsonCounty and the local registrarare concerned,any obligationexistingbetween them has been extinguished and completely discharged.

We furtherdo not believe the City of Taylorhas any claim against WilliamsonCounty for paying these fees. As pointed out, the citY could by ordinancebe liable for these fees. The only claim the city could have would be by subrogation; that is, claim any rights the registrarma,y have had against the county. It is well settled that the doctrine of subrogation

may not be Invokedby a mere volunteerwho has paid an obligationof another without a legal obligationto do **SO**.-. .

’

.

HonorableH. A. Hodges, page 5

and an absence of compulsionor to protect an existingright. Houston v. Shear, 210 3. W. 976, 'writ of error dismissed;First National Bank and Trust Co. v. Vordeman, 188 3. w. 695, affirmed 221 S. W. 685; FederalReserve Bank of Dallas v. Smylie, 134 S. W. (26) 838. The City of Ta,ylor voluntarily

paid the local registrarwithout a legal obligationto do so, was not forced to do so by compulsion, nor to protect any existingright. In other words, the city vo)untarll~ paid the registrar in the true sense that the word 1s used.

It is thereforethe opinion of this departmentthat WilliamsonCounty is not liable to the local registrar or the City of Tagldr for re &lstratlonfees accruingbetween June 17, 1941, and June 30, 19 3, but will be liable to the local registrar for fees accruing after June 30, 1943. Very truly yours ATTORNEYGENERAL OF TEXAS

ROK:db **BY** Robert'?%%

. Assistant

Enclosures

APPROVED OCT. 5, 1943 /s/ Grover Sellers FIRST ASSISTANT ATTORNEY GENEiRAL

APPROVED OPINION COMMITTEE By /s/ B. W. B., Chairman