## THEAITORNEY GENERAL OF TEXAS

GROVER SEILERS AUSTXN 11. TE-

*TrORNEY GENERAL

Honorable J. C. Hamilton CountyAuditor Ector County Odessa,Texas

Dear Sir: OpinionNo. o-6418 Re: Is E&or County liable to a County Commlasionerwho was inducted into the military service for his salarywhile in themilitary aervice from October 15, 1944,"to December 31, 1944? Ana related questions.

Your request for an opinion on the above matters has been received ana carefully considered. We quote said request
as follows:

"Iam submittingherewith the followingquestions for constructionand application, to-wit:

"The facts are that the Commissioner of Precinct No. 4 of Ector County, Texas, was inducted into the Unlted StatesNavy. He did~not resign hia office as Commissionerwhen hewas Inducted. The County Judge of Ector County, Texas, after the induction of the Commissionerdeclared the -office vacant and appolnted a aucceasor to the absent Commissioner. The aucceaaor filed hla bond and otherwiseduly qualified himself to act
as Commlsaloner,and did act as such Commiaaioner from on or about the 15th day of October,A.D. 1944 to the 31st day ofDecember, A.D. 1944, at which time the term of the Commissioner expired (theCommisaioner~ of PrecinctNo'.4 who was lnducted into the Navy was not a candidate for reelection to office). The county paid the salary of the absent Commissioner for the two and onehalf months that he served to the succesao??.

"TheCommissionerwho was Inducted into the military 'service

has made demand upon the county for the payment of his salary.Honorable J. C.,Hamilton,page 2 o-6418

(1)* "I submit to you the followingquestions: Is Ector County liable to the Commissioner who was inducted into the military service for
:;;43"':g from October 15, 1944 to December 31,

If the answer to the foregoingquestion is ln'the affirmative, then, who is liable to the county for the payment of'the salary paid to the person who was appointed as successor to the Commissionerwho was inducted into the military service? (31. If the answer to the first question is in the negative, then, is the action of the inductedCommissioner for the recovery of hl~asalary against the Commissioners'Court or against his successor towhom the salarywas paid?

"I'havecarefully consideredyour OpinionNo. O-5245, and from such opinion it may be determined that the appointment of the Commissionerto succeed the Commissionerwho had been inducted into the military servicewas absolutely void and of
no effect,and that the Commissionerwho was inducted into the military servicewas entitled to the compensation incident to the office.' On page 4 of the OpinionNo. O-6245 the secondparagraph reads as follows:

"'It iswell settled that salary for compensation of an officer la incldent to the office, and not dependent upon services actually performedby such officer. It is obviously true that compensation should In no event be uald to two County Commissioners for-the same time, f'br the same precinct.' (Underscoringmine)

"Froma construction of the entire opinion It would appear that there would be no question about the payment of the compensation of the office to the Commissionerwho was inducted into the"mllitary service,but the second line of the paragraph above quoted states that compensation shouldnot be paid to two County Commiaslbners for the same time,for the same precinct, and since the county has paid the compensation once the question has arisen as to whether or not it
can be paid again.

"It would' seem that if the appolntment~ of the successorwas absolutely void then the pay-Honorable J. C.Hamilton, page 3 o-6418

ment of the salary to this suctieasor was payment to a~total stranger, so to'speak; although such paymentwas made In **gOOa** faith, and would thereby render the-Commissioner'sCourt liable for an unlawful payment. But the case~ofWelch vs. Kent, 153 S.W. 2nd 284 would dontradlct this principle where the paymentwas made In good faith.

"Your constructionand application of your Opinion No. 0-6245 under'theae circumstances would be greatly appreciated."

You are correct in your conclusion that it may be determined **from** our OpinionNo. O-6245 that the appointment of'the commissionerto suceed the commissionerwho had been inducted into ,the

military servicewas absolutely void and of no effect, and that the commissionerwho was inductedinto the military service is entitled to the compensation lncldent to the office. It is our opinion, therefore, that your first question should be, and it is, answered in the affirmative, and that E&or County Is-liable to tary service 31, 1944. the commissionerwho was inducted Into the miliforhis salary from October 15, 1944, toDecember

It graph quoted was intended to hold b$the second llne"of the paraby you from said OpinionNo. O-6245 "thatcompen-

. aatlon shbuld In no event be paid to two county commlsalonera for the same time',forthe-'sameprecinct", that the county~would notbe legally~liableto make such payments. However;'slnce Ector County has paid such salary to the commissionerappointed by the'county judgea8.a successor to the absent comml'ssioner,~' which appointmentwas absolutely void, the payment of such salary to himwas, as stated by you, payment to a total stranger, so to speak,but such pagmentwould not affect the liability of the county to pay such salary to the commisaloner legally'entltled. thereto. This might cause the county to pay such salary-twice, but itwould have its cause of action for such illegalpayment against those responsible therefor, as well as against the appointed commissionerwho received same.

As to your secondquestion,we adopt and quote the following from our Opinion No. O-4715:

“Art~icle

2340 of the Revised Civil Statutes of Texas, relative to bonds as shall be executed by County Commissioners,contains In part the following provisions:Honorable J. C. Hamilton, page 4 o-6418

0 1

. a

. * conditioned for the falthful'performance of the duties of his office, that he will pay over to his county all moneys Illegally paid to him out of county"funds; as voluntarypayments or otherwise,and that he will not'vote or give'hlsconsent to"pay out county funds except for lawful purposes.' If

. . . . . "'Under the terms of the."statute hereinabove referred to (Artlcle'2340),each commissionerwas required to execute a bona conditioned for the' TaithfBl performance of the duties'of his-'office and that he wbuld pay over to his County all moneys 'illegallypaid to him out of county funds,
as voluntarypayments or otherwise.' The law under which payments of ,salarles were made'~to the Commissioners of Hays County over and above '~ the sum of $1400.00per year being unconstituional, all sums paid to each of them In excess of said $1400.00per yearwere illegallypaid; therefore, each of said Commissioners is liable to repay such excess salaries so paid.to him,"and lt~is the. opinion of this department, and you are so advised, that each of said Commissioners is liable for all
sums paid to him over ana above the $1400.00per year provided by law.

"In further support of this conclusion,we direct your attention to thencase of Kitchens et al v. Roberts, County Treasurer, 24 S.W. (2) 464. This was a suit by the County Treasurer of Wood County to recover of a county commia'sioner aiidthe surety on his bond certain sums paid to ,saidcommissioner in excess of the amount due him under the general law. Sala sumswere demanded by and paid to said commissionerby authority of a special act of the Legislature,and the suit to recover samewas on the theory that the Legislaturewas without power to provide by said special act for the payment to a'county commissioner for his servicesas such a sum in excess of that fixedby general law. The trial court sustained this cohtention, held said special act uncohatitutionaland gave plalntlff judgment for the amourit sued for. Thlasjudgmentwas affirmed' by the Court of-CivilAppeals and application for wrlt“of errorwas refused by the Supreme Court. See alsoDuclos et al. v. Harris County, 251 S,W.Honorable J. C. Hamilton, page 5 o-6418

569, affirmed by Supreme Court, 263 S.W. 562. The case of Cameron Countyv. Fox, 2 S.W. ~(2) 433,was a suit by a county to recover from a tax collector premiums on bonds theretofore allowed to him by the commissioners court, and the Commission of Appeals held that, notwlthstanding the payment tb the tax collectorwas voluntarilymade; the amount so paid could be recovered in an action by the'~county as said paymentwas madewithout lawful authority.

"Asto the liabilltg of each IndividualCommissionerunder that part of his bona which provides 'thathewill not vote or give his consent to pay out county funds except for lawful purposes,' for the excess salaries' paid to each of the other commissioners over and above said $iqOO.OOper year,we refer you to the rules of law laid down in the case ofWelch et al. v. Kent et al., 153 S.W. (2) 284. ,Thiswas a **suit** by the County Treasurer of Jefferson County against the County Commissioners of said County to recover the amount of certain claims against the Countywhich were alleged to have been paid by said Commissioners without authority of law, and that, as to said Commissioners,their said act constituted a voting and consenting to the payment of funds and moneys out of the county funds for unlawful purposes, and that said Commlsaloneraneglected In said particulars to faithfullyperform and discharge the duties required of them. The trial court rendered judgment in plaintiff's favor, and the Court of CivilAppeals reversed and rendered said judgment
on the ground that, 'invoting "topay out such county funds," a county commissioner is not liable'when actuated by pure motlvea, but onlywhen he acts mallciouslg or corruptly, or under circumstances imputlng'maliceor corruptmotives. He Is not liable to his county for his'judicial acts, no matter how erroneous In law may be his judicialdecision, so long as he acts in good faith.'
*Therefore, it is the opinion of this department that each of said County Commissionerswould be liable for the excess salariespaid to each of the other Commissioners, In addition to the amount Individuallyreceived by him, if it can be shown that he acted mallcioualy or corruptly, orunder circumstances Imputingmalice or corrupt motive,
orwithout good faith.

. . . . ..

Honorable J. C. Hamilton, page 6 o-6418

"Article1649 of the Revised Civil Statutes of Texas gives the requirements of a bona for a County Auditor, and same is conditioned 'forthe yaithtil performance of his duties;' Article 1651 of said Statute contains In part the following: 'andhe shall see to the strict enforcement of the law governing county finances.'

"Article 1653 provides that he shall have continued access to and shall examine:all the books, accounts, reports,vouchers and other records of any officer, the otiers of the commissioners' court, relating to finances of the county, etc.
"Article1660 of said statutesprovides that all claims, bills and accounts against the county must be filed in ample time for the AuaFtor to examlne and approve same before the meetings of the commissioners'court. That no claim, bill or account shall be allowed or paid until it has been examinedand approved by the County Auditor.

"Article 1661 of said statute contains in part the followingprovision:

"'Allwarrants on the County Treasurer, exceptwarrants for jury service,amst be countersignedby the County Auditor.'

"Seealso 11 Tex. Jur., Sec. 52, p. 581.

"Therule as to when a county audltor can be held liable for payments of compensationpaid to others is laid down in the case of Welch, et al.
vs. Kent, et al., 153 S. W. (2) 284, which involves a county auditor and his successor in offlee, as well as the county commissioners, in the following language:
If 1

. . 0One condition of their oath and bond (Art. 1649, R.C.S. 1925)was that they would faithfullydischarge the duties of their office. To constitute a cause of action against a county auditor on his bond, the pleadermust allege and prove that, In the matters charged against him he actedmaliciously, corruptly or negligently, 20 C. J. S.,Counties, 1 140, p..952; these allega-Honorable J. C. Hamilton, page 7 o-6418

tlons must be made by the pleader because of the presumption of the regularity of the official acts of the county auditor.

. . . .'

"Seealso the caae.ofWade vs. Board of Com'ra. of Harmon County, 'et' al.',17 Pac. Rep. (2) 690, Supreme Court of Oklahoma.

"vnderthe statutesana rules above referred to and set out, Itwas made the duty of the county auditor tb see that no payments of salarieswere made to said county commissioners in excess of those provided for by law. Salaries havingbeen paid to the Commissioners of Hays county in excess of those provided for by law,we hold that the CountyAuditor Is liable for all such sums so paid, Insofar as he acted maliciously, oorruptly or negligently In permitting said payment to be made. It is our further opinion, however, that the same rule of good faith would apply to him as we have hereinaboveheld should apply to the County Commisaionera,

. . . . "Thegenerai rule as to when the sureties on the bond of public officials can be held liable for'the action of saidpublic officials Is laid down in the case of Jeff Davis County vs.Davis, 'et al., 192 S.W. 291, writ dismissed. This was a suit against the sheriffand the sureties on his bond to recover certain sums of money paid to said sheriff on claims presented by and allowed to him thatwere alleged to be unjust and Illegal. The trial court sustained exceptions filed. as to aald'auretleaand dismissed the said. suit as to them'; Sustaining this action, the Court of Civil Appeals held as follows:
If t

. . . . . . "'And in Heldenheimer v. Brent, 59‘Tex. 533, itwas said:

"'Tocharge the sureties on a sheriff's bond, the act complained of amst not only be onewhich he might rightfullydo as sheriff, but which must be actuallydone by him
as sberlff,under claim of right to do the act as such officer.'

"'This statement of the law la the appllcation of a rule by which the acts of a aherlffHonorable J. C. Hamilton, page

for which his sureties 8 o-6418

may be held liable
can be distinguished from those acts for which theywill not be held liable. The former are termed acts done "virtuteofficii", and the later "coloreofflcil". The dlstinction is this: 'Actsdone * virtute officii"
are when they are within the authority of the officer,but when in the doing he exercises that authority improperly, or abuses the confidencewhich the law reposes in him; whilst acts done "coloreofficli"are where they are of such nature the officegives him
no authority to do them. Gold v. Campbell 54 Tex. Civ.App. 269, 117 S.W. 463, at 466.
If I t

. . . . .
"Seealso Miller et al. vs. Foard County, et al., 59 S.W. (2) 277.

"Underthese rules it Is our opinion that the sureties on the bond of the CountyAuditor wouId be liable for the repayment of any and all aumspaid to said County~

Commissioners that the Auditor himself would be liable for the repayment of, for the reason that permitting said payments to be made to said County officialswas in violation of the terms of his bond which provided for the faithfulperformance of hisduties.' In otherwords, the acts of the CountyAuditor In approving payment of said excess salaries to said County Commissionerswas done within his authority as such officer. Ordinarily these rules would prevent the sureties on bonds of said County Commissioners from being liable for the excess sums paid to said Commissioners,since same were not paid in the performance of any official duties on the part of said Commissioners;but, In becoming sureties on the bonds of said County Commissioners, said sureties agreed that said Commissioners would 'payover to his County all moneys illegallypaid to him out of County funds,as voluntary payment or otherwise,and that hewould not vote or give his consent to pay out County funds except for lawful purposes.' This provision of saidbonds havingbeen violated and saidbonds having embraced the liability to refund said salaries
as for money unlawfully had and received from the County, we hold that the sureties on the bonds of said County Commissionersare also liable for any and all sums the Commissioners themselveswill be liable for.Honorable J. C.Hamilton, page 9 o-6418

”

...........”

Article 1928, Vernon's Annotated Civil Statutes, sets out the requirements of the bond of a county judge, one ofwhich is "thathewill not vote or give his consent to pay out county funds except for lawful purposes".

In the case of Steusoff et al. S.W. (2)643 writ refused, v. Liberty County, 34 itwas held that the judgmentsand orders of the commissioners court approving the~accounts of Steusoff,who was tax assessor of Lib~ertgCounty, for sums in
excess of the actual earnings of his officewere absolutely void, and that Liberty Countywas entitled to judgment against him for.such excess. See.also Baldwin v. Travis County, 88 S. W. 480,writ denied, and Adams v. Stephens County, 41 S.W. (2) 989, writ refused.

It Is our opinion that,under the above rules of law, the party appolntedby the county 'judge as commissioner to aucteed the county commissionerwho was inducted into the military service Is liable to Ector County for the salary receivedby him, also that the county judge, county commissionersand county auditor"of Ector County, and the sureties ou'thelr respective bonds;are liable therefor, if they acted maliciously or coraptly, or under circumstances imputingmalice or corrupt motives.

The appointed commissionerevidently executed the both requiredby Article 2340 hereinabovereferred to and, while such appointmentwas illegaland void and the sureties on said bond would not be liable for'the salary@aid to such appointed commlsslonerunder saidbond as a statutorybond, since such salarywas not receivedby saidappointed commissioner officially, therefore,was not within the conditions of such bond, it is our opinion that said suretieswould be liableunder saidbond as a common law obligation. In support of this conclusion,we direct your attention to the following:

In the case ofHummel et al. v.' Del Qreco, 90 S.W. 339, there was involved a cause of action againstthe principal and sureties on a bond couditioned on the principal therein paying to the obligee the amount of a legatee in a will on the establishmentof saidwill. The execution of the bond, as the principal intended,defeated the obligee'sright to have the estate.admlnisteredand the legacy paid in'process of administration, saidbond havingbeen given voluntarily and in lieu of administration. In passing thereon, the court held as follows:

"Theprobate of thewill Ipso facto est,ablished the legacy bequeathed as a chargeupon the.

Honorable J. C. Hamilton, page 10 o-6418

estate of the testator. The bond suedupon was executed to secureplaintiff, as legatee, in its payment, in event the'willwas'probated, thereby fasteningupon appellants the absolute liability to appelleeupon the happening of such event. Its purposewas to defeat the application of appellee,
as legatee to have an administrator of the estate of decedent appointedwith the will annexed, and enable the principal in the bond, appellant Chas. F. A. Hummel, to obtain end-holdpossession of its assets free from charge of administration,thus preventing eppellee from exercising her right to collect her legacy through the medium of the probate court. This purpose havingbeen attained by appellantHummel, and such right or appellee defeated,we can perceive no reasonwhy appellants shouldnot be bound by the court as they bound themselvesby their bond.
II

. . . . .
"Let itbe conceded that the bond suedupon was not a statutorybond, and that it shouldnot have effected the purpose forwhich Itwas executed; 'i.e.

defeated the legatee's right to have the estate of decedent edministered'uponand her legacy paid in process of administration. Itwas neverthelessa common-lawbond, end through it appellants' (Hummel)purposewas accomplished, end appellee's right defeated. The bond having had this effect, and being a valid and binding common-law obligation,appellantsmust be held to discharge the obligation Imposedupon themselvesby its terms.

. . . . ."

In the case of Maddox et al. v. Hollums, 241 S.W. 1053, the courtwas consideringa questionwhere the defendant in a sequestrationproceeding had given e bond in order to hold possession of certainproperty pending litigation,but only one 'suretysigned saidbond. However, the court held said bond good
es a common-law obligation,holding thereon as follows:

"Thereplevy bond in the instant suit Is In the levy languageprescribed and has all the requirements of the above articles of the statute, with the exception that it is signedby but one surety,C.C. McCarthy, the appellant. The prlncipal question presentedby the assignments is that ofwhether OP not the court erred in holding, In effect, that the bond suedupon, while not goodHonorable J. C. Hamilton, page 11 o-6418

es a statutorybond, was, under the facts of this case, good and enforceableas a common-law obligetlon. This appellant surety specially insists that he is not legally liable thereon at all, as the bond is in terms purely a statutorybond, requiredby law to be executedby two or 'moresureties, and is not binding on'one surety when executed by him alone. The practical end general difference between a 'common-lawbond' end a 'statutorybond' Is that the latter conforms to all the requirements of the statute,while the formerdoes not. It is quite generally held that where "the terms and conditions' of the bond substantiallydeviate from 'theconditions'prescribed by a statute; orwhere a bond Is voluntarilygiven when notat all requiredby law, it Isdeemed a common-lawend not a statutorybond. .,. . . .'I

The bond given by the appointed commissionerand his suretieshaving been a voluntary one and having had the effect to cause to be paid to such'commi'ssloner salarywhich would not have otherwisebeen paid to him, he and said sureties shouldbe held liableunder its terms and be required to pey~to Ector County the salary illegallypald to him outof'the funds belonging to such county.

Article 1709 of Vernon's Annotated Civil Statutes Is
as follows:

"The county treasurer shall recelve,all moneys belonging to the county fromwhatever
source they may be derived, and pay and apply the same as requiredby law,~ in suchmanner es the commissioners court of his county may reyi;e ;;t4direct. (Acts,,1846, p. 338; G.L. vol. f * ; P.D. 1097.)

Article 1713 of said statutes Is es follow,s:

"Thecounty treasurer shall not pay any money out of the county treasury except in pursuance of a certiflcete orwarrant from some officer authorizedby law to issue the same; and, if'such treasurer shall have any doubt of the legality or propriety of any order,decree, certificate orwarrant presented to him for payment, he shell not pay the same,but shell make report thereof to the commissionerscourt for their considerationand direction. (P,D. 1101.)'.

Honorable J. C.Hamilton, page 12 o-6418

In the case of McDonald et al., School Trustees, 'v. Farmer, County Treasurer, et al., 56 S.W. 555, the court had under consideration the question of the llabllity of a county treasurer for approvingwarrants payable to the county assessor which allowed said county assessor illegal commissions. In passingupon sald question, the court held es follows:

"As to the treasurer, he paid then amount ordered by the commissioners' courtupon a warrant drawn by proper authority. Countywarrants are prima facie evidence of an existing end's matured aebt. Leach v. Wilson~Co., 62,TeX. 332;Rev. St. arts. 876, 852. They are prima facie valid but open to defenses. 1Dill. Run. Corp. 1 1 487, 502. It Is the duty of the county treasurer to receive all inoneys

belonging to the county, end to pay and apply the same as requiredby law, in such inenner as the commissioners'court of his county may direct. Rev. St. art. 926. Mandamuswill ordinarily lie to compel him to pay e cmmty warrant; but on account of the discretion vested in him by article 930 of the Revised Statutes, where he has any doubt of the legality or propriety of any order, decree, certiflcate;or warrant presented"to him for payment,not to pay the same,but to make report thereof to the commissioners'court for their considerationand direction, it has been held in this state that mandamuswill not lie to compel the treasurer to pay a warrant, the payment ofwhich has been prohibitedby that court. Walker
v. Barnard, 8 Tex. Civ. App, 17, 27 S.W. 726. In this decision the court of civil appeals for the Fourth district refused to follow Johnson v, Campbell, 39 Tex. 83, which holds that the treasurer has no discretion, but must peg a warrant drawn in accordancewith law, and that mandamus will lie to compel him to do so. If, after report to the commissioners'court; it shoulddirect the claim to be'paid, itmay be',atleast questionable if'the treasurer has any furtherdismetion
as to payment. When the treasurerhas no reason to doubt the legality or the propriety of a warrants presented to him for payment, it is his duty to pay it; and, having paid it in the discharge of his duty, he ought not to be held liable to the fur&out ofwhich it has been paid. He'mst, however, act in good faith, and exercise care and prudence to make no payment fop which the county
or schooldistrict should not be held liable. The treasurerwas presumed to know the law, --that the assessorwas only entitled to a commissionHonorable J. C. Hamilton, page 13 o-6418

of 1 per cent. of,the taxes levied and assessed; but it does not appear'that he knewwhat amount had been levied,norwhat the assessed value of, the property In the district was, and it seems, also, that the warrant paid embraced other items. Whether or not he shouldbe protected in the paymentwould be a fact to be determined by his
care and good faith. He should take care to see that the warrant has been drawn by the proper euthority, and in accordancewith law. 'He cannot have credit for a warrant issued for an Illegal claim, If he has reason to belleve that the demand forwhich Ityes issuedwas In fact illegal. 9

. . . . . . Applying the rules of law laid down in this opinion to the present situation, the county treasurer of Ector County, and the sureties on his bond, are also liable for the salary paid to said appointed county commissioner,unless said county treasurer acted in good'faith and had no reason to believe that the payment of said salarywas illegal.

Your first question havingbeen answered ih the affirmative,an answer to your third question is not called for under the wording of your request,but, if the inducted county commissioner should have to file suit to.'recover' his salary,' such suitshouldbe against Ector County end not against the eppointed commissioner to whom the salarywas paid.

Trusting that this satisfactorilyanswers your Inquiry,
we remain
Very truly yours,

ATTORNEY GENERAL OF TEXAS

JWB:mp:wc By s/ Jas. W. Bassett Jas. W, Bassett Assistant

APPROVED MAR 15, 1945 s/Carl& C. Ashley FIRST ASSISTANT ATTORNEY GENERAL
Approved Opinlon CommitteeBy s/BwB Chairman