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Honorable J. D. Looneg

CountyAuditor Bowle County Boston, Texas Dear Sir: OpinionNo. O-4266 Re: How should the wages of men working by themonth for the various county commlsslonersbe set? Your letter of recent date requesting the opinion of this department on the above statedquestion reads as. fbllows: '%ow should thewages of nien working by. the month for the various commlsslonersbe set, should it be made by each com+ssioner as be see'sfit 6Fshould it be made by an order of the.Commr..Courtand placed in theminutes of the Court." Artlcl~e2351,Vernon's Annotated Civil Statutes provides inpart:

"Fzch commissioners court shall:

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. . . . “3. Lay out and establish, change and discontinuepublic roads and highways.



### “4.’ Build bridges and keep them in repair. “5


### . Appoint road overseers,andapportion hands. “6


### . Exercise general control over all roads,' highways, ferries and bridges In their counties.

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. . . . . 'Title116, Chapters~ l-15, inclusive,Vernon's Annotated Civil Statutes and amendments thereto containsmany. statuteswith reference to roads, bridges and ferries'and the powers and duties of the Commissioners' Courts relative thereto.Honorable 3.D. ~LooneJi, page 2' ~0-4266

Bowie County hasa population of 50,244 Inhabitants accoralng to the.1940Federal census. Article 6762, Vernon.'~ Annotated Civil Statutesprovides In part:

"Inall counties of this State, as shown by the preceedingFedera1 census to contain as many as 40,000 Inhabitants,the members of the Commissioners'Court shall be ex offlcld road commissioners of their respective precincts; and under the direction of the Commlsslonsrs’ Court shall have charge of the teams, tools and machinery belonging to the County and placed in their hands by said court. . .'I Article 6763, Vernon's Annotated ClvFl Statutesprovides in part:

If

. . . Sala Courtmay employ any hands and teams on the public roads-under such-regulations and for suchprices as they may deem best." Article as follows: 6769, Vernon's Annotated Civil Statutes reads

"Theprovisions of this subdivision shallbe cumulativeof all general laws on the subject of roads,when not in conflict therewith, but in the case of such,confllctthis law shall control. This law shallnot be In operation In any county unless the Commissioners ICourt thereof In their judgmentmay deem It advisable, and then only by an order of said Courtwhen all of the members are present,made at some regular term thereof, accepting the provisions hereof. Such order shall be entered on the minutes of said Court, and shall not be void forwant of form, but a substantial complianceof the provisions hereof shall be sufficient." There 1s nothing In your letter that would Indicate that the Commissioners'Court of Bowie County has accepted the provisions of the above mentioned statuteswhich are eommanly referred to as the optional road law. In the absence of any statement to the contrary, for the purposes of this opinion,we asstie that the Commissioners' Court of Bowle County has not accepted the provlslons of the optional road law and are in no way operating under the same.

Bowie County, as well as & number of other counties, is exempted frbm certain provisions of Chapter 3, Title 116, Vernon's Annotated Civil Statutes, relative to road superin-” -

Honorable J. D. Looney, page 3 o-4266

tendents at-id

theirduties as contained under the heading of Road Sup.eri~tendents,~subdivision 3 of Chapter 3, Title 116, supra. Article 6740, Vernon's Annotated Civil Statutesprovides for the expenditureof the road and bridge fund of the various dountles and Article 6741'provides:

"TheCommidslonersCourtmay make and enforce all reasonable and necessary rules and orders for the Qorklng and repairing of public roads, and to utilize the labor to b~e.used and money expended thereon, riotin conflictwith the laws of this State. Said court may purchase or hire all necessary road machinery, tools, or teams, and hire such~laboras may be needed in addition to the .laborrequired of citizens to build or repair the roads." It ls'stated in Texas Jurisprudence,Volt 11, p. 632: "Theauthority of the com&sloners' cc&t as a &vernlng body of a county to make contracts in itsbehalf is strictly 1Fmlted to that conferred either expressly or by fair or necessary implication by the constitutlbnand laws of the State.
. , . . 'The. commissioners'court must have authority of law for its contract, and, if the authority has been.given, a reasonable. construction of itwill be given to effect its purpose-~ "A contract or agreementmade by a county is valid and binding.only if made under the authority of a resolutldn br order auig passed at a meeting of the commissioners' court and entered upon the minutes of such meeting.
.No rights can be acquired as against the co&ty by agreementswith the Individuals composing the commissioners' court. The members of the court are not agents with general authority to bind the public; they are public officialswho have been granted certain powers which must be exercised in the way prescribed by the statute. f,
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. . It is further stated In Texas Jurisprudence,Vol. 11, P. 635: "The commissioners'court, in entering into a contract on behalf of the county, may act throughHonorable J. D. Looney; page 4 ~0-4266

an agent:.appointed by it;and the contract thus made by a duly appointed agent Is binding upon the county. In a suit Involvingthe contract it is necessary to show that the agreement is one which the agent was authorized to make, or that the county,with knowledge of the terms of the agreement , ratlfled It after it was maae.

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. . "Authorityto bind the countyby coIltract must come'from the commissioners'court acting as a body; it is not sufficient that the indlvldual commissionersmay have refrained from objecting to the assumption of such authority by the alleged agent. . . .' In view of the foregoingauthorities,you are respectfullyadvised that~ltIs the opinion of this department that the wages or compensation ofmen working by the month for the various County Commissioners shouldbe set or made under the authority of's resolution or order duly passed at a meeting of the CommissionersICourt and.enteredupon the minutes 6f such meeting.

Trusting that the foregoing fully answers your lnquiry,we are Yours very truly ATTORNEY GmERAL OF TEXAS

By s/ArdellWilliams Ardell Williams Assistant AW:mp:wc
APPROTW)DEC lgj 1941 s/GroverSellers FIRST ASSISTANT ATTORNEYGENERAL Approved Opinion CommitteeBy s/BWB Chairman