**.-L -** 

Bononble 5nry c. gyle County Attorney Rays county San Baroos, Texas Overruled by Opinion O-4715 ia 80 far a8 it oonfliuts

Dear Sir: OpinionNo. O-4431 Rer IsArticle 1645a-6,V.A.C.S., Constitutional,and other questions? ,,
Your.lstter requesting the opinion of this Department oa the questions-statedtherein reads as follows:

"Aots 1939, 46th Leg., Speo. L., p. 591, appearing 

## inV.A.C.S. as Art. 1646a-6,provides for a county auditor 

## in oounties having a populationof not less than 14,850 and notmore than 14,920, and povides further that suoh auditor in ciuohcountiesmay Lm paid not more than e.400. 00 psr snnwn, to be paid fraa the CountyGeneral Fund, the Jm$ Pund, the kad aad Bridge Fund, and the Permanent ImprovementFund in proportionthatthe levies for suoh fknds bear to the total salary of such auditor. Shortly afiter this act was pssed, an auditor for %ys County was ip$ointkd thereundar, qualifiedby taking the oath and giving the b&d, and his salax$ set bythe Commissionsrs' Court of 41ys'lbn+q at #2,4OO.OOper annum payable out

_ of the various funds mentioned. Such,auditorhas served in aooordanoe therewith tothis date.

'The above mentioned act of the Legislature appears to thiswriter to be a local and special clawin.violatioa of Section 56 of Article III of the Constitution. Many of your opinions have held simflar laws toba inviolation of said~seotionof the'constitution,tonit: 721, 043, 1004, 1020, 1561, 1966, 1957, 1966; 2224, 2611, 3O40, 3417, 3662, 3314, 3321, 3722, 3654, 3662, 1699, and 4206. Many of these opinions have b3an supportedwith the holding of the Supreme Court in Miller V. El Paso County, 150 S.W. (2d) 1000.Honorable Henry C. gyls, Page 2 (O-4431)

"At the time the abovqmentioaed aot of the Legislature
was passed, Hays County had a population of 14,915, and was the only oounty in Texas between 14,650 end 14,920, accordingto the federal oensus of 1930. Aooording to the 1940 federal oensus, the population of Rays County is 15,349. It thereforeappears that Haya County no longer comesunder the provisions of said bat. This seems to be supportedby at least two of your opinions, 2961 aud 3123.

* "Too, S. B. 119, Chapter 601,p. 1331, General and Speoial uws of the 47th Leg., Sac. 1 and Sec. 2 of suah act appaaring as 4&s. 1646 and 1646 in Vernon'sAnnotated Texas Statutes Service, January 1942 CumulativePamphlet, being an aot providing for the appointmentof auditors and the fixing of the salaries by the District Judge, appears to have repealed the above mentianed special act applying to Hays County. (Sec. 3 of said ~S.B.119.) The effectivedate of said S.B. 119 was July 9, 1941,, pe 1333, Gen. and Speo. Laws of the 47th Lag. Although the District Judge for Hays County appointed an auditor for Hays County long prior to July 9, 1941,with a salary of $2,400.00 fixed by the C!emmissioaers',Court, as.seeminglyallowed by the abovementioned special rot ~for.HaysCounty,land-suchDistriot Judge hasmade no appointment of such auditor for Hays County since July 9, 1941, ngr has such judgemade prrg orderswith reference to the salary of suoh~auditqrsinas July 9, 1941. l'herefore,~ri:.viB.af your opinion8 3070 and 3604, it appears t&this write&that ths,Co&q Auditor of Rays County cannot leg&lly be paidmore than.#l25.00 for,eaohmillion dollars,
or major portion-thereof,of the assessedvpluation, the annual salary to be computed fra the lrst approved tax rolls, payable out of the General Funds of the county. Art. 1645.

"&der the above statement of Pa&s and the laws applicablethereto, it is indicated clearlyby your opinion 3351 that the CountyAuditor of Hays County should refund to Rays County wl& he has been paid ia exoess oP,the amount thatwould be alioi&him undsi 41%. 1646 R.C.S. for 1926, from the date he receivedknowledge.that said special a& applying to Hays C&&y onlj at the time of passagema8 unoonstitutional,or &oh refund bcmade from the date of the official preliminary publicationof the 1940 federal oensus, or suah refundbe made frcm July 9, 1941. It follows that saidHays County Auditor and his bondsmenI$uld be liable to Hays Counti for those amounts in.excess of that allowed lzv Art. 1645, R.&S. for 1925, that have been paid to suoh auditornith his approval after knowledge on his part.that such excess amountswere being paid under en unconstitutional law, or hadbeen paid to him under a law whioh ao &onger,applisdto Hays County,
or paid to him under a'law that had been repealed. Art. 1649 and Art. 1641, R.C.S. The receiving of such salary in excess. . -.

Honorable Bsnry'C. Kyle, Page 3'.(0-4431)' ~~

of that allowed by m. 1645, withknowledge of the $nva,l~dity:of

the payment, appearstibe a'.sufficiant showing that su& auditor aotedmaliciously, corruptly or negligentlywithin the rule anuounoed in Welch
v. Kent, 153 S.W. (Zd) 284.

"With mfprenoe to the foregoing, Iwould appreaiate havingyour opinion in aaspQringthe following questions:

: "1.. IsActs 1939, 46th Leg., Spa. L., p. 591, appearing in V.A.C.S. as Art. 1645a-6, oonstitutional?

~,“2. With the 1940 federal oensus showing Hays coti$y to have a population of 15,349, did the above mentioned speoial act no longer apply to Hays County Pfterthe preliminarypublication of the 1940 federal census?

..~ a.
,~ '3, Should the CountyAuditor of,Hays County -fund t&the oounty all,sums of moneyreceived by him from Hays.

County as,salary during a year in exoess oft :..#125&.for e&ohmillion~dollars, ormajor portion thereof, of the.assessedvaluation~for Hays Countyaoaordiag .tothe ladt approved tax rolls,dating lmok to the date such--auditor

received notice that Acts 1939, 46th Leg., Spew. L,,~p:591, was unoonstitutional?

"4.Q the event the Auditor of %ys Countyhad
no notice tM,t suoh speoial aot was unoonstitutional, should.herefund to Hays County all suusof money received by him in a year as salary frcpn Hays County in excess of *125&O for eachmillion dollars, ormajor portion thereof; of ths assessedvaluation for Hays County aocorditig to the l&t approvedtax rolls, datingback to the dat&.of ChS~

preliminarypublioation of the 1940 -federal **C(111SUS 7** 

**. ‘** 

**.** "5. Without the presidingDistriot Judge in Hays County appointing an auditor for Hays County and fixing his salaryafter July 9, 1941, theMYeotive.date:of S. B. 119,Acts 47th Leg., should the:Auditor.of&ys County refund to the county all sums of money receivedby him as salary fromthe county in excess of theminim provided in Art. 1645bsf?re the passage~of S. B. 1190I.

. .

Honorable Henry C. Kyle, Page'4 (O-4431)

"6. In the event it shouldbe held that said auditor should refund aw of suchmoney to Hays Qunty, would such auditor and his bondsmenbe liable for such refund on proof that he knew such law to be unconstitutional and had reaeived such~exoesssums ofmoney as salary thereafter,without showing ay further acts of said auditor that he actedmalioiously, corruptly or negligently in procuring the payment to himself of suoh exoss8 of saQaryp

Article 1645a-6,Vernon's Annotated Civil Statutes,provides:

"Section 1. That from and after the effective - date of this Aot in all counties in this Stats having a populationof not less than fourteen thousand, eight hundred and fif'ty(14,850),and notmore than fourteen thousand, nine hundred and twenty (14,920),according to the last preoadingFederal Census, or any subsequent Federal Census, the Commissioners'60~1% in such counties, if they shall determine that an Auditor is a public nbcessity in the dispatch of the county business, aad shall enter an order upon the minutes of said Court, fully setting out the reaeonsand necessities for suchAuditor, and shall
muse said order to be certified to the District Judge having jurisdiction in the countieshereinabove set out, said Judge shall, if such reasons be oonsideredgood and sufficient,appoint a CountyAuditor as provided in drticle 1647 of the Revised Civil Statutes of Texas of 1925, and upon the appointmentby said Judge of suchAuditor, such Auditor shali'qualifyby taking the oath of office and giving the bond a&now provided in Article 1649 of the Revised Civil Statutes of Texas of 1926.

"Sec. 2. When the Auditor, as hereinabms.provided, shallhave qualified by taking the oath and giving the bond,
as provided in Se&ion 1 hereof, he shallbe authorizrlto perform all the duties now required of Auditors generally in countiesof this Stats, as provided in Title 24 of the Revised Civil Statutes of Texas, 1925, and amendments thereto not to exceed Two~Thousand;Four Hundred Dollars #2,400) per annum, said salary to be paid in equalmonthly installments and shall be p-aid from the County General Fund, of suoh oou&iss, the Jury Fund, the Road and Bridge Fund, the Permanedt ImprovementFund, in proportion and orithe.pero&t,~gn leviesmade for each respectiveRmd, and in proportion that such levies bear to the total salary of such Auditor.-. .

Honorable Henry C. R&la, Page 5;(0-4431)

"Sac. 3. This Aot shall be deemed ounulatiw of all gene@ provisions now authorizing the employmentof Auditors, and it is not intendend by this Aot to repeal any law, or parts of law, not in oonfliotherewith."

It. will be noted that the abovementioned statuteapplies not only to those counties in this State having a population of not less than 14,850, and not more than 14,920 inhabitants accordingto the last preceding fedsral.oensus or any subsequent federal Cdnsus. This Department has heretofore construednumerous statutes similar to the statute above quoted, and has held that such statutes am unconstitutiohaland thereforevoid. The opinions bearing the numbers enumerated in the sotand paragraphof your letter quoted above and the ease of Millerv.-El Paso County, 150 S.W. (2d) 1000, and the authoritiesmentioned therein, supportyour.contentionthat the above quoted statute is unconstitutional. Therefore,in view of the above mentioned~opinioasand the authorities cited therein, it is our,opinicnthat Article 1645a-6, supra, is unccnstitutional~andthereforevoid.

According to the 1940 federal oensus the population of Hays Countyis 16,349 inhabitants. Bs above stated,Brticls 1645a-6applies only to those aountisshaving a population of not less than 14,850~andnot more.than 14,9i~'irihabitants according to the last pmccedingfederal census or any subsequentfederal oensus. R&e the abovementioned statute (Art. 1645a-6) oonstitut&onalit would no lon&r apply to Hays Cpunty. ,’ Itethink that itwill bs~~oonvenieat to tions Runbars 3, 4, 6 and 6 together.

Article 1649,Vernonis knotated Civil consideryour quesStatutes,provides:

"The auditor shall, wit+ tnmnty days of his appc$nta@c, and boforb he enter*-upon'theduty of his,office,make a bond with twu or ore good and sufficient sumties, in the sum.: of 15000, mytble tothe oounty judge conditionedfor the faithful performance of his duties, to b approvedby the Cammibrioners~~Court. He shall also take the offioial oath end an additicnal'Rarrant inwriting, stating that he is in very way qualifiedunder the provisionsand requiremen>s,of t.his'titlei and giving fully ths positions of private.or public trust he has heretoforeheld, and the length of service under each. He shallfurther inolude in hi6 oath that he will not personally bcinterssted in a9y contra& withthe county."

Itwill be notad'that the above quoted statuterequires the countyauditor to take the usual offioial oath of offios, and also
an additionaloath,,in writing,~stactiqe; he has in everyway qualified under the provisionsand requirements of the law relative to his office,. -

Honorable Henry C. Qle, Page 6 (O&431)

the positions of public trust he has theretofore held, and the length of s6rvi~~und6r each. Bs is also required tc include in his additional oath that he will not be personally intarasted in a4y contract with the county.

It is assrpaedin your request that on6 or the other of this datds mentionadby you is the oorractdate from which to calculater6- funds dueito the oounty under the act in question. Your request raises the point as to whether a county auditorwho reoeiws a salary under
an unoonstitutionalstatute is liable therefor, alsowhether the SUXItirs on the bond of the county auditor are liable.

It is the duty of the county and distrih attorneys, upon raqusst, to give an opinion or advios,inwriting to any county or plaoinctofficer of their district or county,touohing their official dutiss;(Art. 332,V.A.C.S.) and it has b6sn tha policy of the Attorney General of Texas to 60 advise said officsrsupon such questions touohingtha public interest, or conderningtheir official duties. (Art. 4399, V.A.C.S.).

W6 'think,that in~aooordancewith our opinioa No. O-3351, whhersths provisionsof an act of the Lagislatum are 6olely to the personal aad beneficial interest of ths offioer,knowledge oa the part of th6 officer of its unconstitutionality,received through l dvio6 giG6xi':lii&bg

hii oounty or distriot attorney or fiomthe Attorney General of Texas, is sufficientto,deprive such officer of am equities and fixes the liability fromthat time onwhere illegal papmat of xalary ar6 recsived by him under the unconstitutional law.

Generally **6peaking, SUNti66**  **ar6** not liable for mowy whioh has bsanpaid to 6n officer under orders of the conrmissioners' court 6nd which under no oircumstancascould rightfullybs collected from the county. Wils suretiesar6 liable for fees or commissionswhioh ham be611 rstainedby 811

officerfin6x068s of themaxtim allowed, they **may** not be held accountable for eroesxive fess whioh have beenvoluntarily paid to him under an ordei of the wmmis6ioners' court or for w6r paymentswhich have been,made to him under an o:derwhich the **00166Ii6-** sioners' courthad no jurisdictionto make, or, again, for money which has been paid to him by his SUCO66SOr 6s fees but which in fact belong to the county. (Jeff Davis Countyv. Davis, 192 S.W. 291; IiarrisCounty ve Charlton, 245 S.W. 644; Grayson Countyv. Cooper, 211 S.W. 249; Tsx. Jr.Vol. 34, p. 577).

Judge Ccoley, in his works on oonstitutionallimitations, Volume 1, Eighth Edition, at pg6 382, says:

"Wh6n a statute is adjudged to ba unconstitutional, it is as if~it had n6wr been. Rights oannotbe built

. - ..Honorable Henry C. Kyle, **Page** 7~(O-4431)

up ,underit;~

contraotswhioh depend upon it for their considerationare void; it constitutesa protection to
no one who ha6 acted under it, and no one can be pun- ~ished.forhaving refused obedienw,to it before the decision '1~s

made. llzld

what is true of sn actvoid in tot% is true 6160 as to any part of an aot which 16 found-tobe unconstitutional,6ndwhich, oonsequently, is tc bs regardedas havingn6ver, at any time, bsbn possessed of any legal force."

The Supreme Court of Texas in Ssssumsv. Sctts, 34 Tex. 335- 350, 'didnot ccnstrnathe above authoritya6 announcing a dootrine that an unoonstitutlonallaw could be no protection to officers or-citizens, before the 66616 had been passedupon and adjudged invalid. The court in its'opiaicn said:

: ..% are not willing to endorse the proposir :'~,ticn,

in its broads& sense, that a ministerial offioer has the right and power to'decide upon ths ooastitutionalityor uncon6titutionalityof
an act paased withall the fonsali+y of'law. It istfie duty of suoh officers to execute and not to pass judgmentupon the law, and ws are of the opinion that the clerk of the diatriot court should have refused to have issued axeoution in violation of what appeared to be a valid and binding law, until the ssmd had been deolaredvoid by the tribunal properly oonstitutedfor that purpose."

In view of the foregoingauthoritie6,you are respeotfully advised that it is our opinion that the countyauditor should refund to the county all of the salary receiwd by him in 6xce66 of the amount allowed under the general law provided in Art. 1846, a6 said statute exist& when the auditorwas appointed and qualified, from and after the date the county auditorma8 advised that Article lS45a-6 1s unomstitutuicnal by the county or district attorney or the Attornsy General. It.is our further opinion that the sureties on the official bond of the oounty are not liable,but the countyauditor is personally liable for suoh 6~6 or 6x6s receivedby him a6 salary in excess of the amount authorieedby Art. 1545, supra.

In connection with the foregoing, ~6 nant to point out that the Qmmissioners' cburt of &ys Countyhad the authority by virtue of Art. 1546,V.A.C.S., to appointan auditor for the county and pay him
a salarya6 authoricedby **Art.** 1545, supra. That 16, the Commission6rs~ Court oould and should have allowed the county auditor, as compensation for his servioss as such, one hundred and twenty-five dollars for each million dollars, or major portionthereon on the assessedvaluationHonorable Henry C. Kyle, Page 9 (04431)

of the obunt~, the annual salary to be oomput6d frcmthe last ap&n-oved tax roll.

You stats in effect that thers has b66n ao procedure regardins the ap@oinheat of a countyauditor or the fixing of his salary under S. B. NO. 119,bats of the 47th Iagislature,Regular Ssssion, 1941, therefore,w6 do not deem it necessary to di6ouss this act (S. B. 119. supra) in this opinion.

bFTFmND ml 13,,1942
s/Grover Ssll6rs

PIRSTASSISTbNT ATTORNNY GENERBC Yours v*ry truly

&lWRNEY GENERAL OF TKK@ 

# w s/Ardell Williams

Ardell Williams Assistant

bpprwad Opinion C&mitt66 By EKE Chlirman