.-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: Opinion No. O-4431 

Rer Is Article 1645a-6, V.A.C.S., 

Constitutional, and other 

questions? ,, 

Your.lstter requesting the opinion of this Department oa the 

questions-stated therein reads as follows: 

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

in V.A.C.S. as Art. 1646a-6, provides for a county auditor 

in oounties having a population of not less than 14,850 

and not more than 14,920, and povides further that suoh 

auditor in ciuoh counties may Lm paid not more than e.400. 

00 psr snnwn, to be paid fraa the County General Fund, the 

Jm$ Pund, the kad aad Bridge Fund, and the Permanent 

Improvement Fund in proportion that the 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, qualified by taking the oath and 

giving the b&d, and his salax$ set bythe Commissionsrs' 

Court of 41ys'lbn+q at #2,4OO.OO per annum payable out _ 

of the various funds mentioned. Such,auditor has served 

in aooordanoe therewith tothis date. 

'The above mentioned act of the Legislature appears 

to this writer to be a local and special claw in.violatioa 

of Section 56 of Article III of the Constitution. Many of 

your opinions have held simflar laws toba in violation of 

said~seotion of 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 supported with 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, according to the 

federal oensus of 1930. Aooording to the 1940 federal oensus, 

the population of Rays County is 15,349. It therefore appears 

that Haya County no longer comes under the provisions of said 

bat. This seems to be supported by 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's Annotated Texas Statutes 

Service, January 1942 Cumulative Pamphlet, being an aot providing for the appointment of 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 effective date 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.seemingly allowed by the 

above mentioned special rot ~for .Hays County, land-such Distriot 

Judge has made no appointment of such auditor for Hays County 

since July 9, 1941, ngr has such judge made prrg orders with 

reference to the salary of suoh~auditqr sinas 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 paid more than.#l25.00 for, eaohmillion dollars, 

or major portion-thereof, of the assessed vpluation, 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 applicable thereto, it is indicated clearly by your opinion 3351 

that the County Auditor of Hays County should refund to Rays 

County wl& he has been paid ia exoess oP,the amount that would 

be alioi&him undsi 41%. 1646 R.C.S. for 1926, from the date 

he received knowledge.that said special a& applying to Hays 

C&&y onlj at the time of passage ma8 unoonstitutional, or 

&oh refund bcmade from the date of the official preliminary 

publication of the 1940 federal oensus, or suah refund be 

made frcm July 9, 1941. It follows that said Hays County 

Auditor and his bondsmen I$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 auditor nith his approval after knowledge on his part.that such excess amounts were 

being paid under en unconstitutional law, or hadbeen paid 

to him under a law whioh ao &onger,applisd to 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, appearsti be a'.sufficiant 

showing that su& auditor aoted maliciously, corruptly or negligently within the rule anuounoed in Welch 

v. Kent, 153 S.W. (Zd) 284. 

"With mfprenoe to the foregoing, I would appreaiate having your opinion in aaspQring the following 

questions: 

: "1.. Is Acts 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 preliminary publication of the 1940 federal 

census? 

..~ a. 

,~ '3, Should the County Auditor 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&oh million~dollars, or major portion thereof, of the.assessed valuation~for Hays County aoaordiag 

.to the 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 County had 

no notice tM,t suoh speoial aot was unoonstitutional, 

should.he refund to Hays County all suus of money received by him in a year as salary frcpn Hays County in excess 

of *125&O for each million dollars, or major portion 

thereof; of ths assessed valuation for Hays County aocorditig to the l&t approved tax rolls, dating back to the 

dat&.of ChS~ preliminary publioation of the 1940 -federal 

C(111SUS 7 

.‘. 

"5. Without the presiding Distriot Judge in Hays 

County appointing an auditor for Hays County and fixing 

his salary after July 9, 1941, the MYeotive.date:of S. B. 

119, Acts 47th Leg., should the:Auditor.of &ys County refund to the county all sums of money received by him as 

salary fromthe county in excess of the minim provided 

in Art. 1645bsf?re the passage~of S. B. 1190 
I. . . 

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

"6. In the event it should be held that said 

auditor should refund aw of such money to Hays Qunty, 

would such auditor and his bondsmen be liable for such 

refund on proof that he knew such law to be unconstitutional and had reaeived such~exoess sums of money as 

salary thereafter, without showing ay further acts of 

said auditor that he acted malioiously, 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 

population of not less than fourteen thousand, eight 

hundred and fif'ty (14,850), and not more than fourteen 

thousand, nine hundred and twenty (14,920), according to 

the last preoading Federal 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 reaeons and necessities for such Auditor, and shall 

muse said order to be certified to the District Judge having jurisdiction in the counties hereinabove set out, said 

Judge shall, if such reasons be oonsidered good and sufficient, appoint a County Auditor as provided in drticle 1647 

of the Revised Civil Statutes of Texas of 1925, and upon 

the appointment by said Judge of such Auditor, such Auditor 

shali'qualify by 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, 

shall have qualified by taking the oath and giving the bond, 

as provided in Se&ion 1 hereof, he shall be authorizrl to 

perform all the duties now required of Auditors generally in 

counties of 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 equal monthly 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 Improvement Fund, in proportion and orithe.pero&t,~gn 

levies made for each respective Rmd, 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 employment of 

Auditors, and it is not intendend by this Aot to repeal 

any law, or parts of law, not in oonfliot herewith." 

It. will be noted that the above mentioned statute applies 

not only to those counties in this State having a population of not less 

than 14,850, and not more than 14,920 inhabitants according to the last 

preceding fedsral.oensus or any subsequent federal Cdnsus. This Department has heretofore construed numerous statutes similar to the statute 

above quoted, and has held that such statutes am unconstitutiohal and 

therefore void. The opinions bearing the numbers enumerated in the sotand paragraph of your letter quoted above and the ease of Miller v.-El 

Paso County, 150 S.W. (2d) 1000, and the authorities mentioned therein, 

support your.contention that the above quoted statute is unconstitutional. 

Therefore, in view of the above mentioned~opinioas and the authorities 

cited therein, it is our,opinicn that Article 1645a-6, supra, is unccnstitutional~and therefore void. 

According to the 1940 federal oensus the population of Hays 

Countyis 16,349 inhabitants. Bs above stated, Brticls 1645a-6 applies 

only to those aountiss having a population of not less than 14,850~and not 

more.than 14,9i~'irihabitants according to the last pmcceding federal census 

or any subsequent federal oensus. R&e the above mentioned statute (Art. 

1645a-6) oonstitut&onal it would no lon&r apply to Hays Cpunty. 

,’ 

Ite think that itwill bs~~oonvenieat to 

tions Runbars 3, 4, 6 and 6 together. 

Article 1649, Vernonis knotated Civil 

consider your quesStatutes, provides: 

"The auditor shall, wit+ tnmnty days of his 

appc$nta@c, and boforb he enter*-upon'the duty of his,office, make a bond with twu or ore good and sufficient sumties, in the sum.: of 15000, mytble to the oounty judge 

conditioned for the faithful performance of his duties, to 

b approved by the Cammibrioners~~Court. He shall also 

take the offioial oath end an additicnal'Rarrant in writing, stating that he is in very way qualified under the 

provisions and requiremen>s,of t.his'titlei and giving 

fully ths positions of private.or public trust he has 

heretofore held, and the length of service under each. He 

shall further inolude in hi6 oath that he will not personally bcinterssted in a9y contra& withthe county." 

It will be notad'that the above quoted statute requires 

the county auditor to take the usual offioial oath of offios, and also 

an additional oath,,in writing,~stactiqe; he has in every way qualified 

under the provisions and 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 assrpaed in your request that on6 or the other of this 

datds mentionad by you is the oorract date from which to calculate r6- 

funds duei to the oounty under the act in question. Your request raises 

the point as to whether a county auditor who reoeiws a salary under 

an unoonstitutional statute is liable therefor, also whether 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,in writing to any county or plaoinct officer 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 officsrs upon such questions touohingtha public interest, or conderningtheir official duties. (Art. 

4399, V.A.C.S.). 

W6 'think, that in~aooordance with our opinioa No. O-3351, 

whhers ths provisions of 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 sufficient to,deprive such officer of am equities and fixes the liability from that time on where illegal papmat 

of xalary ar6 recsived by him under the unconstitutional law. 

Generally 6peaking, SUNti66 ar6 not liable for mowy whioh 

has bsan paid to 6n officer under orders of the conrmissioners' court 

6nd which under no oircumstancas could rightfully bs collected from the 

county. Wils sureties ar6 liable for fees or commissions whioh ham 

be611 rstained by 811 officer fin 6x068s of the maxtim allowed, they may 

not be held accountable for eroesxive fess whioh have been voluntarily 

paid to him under an ordei of the wmmis6ioners' court or for w6r 

payments which have been,made to him under an o:der which the 00166Ii6- 

sioners' court had no jurisdiction to 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 County v. Davis, 192 S.W. 291; Iiarris County 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 oonstitutional limitations, 

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 oannot be built 

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

up ,under it;~ contraots whioh depend upon it for their 

consideration are void; it constitutes a protection to 

no one who ha6 acted under it, and no one can be pun- 

~ished.for having refused obedienw,to it before the 

decision '1~s made. llzld what is true of sn act void in 

tot% is true 6160 as to any part of an aot which 16 

found-tobe unconstitutional, 6nd which, oonsequently, 

is tc bs regarded as having n6ver, at any time, bsbn 

possessed of any legal force." 

The Supreme Court of Texas in Ssssums v. Sctts, 34 Tex. 335- 

350, 'did not ccnstrna the above authority a6 announcing a dootrine 

that an unoonstitutlonal law could be no protection to officers or-citizens, before the 66616 had been passed upon 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 ooastitutionality or uncon6titutionality of 

an act paased with all the fonsali+y of'law. It 

istfie duty of suoh officers to execute and not to 

pass judgment upon 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 deolared void by 

the tribunal properly oonstituted for that purpose." 

In view of the foregoing authoritie6, you are respeotfully 

advised that it is our opinion that the county auditor 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 auditor was appointed and qualified, from and after 

the date the county auditor ma8 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 county auditor is personally liable for suoh 6~6 or 6x6s received by him a6 salary in excess of the 

amount authorieed by Art. 1545, supra. 

In connection with the foregoing, ~6 nant to point out that 

the Qmmissioners' cburt of &ys County had the authority by virtue of 

Art. 1546, V.A.C.S., to appoint an auditor for the county and pay him 

a salary a6 authoriced by 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 portion thereon on the assessed valuation 
Honorable 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 county auditor 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 

PIRST ASSISTbNT 

ATTORNNY GENERBC 

Yours v*ry truly 

&lWRNEY GENERAL OF TKK@ 

w 

s/Ardell Williams 

Ardell Williams 

Assistant 

bpprwad Opinion C&mitt66 

By EKE Chlirman