. . * 

PRICE DANIEL 

ATTORNEY G!z:IIHXAL 

February 21, 1947 

Honorable D. D. Williams opinion NO. v-40 

County Attorney 

Throckmorton County Re: Authority of the 

Throckmorton, Texas Commissioners1 Court 

of Throckmorton County 

to sell personal property such as worn out 

road machinery without first hevins aavertised the same for 

sale on open bids; and 

authority or the Tax 

Collector to make summery levy on personal 

property as provided 

in Artiole 7268. 

Dear Mr. Williams:, 

In your letter of Feb. 4, 1947, you present ror 

the opinion of this department two questions. These are 

as r0ii0ws : 

“1. Is the Commissioners' Court 

authorized to sell personal property 

such as worn out road repair machinery 

and like items without publicly edvertisin(T the same as being for sale and 

selling the same at public auction? 

(Each of the commissioners or this 

county have~in their'charge worn out _~ 

and useless maahinery and tools which 

they wish to dispose or immediately. 

They went to know the proper and legal~ 

procedure ior doing so.) 

-2. Can the tax colleotor of the 

county levy on personal property which 

is about to be removed from the county 

before he has completed his tax rolls 

under Art. 7268, Texas R. C. S. 1925, 

(There are several drilling rigs in the 
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Hon. D. D. Williams - Page 2 (V-40) 

oounSy whiah l re 4uo to be mere4 

in the near future. The taxes are 

not delinquent on them since they 

are only subject tc tamtim rer 

the year 1947 in this aouaty. The 

tax collector would like to know 

wkotimr he would be premature in 

Lie sotion if he attempted to levy 

en 8 rig now ii the owners bhereer 

sttrpt to mmove the same rmr this 

ooaaty. Please send l o sll epiniena 

whloh have been renders4 oenstwing 

tbs above statute.)" 

10 ah811 answer these questiou in the order 

. strted. 

Tko ~urls4i0fien oi’ the Comis810aers1 Ceurt 

is d*finti 18 tko lstter pert or sec. 18 or Art. v 0r 

.the fWi8titutlen in the tollowing wsr48: 

*T& l r ounty aonlssisner so chosen, 

wit& t&s couaty judge ss pmsldikg 

ottleer, shall oompese the aouaty 

l ~srloners court, end shslf examleo suah powers aid jurlsdlotlon 

*I** a11 oetity businesj as is doehlne4 by this oonstitu%ion sn4 the 

lawa et t&a St&e, or my be horeaftor prwarlbod .v (Daphaais oura) 

It should be observed, hewever, that them is 

an express l%BitatiOn upon the ~juriadiCti0B thus conferre4, tlmt 18, it muet be noounty bUine880w The term 

"oouaty b~lnesaa rhea14 be given s bros4 u&4 Llbenl 

construatlea 80 as net to .detert the purpose of’ the lsw. 

Glenn .v. D&G ~o;tyG~;is 4’Am Islsnd Levy District, 

(Cl+. A#p. o Moreover the ComwlssienersJ’ 

Courts lmr impliid iutkerity to do wkat may be necessary 

In the exeml8e of the duties or powers expressly oomrerred upon thus. City Nations1 Bank v. ?realdio County, 

(Civ. Appd) 86 S. W. 775. 

In the osse of Stovsll v. Shivers (Corn. App.) 

103 S. W. (2d) 363, Judge Germen, speaking for the Court, 

said : 
Hoa. D. D. Williams - rage 3 (V-40) 

“The duty of the Commissioners 

court is to transact the business, 

protect the interests, and promote 

the welfare of the county as a whole, 

Among the powers conferred upon such 

oourt by Artialo 2351 are the following: Tha power to lay out and 

l stabliak,, okaaee and 4iscontlnuo 

roads an4 highways, the power to 

build bridgas and keap tham in mpair, and tho power to exercise general control over all raads, highways, ferries, and bridges in their 

counties .n 

Thus in the exeroise of the powers expressly 

coaierred by statute, l r by reasonable inference therefr&m the commissioners * caurt undoabtedly has the power 

to purchase suoh road machinery and equipment as are 

raasonably nooe6aary to carry out the powers conferrhl 

upan it by Art. 2351, as suggested above. It does not 

nacasaarily rollan, howavor, tbt it has the sama power 

to sell suoh property, and such powers as it does have 

in thla respect must l risa by necessary implication in 

transactlag “oounty business .” Is the sale or worn out 

and l ntlqaat.4 parson81 property of the County by the 

Coniaaioners~ Court voouaty basiness”? If so, and wa 

think it la, than such powor is logally vested, in tha 

Commlarlonars’ Court, 

Such property whon erlginally purchased becomes 

tha pmparty or the Ceunty, an4 not of the respective Commisaioaer~s precinct to which it night be allocated. Tha 

Oouaty 1s la a sanse a pub110 corporation, and must, 

therafora, racalva all its powars from the Constitution 

an4 statutos which gave it. l xistoaco. Tm the Commissioncrap 

Oaart, ua&er tho Coaatitutlaa aa statutes is committed 

“oouaty bualaass” e Tharo is an ‘ansoatlal dirreraace batwoon .tha rig&s er such public dorporatians raspacting 

tim dispositloa or property and natural persons, the 

latter having l n inherent right in disposing of their 

pnparty, whllo pub110 corpomtions can saly acquire 

and dispose ai pmporty by vlrtuo of coma poaitlva law, 

l r l o eo sa a r y irplicatian arising thorarram. 

Therm will sot be found sny l xpmss statutory 

pnriaiom ooatarrlng upon the Coarissioaors’ Cmurt authority to 0011 personal prsperty bolongi&I to the County, 

bat wa think that by necessary implicatien from the posi- 
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EIon. D. D. Wllliama - Pa&a 4 (V-40) 

tive law, which, under the Constitution and stetutes, is 

conferred upon the Commissioners~ Court to transect the 

business of the County, to protect its interests 1 end 

promote the welfare of the County aa a whole, that sound 

public policy justiries the action or the conissieaersq 

Court in selling worn out road mechinary when dotorioretion has reached the point where it would no longer bo 

the exercise of sound economic principles to centlnue 

its use. 

We are, thererore, of the opinion that it is 

within the inpllod power of the Commlssioners~ Court to 

sell personal property, such as worn out road meohinery 

and likr items, when within the sound discretion ot the 

Court it no longer serves a sound economic usa to the 

County. 

Since the stetute does snot speoifioelly euthorize e selo of such property, but rests upon the 

implied powers within which the Court is l etherized 

to act, It necessarily follows that no method Is provided as to the menner of disposing of suoh property. 

WI think this rests within the reesonablo discretion 

of the Commissionrrsl Court acting as l whelm, to pursue the ~method that will preduco the highost price, 

whether by private or public sale. We think either 

method would be legal if pursued in good faith end with 

l view of prot,eoting the’.intarests of the County end 

promoting its gonerel wlrare. 

. 

Your seoond quastion has heretofore beon answored by this department by opinion No. O-3480, a copy of 

which is herrwlth enclosed for your inform&ion. 

The Commissioners1 Court has irplied authority to sell, either at private 

or pub110 aelo, worn out end antiquated 

road meohinery, when in the sound disoretion of the Court suoh property ne 

longer servos l useful purpose, consistent 
.I. 

Eon. D. D. Willluw - Page 5 (V-40) 

with the l oenoaio interests O? the 

county. 

Yours vary truly 

ATTORN'SY GlCRE?&L OF TEXAS 

AlPROVED 

LPL: jrb