The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1901-08-13
I'M APPOINT AUDITOR.
" Attorney F. |. Schwaadef So
ri Idvises the Commissioners
! LETTER TO J. Il. G. BECKER
,..;,oers Have No Legal Right
~, J Create an Office Not Az
thorzed BY Law.

thonzeu ny IeW
~. ,he special term OF the Harris
's'''H rlssloners court last month, ana
~ ~ wv coart was in session as a board
v ,ue an order was entered ap-
'l ~. AR b. II. Fox auditor for Harris
apns A. the time Of the appointment
np' ..,ended that the court was not
~ "a Il create the office of county
$3.50 and the further objection was
~, ~, such appointment should nave
y ' .,,,5qd in the call for the special term
= tA, M, After the appointment was
~ ~ matter was pigeonholed' pend
y 'es Of the courts author
i ,he premises.
Y ss,oner j. II. G. Becker OF pre-
9 7. .aSressed request to County At
l. schwander for legal opin
~ III action Of the court. The opin.
Vaonislnlng a portion OF lhe ihquns
4 CV1 rsled it forth. is herewith SUI
l y & Becker. Esq, Commissioners Pre-
\ u 81 Harris County, Texas
bel ~ nous \. 1901. Dear Sir; Yonr
lqusl 'Iniv "a TO iue duly received III
lei " ,oee mat YOU request my opinion
ISr in regard 10 the Following ques-
ns tbe commissioners court, not
I, hsing Ia special session, nave the
.s,,Iir To appoint an audltor
laqnd The court been In special ses-
IVY y M election Of an auditor had not
7 y ta in the call, would the
y hsve had the right to make the APP
n'n II ibe court had hecn called for the
- or Il The court had been In reg,
4 SESSION. would 1t have had the lesll
\, 20 anpoiut an auditor even thouSh
Y called said officer a spcclal clerk OF
commissioners courtt
N. "a report 10 YOU as follows IRON
soscinslo1 of law which ] nave reached,
spn. ~ question No /, / deem Ii IN
.ssssry 10 answer questions Nos ! and =
erder 10 answer question NO. q intel
NM am compelled to refer to so much
pIs order OF the comm ssioners court
aa,rcsbie ia said question, as follows!
snecisl clerk OF the commissioners
L, "a nerform such duties and do such
81 as Is usually performed 10y auditors
|sornoratlons considers the appointment
spta clerk or auditor, charged WIN
dnty Of checking reports, bills ana nc
ms before their presentation to tue
IN for Its approval, the checklhg OF
|kets, fee books jail BOOKS ana me NE,
Fans reports made TO the commission
e0nrt and other Ike duties etc by
|. order the court seeks to create an
Eoa NOT mentioned in the constitution nor
INV legislative tlen the
Eson follaws. has the commissioners
td The legal right 10 create an ofnce
authorized by law All powers ana
tsiletlon Of the commissioners court (as
Il as anv other courD is derived from
constitution and laws of this state, aud
h court can only cXoI else such powers
\ Jurisdiction over all county business
e0Aferred by the constitution ana the
! II this State or us may hereafter he
sscrlbed' Constitution Art. ., Sec. il,
Is constitutional provision only confers
% the commissioners court "Such pow
md jurlslictiom over all county bnsl-
ss as are conferred by the constitution,
j does not confer jurisdiction upon the
|Rmissloners court over the county bust
y and subject that jurisdiction to such
tnlellon as the legislature may prescribe.
authority generally over such county S
fless. II also confcrS such powers
are conferred by laws OF this state.
4 constitution also gives the commits
Egs court "the power to fill vacancies
The office Of the comfy Judge and tus'
Il Of the peace" Art. V, See 2S. Then,
Hue constitution has not conferred any
fsietlon upon the commiSsi OnerS court
create said office Of special clerk or
fltof we must look TO the legislative
tements for authority TO create said
PEI because the commissioners court
exercise only such powers as are cX-
sssly conferred upon them by statute or
feh are necessarily implied from the
ffefred authority" A. & y. Enc. Of Law
l. p. 3i5 note , Article 1887, Sayle's
Rutes, defines the powers and duty Of
commissioners court as follows: Sec
4 ], To lay off their respective coun-
into precincts not less than -four nor
n than eight, for the election of justices
\ me peace and constables, and shall fix
\ times and places of holding the various
.ees courts in their counties and shall
ellsh place In such precincts where
4uonS shall he held; also, snail estab-
Justices precincts and justices courts
anorganlzed counties as provided by
Y To establish public ferries whenever
$he interest may require
70 lay out and establish, change, and
{eatnye public roads and highways.
repair
70 aplolnt road overseers and APP
Iuon hands
70 exercise general control and super
Euaence over all roads, highways, fer
snd bridges In their counties.
4 10 provide and keep In repair court
f. lalls and all necessary public build
70 audit, adjust and settle all ac-
~ against the county aud direct their
@ent and 10 audit adjust and settle
4 M styVouhls and claims in favor Of the
y provide for the support Of paupers
4 ,Sr,,n. nlots ami lunatics as can not
~ into the lunatic asylums, rest
Il IN Lneir counties who are unable 70
"A IL provide for the burial OF paupers.
u ~ punish contempt by fine not ia
4 ~ or by Imprisonment not 10 eX-
j. nss,ssuy-ioN hours, and I'm case of tine
y tne my he held In custody until
u IN processes as may be necessary
+ ~ ~, proper execution Of the powers aud
US jurisdiction.
4 sp p,yh@w from the statute given above
81 in,aa. Azeu the court to make the ap
dlrisis o. special clerk or auditor
M which Is the nearest which
3 anSi ne question under consideration
|4ay y. ADJUST and settle all accounts
tae county aud direct their pay
u M. 70 andlt adjust and settle al
/" anu claims In favor of the coun
'sa IN power Is expressly conferred
81 court; but nowhere can / md III,
+sti,g,ienh the court has the power Of
81 nv Tor Instance, under subdivi
y dn,n1e court has the power and it Il
IS beWss 70 provide and keep In rcpail
#aaesns lalls and all necessary publi'
rs,s@ ana vet 1t has no power L
20 nm architect its authority (,
b. p,vnliact to construct eour
"a sIaNsell VS.. Cage. CO Texas AS
n "A under subdivision 10 Il is IL
n Ser.., provide Tor the burial 81
NJ a. hrsiel, Eet the county is not liabll
a be CONF, of paupers not authorize,
~ NJ ~, MeNorion VS.. Val Verde Co.
- ~ 80 II clearly appears 70 M