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


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 ciuohcounties 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
           afiterthis 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 clawin.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 opin-
      ions, 2961 aud 3123.

           * "Too, S. B. 119, Chapter 601, p. 1331, General and Speo-
       ial uws of the 47th Leg., Sac. 1 and Sec. 2 of suah act appaar-
       ing as 4&s. 1646 and 1646 in Vernon's Annotated Texas Statutes
       Service, January 1942 Cumulative Pamphlet, being an aot provid-
       ing for the appointment of auditors and the fixing of the sala-
       ries 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 prrgorders 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 appli-
       cable 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 lzvArt. 1645, R.&S.
       for 1925, that have been paid to suoh auditor nith his approv-
       al 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:ofthe payment, appearsti be a'.sufficiant
         showing that su& auditor aoted maliciously, corrupt-
         ly or negligently within the rule anuounoed in Welch
         v. Kent, 153 S.W. (Zd) 284.

                "With mfprenoe to the foregoing, I would appre-
         aiate 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 there-
       of, of the.assessed valuation~for Hays County aoaordiag
      .to the ladt approved tax rolls, dating lmok to the date
       such--auditorreceived 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 receiv-
         ed by him in a year as salary frcpnHays County in excess
         of *125&O for each million dollars, or major portion
         thereof; of ths assessed valuation for Hays County aocord-
         itigto 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 re-
         fund 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 unconstitu-
      tional 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 nbces-
      sity in the dispatch of the county business, aad shall en-
      ter 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 hav-
      ing jurisdiction in the counties hereinabove set out, said
      Judge shall, if such reasons be oonsidered good and suffi-
      cient, 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 Revis-
      ed Civil Statutes of Texas, 1925, and amendments thereto not
      to exceed Two~Thousand;Four Hundred Dollars #2,400) per an-
      num, said salary to be paid in equal monthly installments
      and shall be p-aidfrom the County General Fund, of suoh
      oou&iss, the Jury Fund, the Road and Bridge Fund, the Per-
      manedt 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 Depart-
ment 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 sot-
and 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 unccn-
stitutional~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~'irihabitantsaccording 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.
                              ,’
               Itethink that itwill bs~~oonvenieatto consider your ques-
tions Runbars 3, 4, 6 and 6 together.

                   Article 1649, Vernonis knotated   Civil Statutes, provides:

               "The auditor shall, wit+   tnmnty days of his
     appc$nta@c, and boforb he enter*-upon'the duty of his,of-
     fice, make a bond with twu or ore good and sufficient sum-
     ties, 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 writ-
     ing, stating that he is in very way qualified under the
     provisions and requiremen>s,of t.his'titleiand 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 person-
     ally 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 additi-
onal 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 mentionad by you is the oorract date from which to calculate r6-
funds dueito 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 SUXI-
tirs 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 pla-
oinct 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 touoh-
ingtha public interest, or conderningtheir official duties. (Art.
4399, V.A.C.S.).

          W6 'think, that in~aooordance with our opinioa No. O-3351,
whhersths 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 ldvio6
giG6xi':lii&bg
             hii oounty or distriot attorney or fiomthe Attorney
General of Texas, is sufficient to,deprive such officer of am equi-
ties 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
be611rstained by 811officer 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; IiarrisCoun-
ty 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~smade. llzldwhat 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, 'didnot ccnstrna the above authority a6 announcing a dootrine
that an unoonstitutlonal law could be no protection to officers or-cit-
izens, before the 66616had been passed upon and adjudged invalid. The
court in its'opiaicn said:

           : ..% are not willing to endorse the proposi-
     r :'~,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
          istfieduty 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 bind-
          ing 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 un-
omstitutuicnal by the county or district attorney or the Attornsy Gen-
eral. It.is our further opinion that the sureties on the official bond
of the oounty are not liable, but the county auditor is personally lia-
ble 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 regard-
ins 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.

                                                 Yours v*ry truly

                                          &lWRNEY   GENERAL OF TKK@

                                          w
                                              s/Ardell Williams

                                                Ardell Williams
                                                      Assistant

bFTFmND ml   13,,1942

s/Grover Ssll6rs

PIRST ASSISTbNT
ATTORNNY GENERBC



                                           bpprwad Opinion C&mitt66
                                           By EKE Chlirman