Honorable Henry C. Kyle
County Attorney
Hays County
San Marcos, Texas            confllaf; with this opinion.

Dear Sir:                   Opinion MO. O-4715
                            Rer (1) Whether Section 1 of
                                 ltctsof 1939, 46th Legis-
                                 lature, Speolal Laws,
                                 page 565, is constltu-
                                 tlonal:
                                 (2) The datds from which
                                 the oommiasionsrs of Rays
                                 County ehould refund all
                                 salaries paid them over
                                 and above the maximum
                                 amount due them;
                                  (3) Whether the County
                                  Auditor-and the sureties
                                  on'his official bond are
                                  liable for all amounts
                                  Reid the county oommia-
                                  aioners over the maximum
                                  prescribed ln Article 2350
                                  of the Revised Civil Sta-
                                  tutes of Texas on warrants
                                  a~@provedby him and issued
                                  under the above referred
                                  to bat OS the Legislature;
                                  and
                                  (4) Whether the sureties
                                  onthe oommiseloners~ bonds
                                  are liable for the exaeaa
                                  salaries paid to said
                                  aommlsai.onera.
          Your request for an opinion on the above matters
has beenreceived and carefully oonsidered. We quote from
your request as followsr
          "Section 1 of Arts 1939, 46th Leg., Speo. L.,
     p. 565, as per page 111, 1941 Cumulative Annual
.   .




        Honorable Henry C. Kyle, page 2, O-4715


             Pooket.Part for Vol. 7, V.A.C.S., Art. 2350m
             notes, reads as follows:
                 "*Section 1. That the salaries and aompenaa-
            tion of each of thecounty Commissioners in aoun-
            ties with the population of not less then fourteen
            thousand, nine hundred and one (14,901) inhabitants
            nor more than fourteen thousand, nine hundred and
            twenty (14.920) inhabitants, according to the last
            Federal~Census; as ~same now-exists or-may hereafter
            exist. and having an assessed valuation of not less
            thanseven Million, Pour Hundred and Thirty-six
            Thousand Dollars ($7,436,000), nor more than Eight
            Million Dollard ($8,000,000), according to the last-
            approved tax rolls, as same now exista or may here-
            after exist< the Commissioners Court of the oountlea
            coming under the provlsions of this Act shall have
            the right to fix the exaot amount of ~sald salary,
            whioh shall be not to exoeed Eighteen Hundred Dol-
            lars ($1800) per annum, payable in equal monthly
            installments of not to exceed One Hundred and Fif-
            ty Dollar% ($15O).r
                  "(That part above as underlined was so under-
             lined by this writer.)
                  " ...."

                  you aiso atate that, at the time this act was
        passed, Hays,County was the only oounty in Texas that hami
        within the population and valuation braakets named therein,
        and that it has sinoe~passed out of said brackets. You Sur-
        ther state that shortly after said Act was to have become
        effeotive under its terms, the Commissioners* Court of Hays
        County set the salaries of its Commissioners as provided
        for therein, and that the County Auditor has examined and
        approved suoh expbndltures.
                  Under these facts this law applled~to no oounty in
        Texas other than Hays County. It does not now apply to Hays
        County and it is unoertain that same does or will ever apply
        to any other county in Texas.
                 Sec$j.oq   56,   Artlole   III of the Constitution of
        Texas, is in part as follows:
                 "Sea, 56. The Legislature shall not, exaept
            as otherwise provided in this Constitution, pass
            any local or special law, authorizing:
-.     .




     Honorable Henry C. Kyle, page 3, O-4715


            . ...”    ....
                "Regulating the affairs of counties, cities,
           towns, wards or school districts:
                     ,t
                     .....
                "And in all other cases where a general law
           can be made applicable, no local or special law
           shall be enacted; ...I'
               In the case of Miller, et al vs. El Paso County,
     150 S. W. (2) 1000, the Supreme Court held that the Legis-
     lature has a broad power to make classifications for legis-
     lative purposes and to enact laws for the regulation thereof,
     even though such legislation may be applicable to a particu-
     lar class or, in fact, affect only inhabitants of a particu-
     lar lccality; but such legislation must be intended to apply
     uniformly to all who may come within the olas~slfioationdes-
     ignate.d.;‘
              in the Act; that there must be a substantial reason
     for the classification; that it.must not be a mare arbitrary
     device resorted to for the purpose of.giving what is, in fact,
     a local law the appearance of a general law. In that case
     the only county in Texas that came within the provisions of
     the Act was El P&so County and no other county would home
     within its provisions for at least five years after its adop-
     tion, and the court held that same was an unreasonable class-
     ification that bore no relation to the objects sought to be
     accomplished by the Got, and was therefore void.
                In thecase of Bexar aountyvs. Tynan, et al., 97
     S.W.  (2) 467, the court was oonsldering the~constitutional-
     ity of a law which would apply only td Eexar County and no
     other county in the Stats. The oourt held that said Act on
     its face purported to be a general law, and that because it
     may have applied to only one county in the State at the time
     of its ,passagedid not alone make it a special law in view
     of the fact that it was not so'passed as to exclude the prob-
     ability that it would apply to other oounties in the future;
     out tne court held said law was void upon the grounds that
     the attempted classification set forth therein was unreason-
     able and arbitrary to such a~degree as to indicate beyond
     doubt that the purpose of the Legislature was to single out
     one comty and attempt.to legislate upon the question of the
     compensation of its officers, and no,tupon the spbjeot gener-
     ally.
               The rules of law laid down in said opinions apply
     to the Act inquired about by you, and it is the opinion of
Honorable Henry C. Kyle, page 4, O-4716


this department that Section 1 of said Act is unconstltu-
tional and void, and we so held. We also direct your atten-
tion to our opinion No. O-1986, a copy of which is hereto
attached.
          Article 2340 of the Revised Civil Statutes of Texas,
relative to bonds as shall be executed by County %ommission-.
ers, contains in part the following provisions:
          "...conditioned for the faithful perform-
     ance of the duties of his office, that he will pay
     over to his county all moneys illegally paid to
     him out of county funds, as voluntary payments or
     otherwise, and that he will not vote or give his
     consent to pay out comty funds except for lawful
     purposes."
          Judge Cooley, in his work on Constitutional Limita-
tions, Volume I, ~8th Edition, at page 382, laid down the fol-
lowing rule:.
         "When a statute is adjudged to be unconstltu-
    tional, it is as if it had never been. Right oan-
    not be built up under it; contracts which depend
    upon it for their consideration are void; it con-
    stitutes a protection to no one who has acted un-
    der it, and no one can be punished for having re-
    fused obedience to it before the decision was-made.
    And what is true of an act void in.toto is true
    also as to any part of an act which is found to
    be unconstitutional, and which, consequently, is
    to be regarded as having never, at any time, been
    possessed of any legal force."
           See also 11 Am. Jur., Se;. 148,'p. 827; 9 Tex. Jur.
Sec. 51, pp. 467-468; Miller, et al v. Davis, et al., 150
S. W. (2) 973, Supreme Court; Ellis vs..Board of State Audi-
tors, 65 N.W. 577, Supreme Courtof Michigan.
          Under the terms of the st_atutehereinabove referred
to (Article 2340), each oommlssioner was-required to execute
a bond conditioned for the faithful performance of the duties
of his office and that he would pay over to his county all
moneys 'tillegallypaid to him out of county funds, as volun-
tary payments or otherwise". The,law under which payments
of salaries were made to the Commissioners of Hays County
over and above the sum of $1400.00 per year being unconstl-
tutional, all sums paid to each of them in excess of said
.     .




    Hon. Henry C. Kyle, page 5, C-4715


    $14OO.C0 ~per year were lllegally~pald; therefore, ea,ohof
    said.Commis~sionersis 1,lableto repay .su.oh exoess salaries.
    so paid to him, and it is the opLnion~of~~this::department,
    and,you,are so advised,.that each .ofsaid ,C,ommlssloners is
    liable ,for,all sums paid ,to him over ,and'abovethe $UCC.OO
    per yeas provided for by law.,
               In~further support of.this conclusion, we direct
    your attention to the case of Kltohens et al.~v. Roberts,
    County Treasurer, 24 S.W. (2) 464. This was a'sult by the
    County Treasurer of Wood County ,torecover  of a county com-
    missioner in excess of the amount due him under the general
    law. Said sums were demanded.by and paid to said oommission-
    er by authority of a special act of the legislature, and the
    suit to recover same was on the theory that the Legislature
    was without power t,oprovide by said special act for the
    payment to,a county ~oommissionerfor his servloes as such a
    sum in excess of that fixed by general law. The trial oourt
    sustained this~contention, held ~sald,speolalhot unconstl-
    tutional and gave plaintiff judgment for the amount sued for.
    This judgment was affirmed by the Court of Civil Appealsand
    ;z;;;cation for writ of error was refused.by the Supreme
         . See also Duclos et al v,. Harris County, 251 S.W. 569,
    affirmed by Supreme Court, 263 S.W. 562. The case of Cameron
    County v. Fox, 2 S.W. (2) 433, was a suit by a county to
    recover from a tax collec,torpremiums on bonds.theretofore
    allowed to him by the commissioners~ court, and the Commission
    of Appeals held that, notwithstanding ~the payment to"the tax
    collector was voluntarily made, the amount so paid aould be
    recovered~in an action by the county as said.payment was made
    without lawful authority.
              As to the llabillty of,each individual Commissioner
    under that part of his bond whllchprovides "that he will not
    vote or give his consent to pay put county funda except for
    lawful purposes", for the excess salaries paid to each of the
    other commissioners~over and above~sald $1400.00 per year, we
    refer you to the rules of law laid down in the case of Welch
    et al v. Kent et al., 153 S.W. (2) 284. This was a suit by
    the County~Treasurer of Jefferson County.against the County
    Commissioners of said County to recover the amount of certain
    claims against,the County which were alleged to.have been paid
    by said Commissioners without authority of law, and that, as
    to said Commissioners, their said act constituted a voting and
    consenting to .the payment of funds and moneys out of the
    county funds for unlawful purposes, and that said Casnnla-
    sioners neglected in said particulars tofaithfully perform
    and discharge the duties required of them. The trial court
                                                 _-
    Honorable Henry C. Kyle, page 6# O-4715


    rendered judgment ln plaintlffts favor, and the Court of
    Clvll Appeals reversed and rendered said judgment on the
    ground that, V.n voting tto pay out county funds', a county
    commissioner 1s not liable when actuated by puremotives,
    but only when he sots maliciously or corruptly, or under
    circumstances imputing mallpe or corrupt motives. He is not
    liable to hisscounty for hisjudicial aots, no matter how
    erroneous in law may be his judicial decision, so long as
    he acts in good faith".
               Therefore, it is the opinion of this department
     that each of said County Commissioners would be liable for
     the excess salaries pald,to each of the other Commissloners,
     in addition to the amount individually received by him, if
     it can be shown that he acted maliciously or corruptly, or
     under clrcumstanoes imputing malice or corrupt motive, or
     without good faith. As evidence of such malice or corrupt
     motive or laok of good faith, it obuld be shown that each
     Commissioner had received authoritative advice from the
    b ounty or District Attorney, or the Attorney General, that
     the law under which said excess salaries had been paid was
     unconstitutional, or that it no longer applied to Hays Coun-
     ty by reason of the fact that said County had passed out of
     the population or valuation braokets provided ln said law,
     whIchever was first ln poI.ntof time, and any payments voted
     for or consented to by said other Commissioners after re-
     ceiving such advloe would likely come within said rule of
    law.

               Article 1649 of the Revised Civil Statutes of Texas
     gives the requirements of a bond for a County Auditor, and
    .same is conditioned "for the faithful performance of his du-
     ties". Article 1651 of said statute contains ln part the
    following: "and he shall see to the strict enforcement of
     the law governing oounty finances".
              Article 1653 provides that he shall have continued
    aocess to and shall examine all the books, a~ccounts,reports,
    vouohers and other records of any officer, the orders of the
    comtnissioners~court, relating to finances of .thecounty, etc.
-
              Article 1660 of said statutes provides that all
    claims, bills and accounts against the county must be filed
    In ample time for the Auditor to examine and approve same
    before the meetings of the commlaslonera~ court. That no
    claim, bill or account shall be allowed or paid until it has
    been examined and approved by the County Auditor.
              Article 1661 of said statute contains in part the
    following provision:    -~
.     .                                                            \



    Page 7    "All warrants on the County Treasurer,,except
         warrants for jury service, must be countersigned
         by the County Auditor."
    See also 11 Tex. Jur., Sec. 52, p. 581.
              .In the case ~of Sessumsvs..Rotts, 34 Tex.:335-50,
    the Supreme Court held that certain considerations must be
    given to ministerial officers and laid down the following
    rule:
               “We are not willing to endorse the proposi-
          tion,-in its broadest sense, that a ministerial
          officer has the right and power to decide upon
          the cons,titutionalityor unconstitutionality of
          an act passed with all the formality of law. It
          is the duty of such.officers to execute and not
          to.pass judgment upon the law, and we aresof the
          opinion that the clerk of the district court should
          have refused to have issued exeoution in violation
          of what appeared to be avalid and binding law,
          until the same had been~de5lared void by the trl-:
          bunal properly constituted for that purpose."
              The rule as to when a county auditor canbe held
    liable for payments of compensation paid to others is laid
    down in the case of Welch, et al v..Kent, et al.; 163 S.W.
    (2) 284, which involves a county auditor and his successor
    in office, as well as the county oommissioners, in the fol-
    lowing language:
                    One condition of their oath and bond
          (Art.niii9, R.C.S. 1925) was that they vmuld
          faithfully discharge the duties of thdlr office.
          To constitute a cause of action against a county
          auditor on his bond, the pleader must allege and
          prove that, in the matters charged against him,
          he acted maliciously, corruptly or negligently,
          20 C.J.S., Counties, # 140, p. 952: these elle-
          gations must be made by the pleader because of
          the presumption of the regularity of the official
          acts of the county auditor. ...I(
    See also the.case of Wade'vs:Board of Com*rs.lof,Harmon
    County, et al., 17 Pac. Rep. (2) 690, Supreme Court of Okla-
    homa.
              Under the statutes and rules above referred to
    and set out, it was made the duty of the county,atid.itorto
    see that no payments of salaries were made to said county
    commissioners in excess of these provided ~for by law. Sal-
    aries having been paid to the Commissioners of Hays County
Honorable Henry C. Kyle, page 8, O-4715


 in excess of those provided for by law, we hold that the
 County Auditor is ,llablefor all such sumsso paid, insofar
 as he acted maiiciously~ corruptly or negligently in permlt-
 ting said payment to be ma&.   It is our further opinion,
 however, that the same rule of good faith would apply to him
 as we have hereinabove held should apply to the County Com-
';missioners,in that said Auditor would not be liable to pay
,any of said sums paid to said Commissioners DZL~.QZ
                                                   to thedate
 he may have received authoritative advice from the County or
:District Attorney, or the Attorney General, that ~the law un-
 der which said excess payments were made to said Commission-
 ers was unconstitutional, or that same no longer applied to
 Hays County by reason of the,change in the population or val-
 uation bracket, whichever was first in point of time.
          The general rule as to when the sureties on the
bond of public officials can be held liable for the action
of said public officials is laid down in the case of Jeff
Davis Countyvs..Davis, et al, 192 S.W.'291, writ dismissed.
This was a suit against the sheriff and the sureties on his
bond to recover certain sums of money paid to said sheriff
on claims presented by .and allowed to him that were alleged
to be unjust and illegal. The trial court sustained excep-
tions filed as to said sureties and dismissed the said suit
as to them. Sustaining this action, the Court of Civil Ap-
peals held as follows:
          n ....

          icAndln Heldenheimer v. Brent, 59 Tex. 5333,
     it was said:
          "'To ohrrge the sureties on a sheriffts bond,
     the~act complained of must not only be one-which
     he might rightfully do as sheriff, but which must
     be actually done~by him as sheriff, under claim of
     right to do the set as such officer.
          "This statement of the law is the application
     of a rule by which the acts of a sheriff for which
     his sureties may be held liable can be distinguished
     from those acts for whloh they will not be held lla-
     ble. The former are termed acts done tvlrtute offioii*,
     end the letter *oolore officll~. The distinotlon is
     this: Acts done rvirtute officll* are when they are
     within the authority of the officer, but when ln the
     doing he exercises that authority improperly, or
     abuses the confidence which the law reposes ln,hlm;
.
    Honorable Henry C. Kyle;page~ 9.,O-4715.     :


           whilst .ects dons tcolore offioi,iVare.where .they
           are 'of such~~natiire
                               'the'
                                   offiie gives ~him'no'au.thor-
          'ity to do them'. '~Gold,v.':%amp~(rll;~54;-Tex.
                                                         Div.~App.
          '269, ll’k3.W.  ,463,,~at'
                                  468.'
                 " ...."

                  see also Miller, et al vs. Foard County, et al.,
    59   S.W.   (2) 277.
              Under these rules it is our opinion that the sure-
    ties on the bond of the County Auditor would be liable for
    the repayment of any and all sums paid to said County Com-
    missioners that the Auditor himself would be liable for the
    repayment of, for the reason that permitting said payments
    to be made to said County officials was in violation of the
    terms 0fhi.s bond which provided for "the faithful perform-
    ance of his duties". In other words,,the acts of the County
    Auditor in approving payment of said exc~esssalaries to said
    County Commissioners was done within his authority as such
    officer. Ordinarily these rules would prevent the sureties
    on bonds of said County Commissioners from being liable for
    the excess sums paid to said Commissioners; since same were
    not paid in the performance of any official duties on the part
    of said Commissioners; but, in becoming sureties on the bonds
    of said County Commissioners, said sureties agreed that said
    Commissioners would "pay over to hisCounty all moneys llle-
    gaily paid to him out of County funds, as voluntary payment
    or otherwise, and that he.would not vote or give his consent
    to pay out County funds except for lewful~purposesn. This
    provision of said bonds having been violated and said bonds
    having embraced the liability to refund said salaries as for
          unlawfully had and received from the County, we hold
    that the sureties on the bonds of said County Commissioners
    are also liable for any and all sums the Commissioners them-
    selves will be .liable for.
              This department has heretofore, in opinion No.
    0-4431, addressed to you, and opinion No. O-3351, addressed
    to Honorable B. F. MoKee, County Auditor of Hldalgo County,
    Edinburg, Texas, and opinion No. O-4635, addressed to Honor-
    able Martelle McDonald, District Attorney, Big Spring, Texas,
    held that the oounty officials named in said opinions who
    had been paid certain funds under laws which were held to be
    unconstitutional, should~refund all such moneys reoelved by
    them from the date they were advised of the unconstitution-
    ality of said laws by the County Attorney, District Attorney
    or the Attorney General of Texas. Insofar as said opinions,
-.     .

                                                                     : I
                                                                       /


     Honorable Henry C. Kyle, page 10, O-4716


     or either of them, oonfl$ot with the holdlngs.here~above
     made in regard to the liability of oounty oommisslonere for
     repayment of,exoass salaries paid to them under an unoonati-
     tutionel:law end the time from which said paymentg should be.
     made, same are hereby expressly overruled.
               Trusting that this satisfactorily answers your ln-
     quiry, we are
                                        Very truly yours

                                   ATTOHNEY GENEEUL OF TBXAB
                                   a/ Jae. W. ,Bassett


                                   Bs       Sas.   W. Bassett
                                                    Assistant
     JWB:mp/Cg
     Encl.

     Approved Oat. 2, 1942
     s/ Gerald Ci Mann
     Attorney General of Texas

     Approved Opinion'Commit~tee
     By EWB, Chairman




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