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                             -OFFICE += THE ATTORNEY GENERAL OF TEXAS
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            Honoruble George 11. Bheppard
            co~ptrollcr of Pilblio accounts
            Austin, Texas




            the question                           as
            payPant   Pas                         per
            at the StGt0


                                                                       e    on such a contraot on8 that
                                                                           not ho p3ssch for pay.asnt.




             Syete3, addsessed to you3?Self, and advisins th:lt.tho equip:ao~t
             coverca by the contract    can be roooved an3 rotumcd to the
             .Ca3x?ronCan Z::achiaery Cozqany.  i,e understand him to mzan by
             this that the :mAj.nery incltallsd    under the contract iS Such
             that 5.t OGu’be removed ad returned d.thOut inju::y to my of
             thz othsr property belonging to tho 3~~s I"rison Syntsn, in
             Pact I&, ~l).ingoon hss verbally   ac?vlucd w that such 1s trua.
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            ,. lionp$%blc George H. Sheppard, Page 2
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                        ~'*,.,
                               Icn the case of Salt Creek T. P. vs. King Iron
               Bridge'.and Manufacturing Co., 33 Pac. 303, the Supreme
               Co& ;OP Kansas was construing. a contract wherein the Salt
               Creck township had contracted with the King Iron &id&e and
               Wnufaoturing         Coqany Par the erection     of a bridge along
               the‘h;,ighway of said oity.        The court held that the oontract
               was.vo?d because the city did not have the authority            to oon-
               tract ,for the erection       of the bridGe.     The COWS aid 8tb3
               as ,:.-'y,-,
                   f ollow3,
                           ., :~hoiwv*r :
                               n* * .*   Of course, as the bridge was
                    '. constructed'upon     the highway with the per-
                       mission of the authorities,       the colapmy my
                       p~~ovg the sme.       AS the tovmhip rifuses      to
                       pay for the bridge,      it can have no interest
                       or right to keep it.       All- the parties acted
                       without any statutosy      authority."
                           ‘In the case OS E'loyd -County +s. Owe~o Bxiclge Co.,
                 137 8, Yl. 237, the Court of appeals of Kentucky was constru-
      f-         ing a contraot entered @to between a county and a bridge
                 company for the emotion   of three bridges.   The court held
                 the oontraots to be void. because the agents of the county
                 who had .eutered into the contracts  were without authority    '
                 to mks such agreeinent.   The. oourt coiwludod as follovis:
                                 "HoIor;ever, there is a rule which is ap-
                          plicable   to this case,     as was sa:id by the
                          S~pr%r@~ Court of the United States,       in Marsh
                          v, Pulton County, I.0 W3110 676, I.9 L. Ed,
                          1040; tho obligation      to do justloe  rests
                          upon all persons, natural and nrtificial;
                          and ii a county obt&.ns ffionoy ‘or proprty
                          of others without authority,       the law, in-
                          dependent of any statute,      will compel resti-
                          tutlon or oornponsation.      Under this rule,
                          Floyd coilntg will not be pcrxitted       to ye-
                          tain the bridges md not pay l"or them. Ap-
                         'pellant having declined to pay for the bridaes,
                          appellee will be pcwitted       to xemwe the
                          briaees and ell the mtcrinl        which it fur-
                          nished in their construction.        This is the
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     I ~onok&io George H. Sheppard, Page 3
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              only reiaedy the law affords uppellcc.    city
           ‘. of ,j%.rdwell v. Southern Engine & Boiler
              Yiorks , 139 Ky. 222, 113 S.Vf. 97, 20 L.R.A.
          ,.: (H.S.) 110; Floyd County v. Allen, 137 Ky.
           ,: 555, 126 S. ii’. 124, 27 L.R.A. (H.S.) 1125.”
             ;s     In the case of Lee vs. Board of Cormiosioners   of
        ZoiPoe County, 114 Fed., 744, the county commissioners had
        entered into four contracts    with the bridge coznpsny for the
        construction   of bridges across the streams in the county,
        The court held that    the commissioners weI’e unauthorized to
        enter into such contracts    and that such contracts  were void,
      : The question before the tour t was whether or not the bridge
     ! co~pxiy had the right to re;?ove the bridges and xhether or
     j not such bridges belonged to the county or to said cozoany.
        The court stated the proposition     and answered the same as
        follo~;~s:
                   nThe provisions  of the statutes of the
            state of Chio relating    to the purchase and
            erection   of bridges were not coz@ied     with by .,
            the county co.@soioners     before entering into
            the contracts    with the Canton Bridge Coagany,
            and it is conceded by both purties to this
            suit that they were invalid,      and no recovery
            could be had upon them, nor upon the warrants
            given in paylxent, for agy*p;rt     of the p~urchsse
            price of the bridges.           .
                  “T t * .
                   n* * 2.. But while the law affords no
            re:&dg, equity,     althou&   it will not enfmce
            the contmct     or create -a contract between the
            parties on sccount of the sccegtance ana re-
            tention of the property,      when the property is
            in existence,     and in the handn of the defendant,
            ~$11. not ;illolS it to retsin that to which it
            has no title    whatever, and grevcnt the owner
            from reclaim:nS     it.   The case presented by the.
            bill shorn no aoral turpitude       in the transaction,
            and, althouf;h the bridge cornpay should h;:ve
            ascertained    vihether each step provided by the
            st%tutes    hd   bean pyoRerly tciken, the 1~ placed
            upon the defendant the duty of takinS those:
            steps.    It wan necessary for it to co.@y with
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            ‘Honorable Geor$e.H.          Sheppard,   Page 4


                 ..~&ery provision   of the statutes in that behalf
                  :before entering into these contracts,     and it
                 ,.repi+esentcd to the bridge com?ang that it had
                .-YIO complied, and thue misled the bridge c~nigany
                   Into entering   into the agree.rsent, the carrying
                   out of .whioh alaced these bridges in the hands
                   of the defendant.    The complainant has no rexuedy,
                   at lm, rind, to deny him equitable rel.ief would
                   be to enforce the contract    on the part of the
                  .brid&e cornpony, rotI to allow the defendant to
                   repudiate its part of the same contract,      Andy’
                   thereby aopropriute,   without compensation,
                   property to whiah it had no legal or equitable
                   right . It VIESsaid by the’ federal supreme
                   court in the case of Eaxsh v, Fulton Co., 10
                   Wall, 676, 684, 19 I... Ed. 1040, 1049:
                        **The obligation    to do justice   rests. upck .’
                 all, person3, natural or artificial;       ana, if a
                 county obtains the money ‘or psopcrty OS others
                 vrithout authority,     the Law, indoyendent of any
                 statute,   will colm>el restitution     or oom~cnoa-
                 tion ,l
                       “If’ there wan any fraudulent purpose of
                 the bridge company, or connivanoe on its part
                 at the action of the defendant in disregarding
                 the previsions    of the statutes,    BO that the
                 purpose for which those provisions       were enaoted
                 should be thwarted, then neither the bridge
                 oompany nor this congl.ainant could come into a
                 court of equity    sod ask p.ny relief,   as they
                 could not cor*_e into court with olean hands;         :
                 and the relief    would be denied for that reason,
                 and.n,ot on the doctrine   of the yublio policy
                 0% the stzte.     There is no public policy reC-
                 ~gn;ni~.edby th.e courts Which allows ally person,
                 naturcl ct’ artificicl,   to take the psopcrty of
                 another, and appropriate     it to it3 own use, and
                 d&y to the person who, is ionoc.ent of fraud the
                 right to reclaim it: * * f.‘l
                           No rulejustice
                                     of   requires that  the State
      ,F    should retain this machinery cud never p.sy for ibLr If
            tho machinery can be rculovcd without injury to any of

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i-         &orable.~Ceo~~e                 X. Sheppard,   PaSe 5
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            the other,property     belonging to the State, as we are lnforzied
            and OSSUXI the ass6 to be, equity and natural justice would
            see;? to,rcguire    that it be retuxcd,       Under such clrcmstances
            to hoM.othcrwisc,       in effect,   would be to otiorce   the contract
          :as ag&lnst the Coa~any but to relieve          the State of its obliga-
            tions uilder it.     Slnco the cont:act.waa     void, tis held in our
            Opini6ti No. O-2505,     Y:O do not belicvo   that it can bo enforced
            asagainst     elthcr party, atd in equity the property should be
            and my be returned.         To that end it is our opinion that tho
            General Xansger of the Texm Prison Systo.3 my pemit agents
            of the company to entcr,the        pre;?ises and take its property,
            injury-or   dazeg.e to any property of tho State to bo Gtriotly
            guard63d~agRiQSt.
                                                                   Your8 very truly




           GX.:RS                        APPROVEDDEC
                                                   4.     1940


                                         ATTORNEY
                                                GENERASY
                                                      03 TR%AS
