Case Information

*1 TEEIG ATIY~RNEY GENERAL OF TEXAS AUSTIN I~.TEXAR

Grover Sellers

Hon. G. A. Neal Opinion No. O-6183

County Auditor Re: Right of county Ellis County back Waxahachie, Texas excess salaries paid to County Attor-

ney.

Dear Mr. Neal:

In your letter of August 24, 1944, you propound the question for an opinion with respect to the above subject matter:

“Under an opinion of the Attorney General’s Department of several years ago, we paid a salary of $5500.00 to the District Attorney, but after we had paid our District Attorney for Fourteen months salary at $5500.00 per year, the Supreme Court ruled that we had no District Attorney, but County Attorney, that his salary was $4250.00 per year. finds that we have overpaid last Attorney

$1500.00. Does the law require the Auditor shall hold this amount out of his salary until paid, as it does in other cases due the County?”

You are respectfully advised is the opinion this department that you, as Auditor, are not authorized withhold any,sum from the amount due to a County Attorney as salary to reimburse the county for an over-payment previously made to such officer.

The principle law underlying is that where there has been a payment of money by one to another un- der a mutual mistake of law, the payment being voluntary, there can be no recovery back.

Chief Justice Roberts said in an early case: “When money is paid under a mutual mistake of law, the mistake of law, is no ground for recovering A11 persons are equally presumed to know the law, and in such case both parties are equally at fault, To admit ignorance of law

to be legally sufficient itself doing the

. - (o-6183) act, so that it should be said and held that the will did not concur with the act done, thereby relieving him from the responsibility for and the consequences of the act, would render the administration of the law impracticable; and hence the rule 1s founded upon a political necessity as well as upon public policy.“-- Galveston County vI Gorham, 49 Tex. at p* 303U 38 S.W.(2)

See also, Limestone County v. Robbins, In the quite recent case of Stegall, Sheriff, v. Mc- Lennan County, 144 S.W. (2) 1111, and quoting the Old Alcalde, Justice Tire said in affirming a judgment:

“We think the directed verdict must be sustained on two grounds. First of all, the plaintiff’s cause of action as pleaded, as well as the facts introduced support same, shows that the fees in question collected by him from the state and accounted by him to said county were done solely as the result of a mistake of law. As we view the matter, there was no mistake of fact. That is to say, the sheriff rendered the service that he claimed to have rendered on each of the warrants for which payment was made to him by the state, and his charge to the state therefor and collection of the items so charged was a mistake of law. It was likewise a mfs- take of law when he took such sums into c,onsideration in his accounting to and with defendant county. It ap- pears that our courts have uniformly held that an action does not lie in such cases. Limestone County v. Robbins, 120 Tex. 341, 38 s.w.2d point p0 582; Gfiliaft~ V* Alford, 69 Tex. 267, 6 S.W. 757; Taylor v. Hall, 71 Tex. 213, 216, 9 S.W. 141. We think in Texas is: ‘When money is paid under a mutual mistake of law 9 the mistake of law, is no ground for re- covering All persons are equally presumed to know the law, and in such case both parties are equally at fault, To admit ignorance law to be legally suf- ficient in itself

doing the act, so that it should be said and held that the will did not concur with the act done, thereby re- lieving him from the responsibility for and the conse- quences of the act, would render the administration and hence the rule is founded the law impracticable; as well as upon public pol- upon a political necessity, icya ’ Galveston County v. Gorham, 49 Tex. 279, point page 303 -It

The Supreme Court dismissed the application--correct judgment. *3 (0-6183)

There is appended to the case of Chrysler Light & P. (N.D.) 224 N.W. 871, 63 A.L.R, at p. a Co. v. Belfield, valuable annotation on the application of this rule to pay- ments made by governmental authorities. It is there said:

“The general that money paid under a mistake of law, rather than one of fact, cannot be recovered back, has been applied in many cases to payments made to priv- ate individuals or concerns by governmental authority, most of the courts being unwilling to make any exceptions in such a case.”

Some exceptions follow , among which the annotator has listed Cameron County v. Fox, 2. S.W.(2)

An examination of that case will show, however, that is not an exception at all. It is easily distinguishable in this, that the right of the from the rule we are discussing, county there recognized from the County Assessor a sum of money paid to cover the premium on the Assessor’s offi- cial bond, was allowed upon the specific ground that the Commis- sioners’ Court in the first place had no authority--jurisdiction-- to pay out money upon any such item. The Coamissionerst Court, therefore, was not acting as officers of the county, in contem- plation of law, for they had exceeded their powers under the statute, and assumed to act with respect to such matter, and to pay out the county’s money without any authority of law what- is made clear in the opinion which says: soever.

ltWe think invoked cannot be applied to the action of the Commissioners t Court in allowing claim, for the reason that the statute under which the same was allowed has no application to Cameron County, unless its total taxable valuations are in excess of $30,000,000.00. Unless the conditions stated in the statute existed Cameron County, the Commissioners’ Court was wholly lack- ing in power or authority to allow such claim. ***

~~Notwithstanding the payment to defendant in error voluntarily made, the same being without lawful author- was the amount so paid may be recovered in an action by ity, county.” Very truly yours ATTORNEY GENERAL OF TEXAS SEP 22, 1944 APPROVED I Sellers By /s/ Ocie Speer /s’ Grover ATTORNEY GENERAL OF TFZAS Ocie Spe er , Assistant OPINION COMMITTEE APPROVED:

BY: BWB, CHAIRMAN

OS-Hi :wb