Case Information
*1 ;-. . ATTORNEY GENERAL OF TEXAS
OFFICE OF THE AUSTIN , / Honorable II. A. Hodges
County Auditor
WIlliamson County Georgetown, Texas
Dear Sir: of your letter of re- cent date reque department upon the above stated an quote from your letter as follows:
ed to you for an opin- and several of the Rules K. Doak of Taylor, Texas, r of Births and Deaths by ealth and approved by the the City Clerk of s Registrar. The ty with Ei'popula- through June, his bill each amount due him ime he registered 1135 births and deaths $566.50. Dr. Doak has submitted to the Commissiohers for a total consideration of Court of Williamson County a bill for $566.50, under date of August 26, 1943, and a certified copy from Dr. W. A. Davis, State Registrar of Vital Statistics, certifying the number of births and deaths for each month from June, 1941, through June, 1943. This Is *2 Honorable ,H. A. Hodges, page 22
the first demand made by Dr. Doak for the payment of these Birth and Death Certificates over the period from June 17, 1941, through June, 1943.
"Dr. Doak, at the end of ea,ch month, from June, 1941,~through June, 1943, submitted his bill to the City of T@lor and this bill was paid promptly by the City of Taylor.
"The city of Taylor does not have any ordinance providing for the Clerk or Secretary for the City of Ta lor to perform the duties of Registrar. In June, 19 f 1, the City Clerk of Taylor reflsed to act as local Registrar a,nd the State Board of Health, with the approval of the Mayor, appointed Dr. ,Doak as the 1 Local Registrar.
"Dr. Doak has been paid by the City in full and is now requesting the County to pay him for the same Certificates for which the City has already paid him.
It is the understanding between Dr. Doak a.nd the City of Taylor that If the County pays Dr. Doak the $566.50 he will endorse the check to the City and the money will be deposited to the credit of the City of Tay- lor. It is further to be observed that Dr. Doak in performing the duties of Local Registrar has each month, from June 17, 1941, through June, 1943, send a copy of the Birth or Death Certificates to the County Clerk for recording as provided by 1a.w.
“The two questions which I would like for YOU to answer are:
"'Is Williamson County, under the above statement of facts, liable to Dr. E. K. Doak the Local Regis- trar, duly.appointed by the City of Taylor~, for Birth and Death Certificates, prepared by him and forwarded to the County Clerk of Williamson County from June 17, 1941, through June, 19431'
"Under the above statement Of facts, is Wllllam- son County liable to the City of Taylor for the Certl- ficates which the City of Taylor paid Dr. Doak for re- cording during the period from June 17, 1941, through June, 1943?~"
Rule 53a of Article 4477, Vernon’s Texas Civil Stat- utes, provides as follows:
“That each Local Registrar shall be,paid the sum of Fifty (50) Cents for each birth and death certi- ficate properly and completely made out a.nd register- ed.wlth him, and correctly recorded and promptly re- turned by him to the State Bureau of Vital Statistics, as required by this Act, unless such Local Regis- trar shall be acting as Registrar of Birth and Deaths in an incorporated city where the compensation of the RegSstrar is otherwise fixed by city ordinance. “The State Registrar shall annually certify to the, County Commissioners Court orCounty Auditor, as the case may be, the number of birth and death certi- : ficates filed by each Local Registrar at the rate
fixed,herein, and provided that the State Registrar ’ may renders such statements monthly or quarterly, at the discretion of the State Board .of Health, and the Commissioners Court or County Auditor, as the case may be, shall audit such statements and the County ’ Treasurer shall peg such fees as are approved by the
Commissioners Court or the County Auditor, at the time such statement Is issued.
“And provided further, thatthe Justice of the Peace, City Clerk or Secretary, and the appointed Local Registrar shall submit to the Commissioners Court or County Auditor, as the case may be, a true s.nd accurate copy of each birth and death certificate filed with him, and such copies shall bear his, file date and signature and shall be deposited in the County Clerk% office. The County Clerk shall be paid for indexing and preserving such records, such compensation as may be agreed upon by the Commlsslon- ers Court.”
This department in Opinion Ros. O-3874 and O-4583, copies of which are’enclosed herewith for your convenience, ren- dered~ its opinion as to the’proper construction t0 be placed UP- on the above quoted rule of Article 4477, supra. As pointed out in these enclosed opinions the county, In the absence of a city *4 ordinance providing for compensation of these local registrars, was the political subdivision liable for payment of the prescrib- ed fees of such registrars.
The city of Taylor accordign to the information fur- nished us had not passed an ordinance providing for compensa- tion of Its local registra.r. Therefore, from June, 1941, to June, 1943, the local registrar could not have legally demanded payment of his fees from the City of Taslor and upon such a presentation of his claim the city could have rightfully turned itdown. The registrar could have, however, by performing his duties in accordance to the a~ppropriate provisions of Article 4477, supra, lawfully
demanded payment of his claim for fees from Williamson County, since the county was actually Indebted for the performance of these services. The query then arises whether or not the fact the City oft Taylor did pay for the ren- dition of these services by the local registrar seemingly out of its own volition alters the situation in any wa.y.
The Texas courts have held that pa.yment of an obliga- tion by a third party, although without the debtor's request, if accepted as such by the creditor, discharges the obligation so far as the creditor Is concerned. Holland v. De Walt, 223 3. W. 217, writ of error dismissed; General Banking and Casual- ty Ins. Co. v. Moseley, 174 S. W. 1031, reversed on other grounds, 110 Tex. 529, 222 S. W. 961. According to the facts furnished us, It cannot be tenably contended thatthe local registrar did not accept the fees from the City of Taylor in full and complete payment for the services he rendered in that capacity. The registrar cou,ld not now present hisclaim to Williamson County and contend It was due and unpaid when In fact he had been fully compensated therefor. Thus, so far as Williamson County and the local registrar are concerned, any obligation existing between them has been extinguished and complete- ly discharged.
We further do not believe the City of Taylor has any claim against Williamson County for paying these fees. As pointed out, the citY could by ordinance be liable for these fees. The only claim the city could have would be by subroga- tion; that is, claim any rights the registrar ma,y have had against the county. It is well settled that the doctrine of subrogation may not be Invoked by a mere volunteer who has paid an obligation of another without a legal obligation to do SO *5 .-. .
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and an absence of compulsion or to protect an existing right.
Houston v. Shear, 210 3. W. 976, 'writ of error dismissed; First National Bank and Trust Co. v. Vordeman, 188 3. w. 695, af- firmed 221 S. W. 685; Federal Reserve Bank of Dallas v. Smylie, 134 S. W. (26) 838. The City of Ta,ylor voluntarily paid the local registrar without a legal obligation to do so, was not forced to do so by compulsion, nor to protect any existing right. In other words, the city vo)untarll~ paid the registrar in the true sense that the word 1s used.
It is therefore the opinion of this department that Williamson County is not liable to the local registrar or the City of Tagldr for re lstratlon fees accruing between June 17, 1941, and June 30, 19 3, but will be liable to the local regis- &
trar for fees accruing after June 30, 1943.
Very truly yours ATTORNEY GENERAL OF TEXAS BY Robert'?%% . Assistant ROK:db
Enclosures
APPROVED OCT. 5, 1943
/s/ Grover Sellers
FIRST ASSISTANT
ATTORNEY GENEiRAL
APPROVED
OPINION COMMITTEE
By /s/ B. W. B., Chairman