Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GRAALD C. MANN ATTORNEY GENERAL

Honorable Eugene Brady County Attorney Hunt County Greenville, Texas

Dear Sir:

Opinion No. 045195 Re: Matter of the invalidity of a warrant ordered by the Commissioners' Court of Hunt County for certain of the rent for which the county had not legally bound itself.

Your request for opinion has been received and carefully considered by this department. We quote from your request as follows:

"March 15, 1939, the Commissioners Court of this county found it necessary to rent office space to house the V P A Commodity warehouse and the Department of Public Welfare in the county. They, at that time entered into possession of the required office space and had paid a rental of $100,00 per month from that time until March 1, 1943.

On February 1, 1943 the County Auditor by direction of the Commissioners Court sent by registered mail to the leesor a notice that they would readate the building prior to March 1st and would not thereafter be liable for rent therefor. Subsequently to the receipt of such letter the leesor appeared and notified the Commissioners Court and the County Auditor that he held a written lease signed by the County Judge of the County binding the County to pay the agreed rental of $100,00 a month until January 1, 1944.

*2 Honorable Eugene Brady, Page 2 "This lease was signed only by the County Juge and no order appears of record in the Minates of the Commisgioners Court authorizing the County Judge to set as agent for the Commisgioners Court in the execution of such lease. The Commisgioners Court did not have notice or knowledge of the existence of this purported lease until after it had notified the leegor that it would vacate the building. "An order appears on the Commisgioners Court Minutes April 15, 1941 as follows: "ORDER TO PAY R. B. LOVE RENT ON N.P.A. BOILDINO: April 15, A. D. 1941. Motion made by O. S. Hall, Commissioner, and seoonded by J. C. Patterson, Commissioner that the rental payments of $\$100.00$ per month to Rufus B. Love for rent on building used for N P A be ratified as per previous months and that warrant issue and be paid to the said Rufus B. Love in the amount of $\$100.00$ for rental on building for the month of April and that each month's rentals shall be a separate transaction and the Commisgioners Court shall authorize payment when due." "At the time such order was passed or subsequent thereto the leegor did not notify the Commisgioners Court of the existence of said lease signed by the former County Judge. "On March 8, 1943 the leegor appeared before the Commisgioners Gourt and discussed with them at that time the existence of his purported lease, signed by the former County Judge. The Commisgioners Court at that time expresaly stated to leegor that the lease was not binding on the County, for the reason that the County Judge, acting personally, had no authority to bind the County in such a matter, but they told him that from a moral standpoint they would like to help him until such time as he could seoure another tenant for

*3 Hegorable Eugene Brady, Page 3

the building. At that time the Comnissioners Court passed an order as follows:

"COMBIGGSONERS COURT IN SESSION MARCE 8, 1943. Motion made by J. G. Patterson, Commissioner, and Seconded by Allen Martin, Commissioner, that the rental of $100.00permonthtoRufusB.LoveforrentalonbuildingformerlyusedbytheDepartmentofPublicWelfareStampIssuingOfficeandCommodityWarehousebestoppedandthatnomoresheeksissuetohimforsuchpurposeeffectiveMarch1,1943withtheprovisothattheCountypayMr.Love$ 50.00 per month until such time as he may release or rent building in lieu of the $100.00 per month formerly paid and in no event longer than December 31, 1943."

"Pursuant to such order of the Commissioners Court the County Clerk issued a warrant payable to lessor on April 1st in amount of $50.00.TheCountyAuditorhasrefusedtoapprovesuchwarrantforthereasonhedoesnotthinktheCountycanlegallypaythelessorthesumof$ 50.00 a month as is provided in the order of March 8th quoted above. I would like an opinion from you as to whether or not, under the above stated facts Hunt County is liable to lessor for such amount.

"It is well settled that the County Judge by virtue of his office is not an agent empowered to contract on behalf of the County. 11 Texas Jurisprudence 636. In the present instant no evidence of the County Judge's authority to execute the lease on behalf of the County appears in the minutes of the Commissioners Court. Marshall vs. Simmons, 159 S. K. 89 holds that evidence to establish a contract binding on a county must be contained in the written proceedings of the Court. Under the above statement of facts I think it is clear that the purported lease executed by the County Judge, without authority of the Commissioners Court, was not binding on the County unless same was ratified by the Commissioners Court.

*4 Honorable Eugene Brady, Page 4 "There is no evidence to support ratification of the lease as it affirmatively appears that the Comnissioners Court in authorizing the payments of the monthly rental did not know that the lease had been executed and no acts of the Commissioners Court could amount to a ratification unless that court acted with knowledge of the circumstances. The order made April 15, 1941 quoted above shows clearly that the Commissioners Court was acting under the assumption that the rental agreement with leasor was a month to month agreement. "Assuming then that the purported written lease signed by the County Judge was invalid, and that such lease has never been ratified by the Commissioners Court the question remains as to whether or not the order of the Commissioners Court passed on March 8, 1943 and quoted above is a valid order and subjects the county to liability to the sum of $\$50.00$ per month. "At the time such order was passed Mr. Love was advised that the purported written lease was invalid and the Commissioners Court were all satisfied that such purported lease was invalid and they told Mr. Love at such time that they were passing such order not because of any legal liability on the part of the County but because they considered it a moral obligation to see that he did not lose anything, as he had noted in good faith in a ooppling the purported written lease. It has been held in this regard that the burden of proving that an order was passed by the Commissioners Court rests upon plaintiff claiming rights thereunder, Gordon vs. Danton County, &;S 3W 737. The County could not be astopped to set up the defense of the want of authority in making the contract as the other party to the agreement is not in the situation of one who has acted innocently or without knowledge of the circumstances. One who deals with the County is charged with notice of regulations created by the Legislature. Therefore in the instant case the leasor was charged with the knowledge that the purported written lease executed by the County Judge, acting personally, was invalid, 11 Corpus Juris page 640 .

*5 Honorable Eugene Brady, Page 5 "The order of the Commissions of Ilarch 8, 1943 in my opinion is based upon no valld consideration in law. Thie atatemant is based on the fact that the facta show that all parties underatod that at the time such order was passed that the County was not legally bound to pay the stipulated rent after March 1, 1943, the date the bullding was vacated, and this payment to the lessor would in rast amount to no more than a girt of $\$50.00$ a month, and the Commissioners Court cannot donate County property or funda. Llano County va. Jolngon, 29 SN p. 56. "In the order of Mareh 8 the lessor bound himself to do nothing, and in return therefor, the County was to pay him $\$50.00$ a month. In Mistrot-Callahan va. M.K.MT., 209 sK 775, Subsequant Appeal, 233 SN 160, it was held that a promise by a oarrler to pay a olaim for which it was not liable, not in the way of a compromise, was without consideration and therefor not binding upon the defendant. The position of the parties in the instent oase seams to me to be very much like that in the last oited oase in that the order of the Commissioners Court of March 8 is a promise by the Commissioners Court to pay a olaim for which it was not liable and not in the way of a compromise. "Under the facts as atated it is my opinion that the County Auditor should refuse to approve any warrants leaued under authority of the order of the Comnissioners Court of March 8 quoted above. "I will appreolate opinion from you on the above subject as soon as possible. . . ."

Conference Opinion No. 0-3099 of this departmont addresed to Honorable J. M. Allen, County Auditor of Hant County, Tazns, holds that the commissioners' court has authority to rent a building in which to atore food and alothing farnished by the Federal Government for distribution to Indigenta. This opinion also holds that the cormissioners' court has authority to rent office a paee for old age pension invesligatore, the W. P. A. and other Federal Government pro jects,

*6 Hororable Eugene Brady, Page 6

If such projects are engaged in the administration of relief to the unemployed and needy people of the county, we enclose herewith a copy of said opinion.

Sections 96, 97, 98 and 99, Counties, 11 Texas Jurisprudence, pages 633-4-5-6-7-8-9 and 40, read in part as follows:

"896. Formalities—Order of Court—Acts of Members.—A contract or agreement made by a county is valid and binding only if made under the authority of a resolution or order only passed at a meeting of the commissions' court and entered upon the minutes of such meeting. If, in a suit involving an alleged contract, the petition fails to ever that an order was passed by the commissioners' court embodying the terms of the contract, the pleading is subject to a general denurrer. No rights can be acquired as against the county by agreements with the individuals composing the commissioners' court. The members of the court are not agents with general authority to bind the public; they are public officials who have been granted certain powers which must be exercised in the way prescribed by the statute.

"The burden of proving that an order was passed by the commissioners' court rests upon a plaintiff claiming rights thereunder.

"897. Agents Appointed by Court—Authorization—County Officers.—The commissioners' court, in entering into a contract on behalf of the county, may act through an agent appointed by it; and the contract thus made by a daily appointed agent is binding upon the county. In a suit involving the contract it is necessary to show that the agreement is one which the agent was authorized to make, or that the county, with knowledge of the terms of the agreement, ratified it after it was made.

"Authority to bind the county by contract must some from the commissions' court acting as

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Honorable Eugene Brady, Page 7

a body: it is not sufficient that the individual comalegioners may have refrained from ob jeetion to the assumption of such authority by the alleged agent. It is not necessary, however, that authority be shown by an order actually entered as the minutes; the fact that an order was made may be shown by perol. "County officers, by virtue of their office. are not agents empowered to contract on behalf of the county; and when they asque to do so, no recovery can be had against the gounty upon the contract or for the value of the goods in the absence of ratification by the comalegioners' court. "898. Acceptance of Benefits of Unauthorized Contract-Estoppel. - Where the evidence shows that the commissioners' court has acted with knowledge of the olrounstances, and that the other party to the alleged contract has innocently placed himself in a situation which will cause him loss in case the contract is not sustained, it may be concluded that the county is bound thereby. The ratification or estoppel must be based upon action on the part of the comalegioners' court. But, while the county doubtless is bound by a formal order of the court, such order is not necessary to ratification. Ratification of a contract to purchase chattels is held to be shown by the fact that a warrant was drawn, although no bill of sale was over made, and no order entered in the minutes of the conalegioners' court embodying the sale. "A contract which the commigal oners' court is shown to have had authority to make may be binding by virtue of subsequent acts of the court; and, conversely, the gourt cannot bind the gounty with respect to a contract which it was not authorized to make. . . ." "899. -Implied Contract-Illlegal Agreements. Where a oounty has received benefits under a contract which is illegal in that it has not been made in conformity with the constitution or atatutes, liability is held to exist, also, by reason of an

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Honorable Eugene Brady, Page 8

Implied contract to pay the reasonable value of the benefits which the ounty may have received. The ounty may not be held liable upon an implied oontrast or quantun merult unjese the comnissionora' oourt was authorized to make the contrast sought to be implied; nor is the ounty estopped to set up as a defense the went of authority in making the contrast. The other party to the agreement is not in the situation of one who has aetod innocently or without knowledge of the circumatanoes. One who deels with a ounty is charged with notice of regulations created by the legislaturo; and a oustom which ignores the law cannot be invoked for the purpose of validating a transaction which is otherwise invalid. . ." (Undersooring ours)

Artiole 3, Sootion 52, of our State Constitution, provides in part as follows: "The Legalature shall have no power to authorize any oounty. . . to lend its credit or to grant public money or thing of value in aic of, or to any individual, assooilation or oorporation whatsoover. . . ."

We quote from the oese of Ilano County at al. v. Johnson et al., 29 S. 20. 56, (oited by you in your letter) as follows: ". . . The commissioners' oourt of the ounty oocupy towards its property a trust relation, and they oan only dispase of its property in the manner required by law and for purposes that are in keeping with the trust they represent. They have no right to donata the ounaty property or to dispose of it go as to virtually amount to a donation. . ." (Undersooring ours)

The lease signed by the ounty judge is clearly invalid and not binding on the oounty. Hor was such unauthorized lease over ratified by the comnissioners' oourt under the facte stated in your letter. The order of Hareh 8, 1943, shown in your letter, refleota that the building on said date was no longer used by the projects for which the oounty paid a rental. On March 8, 1943, the owner of

*9 831 Bonorable Eugene Brady, Page 9 the building had no valid olain against the ounaty by reason of the ounety judge's unauthorlzed lease-a lease never ratlified by the comnissioners' court and one which was not ratlified by such order of liarch 8 th-and consequently an said date there was no lecal asgount between the ounety and the owner of the building to audit and settle. The order of Harch 8, 1943, allowing the owner of the building certain sums against the ounety, olearly amounte to a donatlon which is prohibited by our State Constitution.

It ia therefore our opinion under the facts stated that you have correctly answered the question. We also wish to express our approolation for your exoollent brief in this matter.

Very truly yours ATTORNEY GENERAL OF TEXAS By Wm. J. Fanning Assistant

WJF:mp Enol.