Untitled Texas Attorney General Opinion ( 1960 )

TEEA~TORNEY GENERAL
OF TEXAS
AUSTIN 11. TE-
WILL WILSON
A-- GXNERAL July 11, 1960
Honorable Jack N. Fant Opinion No. WW-881
County Attorney
El Paso County Re: Authority of the Commissioners
El Paso, Texas Court of El Paso County, under.
Articles 6078 and 6081e, V.C.S.,
to enter Into a contract with
the City of El Paso for the build-
ing, operation, maintenance and
management of a golf course and
clubhouse in Ascarate Park,
theretofore solely acquired,
managed and controlled by the
county, the validity of said con-
tract and liability of the county
to the city under said contract,
and authority of the county to ex-
pend county funds for improvements
paid for by the city under said
Dear Mr. Fant: contract.
In your letter of February 25, 1960, you request the
opinion of this Department on the following three questions,
which we quote:
"1. Was the Commissioners1 Court authorized
under Articles 6078 and/or 608le, V.A.T.C.S. to en-
ter Into a contract with the City of El Paso, for
the building and operation of a golf course and
clubhouse In Ascarate Park, a County Park thereto-
fore acquired, controlled and managed solely by the
County under the above statutes, whereby the City
assumed the responsibility of the operation, main-
tenance, management and conduct of the golf course,
clubhouse and concessions on the premises, with
each party to receive one half of the revenue there-
from after expenses?
"2. Was or is such contract valid?
"3. Is the Commissioners' Court liable to
the City or is it authorized to expend County
funds to the City for funds expended by the latter
for improvements placed on said golf course and
clubhouse, etc., by virtue o.fsaid purported con-
tract or otherwise?"
. .
Honorable Jack N.Fant, page2. (WW-881)
The facts stated by your brief are as follows:
The Commissioners' Court of El Paso County ordered an
election held to determine whether the County should levy and
collect a tax for the purpose of acquiring and improving lands
for county park purposes. An election was duly held under
Articles 6078 and 6081e, Vernon's Civil Statutes, on August 23,
1937. The voters approved and on October 11, 1937, the land
was acquired from the United States Government. The County then
built on the land what is now known as Ascarate Park. The park
was acquired, then operated, maintained and controlled solely
by the County until sometime around January 24, 1954, at which
time the City of El Paso and the County of El Paso passed resolu-
tions to the effect that it would be to the best interests of the
people of the City and County for the two to join together in
improving Ascarate Park by constructin therein a twenty-seven
hole golf course. On December 23, 195& , the City and County en-
tered into the following agreement:
(1
. . . NOW THEREFORE, in consideration of the
premises, the City and County agree as follows:
"(1) The title to the above property is
vested in the County of El Paso, subject to
certain restrictions and reversionary clauses,
and the County hereby agrees that it will not
use said park nor any part thereof In such a
fashion as to cause the same to revert to its
Grantor, the United States of America.
"(2) The City and County will cause to be
constructed a clubhouse on the golf course site
at a cost to be mutually agreed upon, and each
party agrees to provide one-half of the cost of
construction, Including architect's fees, at
such times as called for in the contracts for
such services and construction, and the City
and County agrees that the work shall be done by
contract let upon competitive bids.
"(3) The City agrees to take the responsi-
bility of the operation, maintenance, management
and conduct of the golf course, clubhouse, and
concessions on the premises, and the City further
agrees that It will account to the County once
each month for all receipts and disbursements in
connection with said golf course and agrees that
one-half of the revenue after expenses shall be
Honorable Jack N. Fant, Page 3. (W-881)
paid to the County.
II
. . .
“(7) This contract shall be revocable on
March 1 of any year, provided however that
three months' written notice be given to the
opposite party and at which time the parties
shall enter into and agree upon new opera-
tion provisions. . . .
This operating agreement was adhered to by the City and
County until January, 1960. On January 18, 1960, the Commis-
sioners' Court passed a resolution stating in effect that said
contract with the City would be terminated as of March 1, 1960,
and that the golf course would then be operated by El Paso County.
By letter dated January 22, 1960, the Mayor informed the Commis-
sioners' Court that the City would turn over the golf course to
the County as of March 1, 1960. At that time, the County was to
assume the entire management, control and financial support of
the golf course and clubhouse.
Art. 6078 "Section 2. All parks acquired by
authority of this Act shall be under the control
and management of the county acquiring the same,
provided that the Commissioners Court may by
agreement with the State Parks Board turn the
land over to the State Parks Board to be operated
as a public park; the expense of the improvement
and operation of such park to be paid by the county
and/or cooperative Federal agencies according to
the agreement to be made between such county and
the State Parks Board."
Art. 6081e "Section 3. All parks acquired by
authority of this Act shall be under the control
and management of the city or county acqulrlng
same or by the city and county jointly, where they
have acted jointly in acquiring same, provided that
the Commissionem' Court and the,City Commission or
City Council may, by agreement with the State Parks
Board turn the land over to the State Parks Board
to be operated as a public park, the expense of the
improvement and operation of such park to be paid
by the county and/or city, according to the agree-
ment to be made between such municipalities and
the State Parks Board."
Honorable Jack N. Fant, page 4. (w-881)
In Opinion O-905, dated December 5, 1939, by a former
Attorney General, this Department said:
"'Counties being component parts of the
State, have no powers or duties except those clear-
ly set forth and defined in the Constitution and
statutes. The statutes of Texas have clearly de-
fined the powers, prescribed the duties and im-
posed the liabilities of the Commissioners' Court,
the medium through which the different counties
act, and from these statutes must come all the
authorities vested In the counties.' Edwards
County v. Jennings, 33 S.W. 585 (Civ.App. 1695);
affirmed, 35 S.W. 1053.
"Article 6078 refers exclusively to parks
bought and maintained by a county, and Article 6080
refers exclusively to parks bought and maintained
by a city. Any authority for the purchase of a
park by the county to be maintained by the city must
come if at all from Article 6081e. Section 3 of
this latter article provides, specifically, that
park land acquired under its provisions shall be
managed and controlled by the city or county ac-
quiring same. If the park is acquired jointly by
the city and county, they must jointly control it.
No authority is to be found here for acquisition
by the county and management and control by the
city, or vice versa." (Emphasis added)
In Opinion No. O-2594, dated August 19, 1940, also by a ,
former Attorney General, it is stated that:
II It is the opinion of this
Department'that if a county park was established
under authority of Article 6078 and a natatorium
was constructed In said county park that the auth-
ority to manage and control said park and park nata-
torium would be in the county commissioners' court
and said court would have no authority to delegate
such control and management to any school district."
The authority of the Commissioners' Court as the govern-
ing body thereof to make contracts in its behalf is strictly
limited to that conferred either expressly or by fair or neces-
sary implication by the Constitution and laws of this State.
Roper v. Hall, 280 S.W. 289 (Civ.App. 1925, rehearing den.)
Honorable Jack N. Fant, page 5. (W-881)
"It is a well-recognized principle of
law
_ .~that where the Legislature prescribes a de-
finite, certain method of procedure for a city
or county, all other methods are bv imnllcation
of law excluded." Foster v. City of Waco, 113
Tex. 352, 255 S.W. 1104 (1923).
In answer to questions one and two, the contract which
thereby surrendered the management and control to the city was
a contract without the proper authorization and said contract
was and would be now invalid between the parties if the County
had not already reassumed its proper supervision and control.
In discussing the liability of the County to pay for the
improvement placed in Ascarate Park by the City, we uote from
the case of Sluder v. City of San Antonio, 2 S.W.2d 841 (Comm.
App. 1928), which states the principle that
II . . the rule thus firmly established
by the courts of this state rests upon the obliga-
tion of a municipality to do justice when it has
received money, property, or services of another.
Under such circumstances the plainest principle of
justice requires that it should not be permitted
to receive and retain the benefits of a contract
without paying the reasonable value thereof."
We quote from another case which says:
II
. . . that such a recovery is not in any
sense a recognition of the validity of the contract
which the fundamental law has made valid, but rather
the recovery is upon another principle of law which
imposes a duty and legal liability to pay the reason-
able value of the property or service of another and
retained under circumstances justifying the assumption
that there was an intention to pay." Austin Eros. v.
Montague County, 10 S.W.2d 71.8(Comm.App. 1928).
We have been unable to find a provision in the contract
whereby the county agreed to pay the city for any improvements
which the city placed upon the park, and in answering your
third question, it is not necessary to discuss the legality or
authorization of such a provision. From the other information
submitted, there is no Indication of circumstances.which would
give rise to an implied promise by the County to pay the City
for the improvements, nor have we discovered any indication
from the facts presented, either before said improvements were
made or during the time such improvements were being made, that
the City expected to receive compensation for the improvements.
Honorable Jack N. Fant, page 6. (w-881)
There are numerous holdings to the effect that where
benefits of a contract have been received that there may be
a recovery under quantum meruit. We think that the facts, as
presented, do not fit the legal requirements of the cases where-
in quantum meruit has been allowed in this State. An essential
prerequisite to any liability is the acceptance of benefits by
one sought to be charged, rendered under such circumstances as
reasonably to notify him that one performing such services was
expecting to be paid compensation therefor.
We are, therefore, of the opinion that the county is
not liable under the contract or under quantum meruit.
SUMMARY
El Paso County cannot lawfully delegate
the control and supervision of a county
park acquired under Article 6078 or Artl-
cle 6081e, Vernon's Civil Statutes, to
the City of El Paso, and such a contract
is invalid. The County Is not liable to
the City for the improvements placed in
such park under a contract where no pro-
visions were made for payment nor the
facts presented give rise to quantum
meruit.
Yours very truly,
WILL WILSON
Attorney General of Texas
APPROVED:
Opinion Committee William H. Pool. Jr. v
W.V.Geppert, Chairman Assistant
L. P.Lollar
C. Dean Davis
Marietta McGregor Payne
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
WHP:zt