Untitled Texas Attorney General Opinion ( 1947 )

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PRICEDANIEL
ATTORNEY G!z:IIHXAL
February 21, 1947
Honorable D. D. Williams opinion NO. v-40
County Attorney
Throckmorton County Re: Authority of the
Throckmorton, Texas Commissioners1 Court
of Throckmorton County
to sell personal prop-
erty such as worn out
road machinery with-
out first hevins aa-
vertised the same for
sale on open bids; and
authority or the Tax
Collector to make sum-
mery levy on personal
property as provided
in Artiole 7268.
Dear Mr. Williams:,
In your letter of Feb. 4, 1947, you present ror
the opinion of this department two questions. These are
as r0ii0ws :
“1. Is the Commissioners' Court
authorized to sell personal property
such as worn out road repair machinery
and like items without publicly edver-
tisin(Tthe same as being for sale and
selling the same at public auction?
(Each of the commissioners or this
county have~in their'charge worn out _~
and useless maahinery and tools which
they wish to dispose or immediately.
They went to know the proper and legal~
procedure ior doing so.)
-2. Can the tax colleotor of the
county levy on personal property which
is about to be removed from the county
before he has completed his tax rolls
under Art. 7268, Texas R. C. S. 1925,
(There are several drilling rigs in the
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Hon. D. D. Williams - Page 2 (V-40)
oounSy whiah l re 4uo to be mere4
in the near future. The taxes are
not delinquent on them since they
are only subject tc tamtim rer
the year 1947 in this aouaty. The
tax collector would like to know
wkotimr he would be premature in
Lie sotion if he attempted to levy
en 8 rig now ii the owners bhereer
sttrpt to mmove the same rmr this
ooaaty. Please send l o sll epiniena
whloh have been renders4 oenstwing
tbs above statute.)"
10 ah811 answer these questiou in the order
. strted.
Tko ~urls4i0fien oi’the Comis810aers1 Ceurt
is d*finti 18 tko lstter pert or sec. 18 or Art. v 0r
.the fWi8titutlen in the tollowing wsr48:
*T& lrounty aonlssisner so chosen,
wit& t&s couaty judge ss pmsldikg
ottleer, shall oompese the aouaty
l~srloners court, end shslf ex-
amleo suah powers aid jurlsdlotlon
*I** a11 oetity businesj as is doe-
hlne4 by this oonstitu%ion sn4 the
lawa et t&a St&e, or my be hore-
aftor prwarlbod .v (Daphaais oura)
It should be observed, hewever, that them is
an express l%BitatiOn upon the ~juriadiCti0B thus con-
ferre4, tlmt 18, it muet be noounty bUine880w The term
"oouaty b~lnesaa rhea14 be given s bros4 u&4 Llbenl
construatlea 80 as net to .detert the purpose of’the lsw.
Glenn .v. D&G ~o;tyG~;is 4’Am Islsnd Levy District,
(Cl+. A#p. o Moreover the ComwlssienersJ’
Courts lmr impliid iutkerity to do wkat may be necessary
In the exeml8e of the duties or powers expressly oom-
rerred upon thus. City Nations1 Bank v. ?realdio County,
(Civ. Appd) 86 S.W. 775.
In the osse of Stovsll v. Shivers (Corn.App.)
103 S. W. (2d) 363, Judge Germen, speaking for the Court,
said :
Hoa. D. D. Williams - rage 3 (V-40)
“The duty of the Commissioners
court is to transact the business,
protect the interests, and promote
the welfare of the county as a whole,
Among the powers conferred upon such
oourt by Artialo 2351 are the fol-
lowing: Tha power to lay out and
lstabliak,,okaaee and 4iscontlnuo
roads an4 highways, the power to
build bridgas and keap tham in m-
pair, and tho power to exercise gen-
eral control over all raads, high-
ways, ferries, and bridges in their
counties .n
Thus in the exeroise of the powers expressly
coaierred by statute, lr by reasonable inference there-
fr&m the commissioners * caurt undoabtedly has the power
to purchase suoh road machinery and equipment as are
raasonably nooe6aary to carry out the powers conferrhl
upan it by Art. 2351, as suggested above. It does not
nacasaarily rollan, howavor, tbt it has the sama power
to sell suoh property, and such powers as it does have
in thla respect must lrisa by necessary implication in
transactlag “oounty business .” Is the sale or worn out
and lntlqaat.4 parson81 property of the County by the
Coniaaioners~ Court voouaty basiness”? If so, and wa
think it la, than such powor is logally vested,in tha
Commlarlonars’ Court,
Such property whon erlginally purchased becomes
tha pmparty or the Ceunty, an4 not of the respective Com-
misaioaer~s precinct to which it night be allocated. Tha
Oouaty 1s la a sanse a pub110 corporation, and must,
therafora, racalva all its powars from the Constitution
an4 statutos which gave it.lxistoaco. Tm the Commissioncrap
Oaart, ua&er tho Coaatitutlaa aa statutes is committed
“oouaty bualaass” e Tharo is an ‘ansoatlaldirreraace ba-
twoon .tha rig&s er such public dorporatians raspacting
tim dispositloa or property and natural persons, the
latter having ln inherent right in disposing of their
pnparty, whllo pub110 corpomtions can saly acquire
and dispose ai pmporty by vlrtuo of coma poaitlva law,
lr lo eo sa a ry
irplicatian arising thorarram.
Therm will sot be found sny lxpmss statutory
pnriaiom ooatarrlng upon the Coarissioaors’ Cmurt au-
thority to 0011 personal prsperty bolongi&I to the County,
bat wa think that by necessary implicatien from the posi-
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EIon.D. D. Wllliama - Pa&a 4 (V-40)
tive law, which, under the Constitution and stetutes, is
conferred upon the Commissioners~ Court to transect the
business of the County, to protect its interests1 end
promote the welfare of the County aa a whole, that sound
public policy justiries the action or the conissieaersq
Court in selling worn out road mechinary when dotoriore-
tion has reached the point where it would no longer bo
the exercise of sound economic principles to centlnue
its use.
We are, thererore, of the opinion that it is
within the inpllod power of the Commlssioners~ Court to
sell personal property, such as worn out road meohinery
and likr items, when within the sound discretion ot the
Court it no longer serves a sound economic usa to the
County.
Since the stetute does snot speoifioelly eu-
thorize e selo of such property, but rests upon the
implied powers within which the Court is letherized
to act, It necessarily follows that no method Is pro-
vided as to the menner of disposing of suoh property.
WI think this rests within the reesonablo discretion
of the Commissionrrsl Court acting as l whelm, to pur-
sue the ~method that will preduco the highost price,
whether by private or public sale. We think either
method would be legal if pursued in good faith end with .
l view of prot,eotingthe’.intarestsof the County end
promoting its gonerel wlrare.
Your seoond quastion has heretofore beon answor-
ed by this department by opinion No. O-3480, a copy of
which is herrwlth enclosed for your inform&ion.
The Commissioners1 Court has ir-
plied authority to sell, either at private
or pub110 aelo, worn out end antiquated
road meohinery, when in the sound dis-
oretion of the Court suoh property ne
longer servos l useful purpose, consistent
.I.
Eon. D. D. Willluw - Page 5 (V-40)
with the loenoaio interests O? the
county.
Yours vary truly
ATTORN'SY GlCRE?&LOF TEXAS
AlPROVED
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