Untitled Texas Attorney General Opinion ( 1966 )

A-wsIT\’ 159 S.W.2d 523
dE;a;~.App. 1942,berror ref.); Jones v. Texas Gulf S5ulphur <
p y, Houston Court of Civil Appeals (Dec. lb, 196 ).
Section 52 of Article III of the Texas Constltutlo.
provides In part as follows:
"The Legislature shall have no power to
authorize any county, city, town or other
political corporationor subdivision of the
State to lend Its credit or to grant public
money or thing of value in aid of, or to any
Individual. . . ."
In Attorney General'sOpinion c-506 (1965) we helc
Section 1 of House Bill No. 125 invalid because of this pro-
vision of our Constitution. We stated In said opinion that:
"As It would be In violation of Section 51
and Section 52 of Article III of the Constitution
of Texas for a county to pay a claim of a person
for a loss suffered by such person for some act
of the County Clerk or his deputies In the
performanceof their official duties, It would
likewise be a violation of the same constitutional
provisions for a county to pay the premiums on an
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Hon. Herbert Middleton, page 3 (c-607)
Insurance policy which had as .ltspurpose the
paying of a claim predicated on facts which
generated no county llablllty. In this same
connection It was stated In Attorney General's
Opinion No. O-1922 (1940) that:
11
t. . . It'is fundamental that the
county would have no authority to Insure
against a non-existent llabillty.~n
In this context the language of.the Court In Clotigh
V. Worsham 74 S.W. 350 ($ex.Clv.App.1903, error ref.) at page
354 Is most appropriate:
11 ,
. . . /T7he government Itself is not
responsible for the misfeasances or wrongs or
negllgences or omissions of duty of the sub-
ordinate officers or agents employed In the public
service, for It does not undertake to guarantee
to any persons the fidelity of any of the officers
or agents whom it employs. . . .I"
Statutes which are contra to the provisions of our
organic law are void. They are no laws at all and therefore no
rights may be acquired under them. Neither may acts or powers
performed under an unconstitutionalstatute be justified or
sanctioned upon the baals of Its provisions. 16 Am.Jur.2d
403-404 ConstitutionalLaw B 177; 9 Tex.Jur. 467, ConstltGtlona
Law B 51; 39 Tex.Jur. 21, Statutes 6 8.
"The foregoing rule has been deviated
from by this court where It was shown that
parties had obtained judgments In causes and
the Legislature had enacted what was called
Stay Laws, prohibiting the issuance of
executions thereon for a certain period of
time and where it was also shown that the
partieshad obeyed the law before it was
declared Invalid; and such rights acquired
In such judgments are not destroyed by the
period of limitation prescribed In such
laws. Phillips v. Lesser, 32 Tex. 741;
Sessums v. Botts 34 Tex. 35; Cravans v.
Wilson 35 Tex. $2; Id 4I3Tex. 324; Townsend
v. Q&an, 36 Tex. 548i'Delesplnev. Campbell,
52 Tex. 4.
II
. . .
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Hon. Herbert Middleton, page 4 (c-607)
"We think there exists a sound distinction
between a decision which holds that rights
acquired under a judgment will be protected from
limitation, where the parties obey a law before
It Is declared void, and a decision which holds-
a sale made under a void statute conveys no title
to the land. In the first Instance the legal
rights of parties already acquired are protected
In spite of a void statute; while In the second
Instance, If the sale of land under a void
statute were sustained, the partles would not
only have their rights already acquired protected,
but would also gain rights under a void s,tatute.
This court has held, and still holds, that
original rights obtained under a judgment will
be protected in spite of a void statute, but
It will not extend the rule to protect rights
acqulred.undersuch void statute." Sharber v.
Florence 131 Tex. 341 115 S.W.2d 604 (1938)
66f7of 115 S W 2a* see also Sessums v.
i&k, 34 Tex. 335'(i8$).
In the case before us, the sole authority for the
procurement of the policy of Insurance and the payment of the
premium by the county Is the statute which we have heretofore
held unconstitutional. The fact that the policy ln question
procured and remained In force for a period of time prior to
our holding cannot supplant the absence of authority to pay
premium. We can find no valid basis to support the payment
the premium apart from the unconstitutionalstatute, therefo
the exception to the general rule stated above has no applic
Where the statute which authorized the procurement
the policy and the payment of the premium Is unconstltutiona'
we are without power to raise an Implied contract to pay the
premium for the period the policy was In force; the Implied
contract would run afoul of the same constitutional prohlplt:
Edwards County v. Jennings, 89 Tex. 618 35 S.W. 1053 (1896)
Noel v. City of San Antonio, 33 S.W. 263 (Tex.Civ.App.1895,
error ref.).
In City of Tyler v. Texas Employer's Insurance Assc
288 S.W. 409 (Tex.Comm.App.1926) the Insurance corporation
brought a suit to recover unpaid bremiums on a policy of work
compensation insurance Issued to the City of Tyler covering
certain employees of the city. The Court held that the Workn
Compensation Act did not apply to cities; that Section 52 of
Article III of the Texas Constitution denied to the Leglslatt
the power to include cities within the scope of the Act or ac
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Hon. Herbert Mlddleton, page 5 (C-607)
the payment of premiums for a policy of compensation Insurance.
The language from page 412 of that opinion Is conclusive upon
the question before us:
"Viewed from another standpoint the Leg-
islature would have no authority to include
cities and towns In the act for the plan
necessarily permits such cities and towns be-
coming subscribers to grant public money or
thing of value In violation of the section of
the Constitution already quoted. The pur-
pose of this wholesome provision is to pre-
vent the gratuitous appropriation of public
money or property. The purposes for which
. public money may be expended are clearly
defined by law, and a grant In aid of or to
any Individual, assoclatlon, or corporation
whatsoever Is not one of these purposes, but
Is expressly forbidden. When the Workmen's
CompensationLaw Is analyzed and fully un-
derstood, It Is clear that to permit a munlcl-
pal corporation to become a subscriber to the
Insurance association therein provided authorizes
It to grant public money by way of premiums
for Insurance In aid of Its employes to whom
It is under no legal llablllty to pay. As already
pointed out, the act contemplates compensation
In the absence of any legal llablllty other than
the acceptance of the plan. Cities and towns
have no power to appropriate the tax money of
Its citizens to such a purpose. It Is at best
a gratuity, a bonus to the employe. The city
might as well pay his doctor's fee, his grocer's
bill, or grant him a pension.
"It may be conceded that those employes of
a city engaged In industrial work of a proprietary
nature are as much entitled to the compensation
provided by the act as are the employes of strictly
private corporations. This is not the question.
The question Is, Has the Legislature power, In
view of our constitutional provisions and
limitations,to authorize cities and towns to
make such insurance for their employes? We have,
with much hesitancy but after due deliberation
concluded that the Legislature has no such powei,
and that, if It had attempted to exercise such
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Hon. Herbert Middleton, page 6 (c-607)
power, Its act would have been void. The wldsom
of the Constitution Is for the people. Expediency
will not justify a violation of Its provisions."
In our opinion, Taylor County may not pay the short-
term cancellation premium for the policy of Insurance procured
by the County Clerk. The policy insured against a llablllty
for which the county was not responsible; the premium would
purchase nothing for county purposes. Under such circumstances
the payment of the premium would be an unauthorized grant of
public money proscribed by Section 52 of Article III of the
Texas Constitution. See also Georgia Casualty Co. v. Lackey,
294 S.W. 276 (Tex.Clv.App. 1927, no writ history).
SUMMARY
Section 52 of Article III of the Texas
Constitution prohibits the payment of a short-
term cancellation premium for a policy of
insurance procured by the County Clerk of Taylor
County pursuant to Section 4 of Article 1937,
Vernon's Civil Statutes.
Very truly yours,
WAGGONER CARR
Attorney General
WGS:ml
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Paul Phy
Kerns Taylor
John Reeves
John Banks
Malcolm Quick
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
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