Untitled Texas Attorney General Opinion ( 1966 )


Menu:
  • 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
    -2943-
    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
    . . .
    -2944-
    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
    -2945-
    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
    -2946-
    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
    -2947-
    

Document Info

Docket Number: C-607

Judges: Waggoner Carr

Filed Date: 7/2/1966

Precedential Status: Precedential

Modified Date: 2/18/2017