Untitled Texas Attorney General Opinion ( 1944 )

.
Honorable Charles H. Theobold
County Attorney
Galveston County
Galveston, Texas
Dear Mr. Theobold: Opinion No. o-5890
Re: Authority of County Commis-
sioners to authorize an em-
ployee to approve payroll.
Your letter of recent date received in this office.
We quote the following from same:
"The payroll for the first half of February
was properly prepared but the commissioner did
not approve the same with his signature but sent
a pencil note to the county engineer to permit
the commissioner's foreman to sign the payroll
for the Commissioner. The county auditor refused
to accept such an approval and insisted that the
commissioner should sign the payroll in person.
"There is nothing to show that the commis-
sioner was physically incapacitated or that he
was ill or any reason why he authorized his fore-
man to approve the payroll in the commissioner's
name.
"I respectfully request that you render me
an opinion for the inoormation of the county audi-
tor as to whether a county commissioner may au-
thorize one of his employees, who is also on the
payroll, to avorove the payroll by signing the com-
missioner's name * * T." (Underscoring ours).
"I am led to the conclusion that this is one
of the personal acts that must be performed by
that official and cannot be delegated to another."
At the First Called Session of the 33rd Legislature of
Texas (1913) there was enacted a statute creating a road system
for Galveston County. This Act is known as "House Bill No. 73,
Chapter 10 of the Special Laws" enacted by such Legislature,
and became effective August 19, 1913.
Honorable Charles H. Theobola - page 2 O-5890
Certain sections of said Act, enumerated as follows,
provfde :
"Section 1. That the members of the county
commissioners court of Galveston shall be ex-
officio precinct road commissioners of their re-
spective precincts, and under the direction of the
county commissioners court shall have charge of all
the teams, tools, machinery and road implements
or appliances of every kind belonging to said
county, and it shall be their duty under such rules
and regulations as the said commissioners court
may prescrfbe, to superintend the laying out of
new roads, the making or changing of roads, and
the bullding or repairing of bridges. Each county
commissioner shall be entitled to receive from
said county for his compensation as such precinct
road commissioner the sum of $1500.00 per annum,
payable in regular monthly Installments of $125.00
per month, to be inclusive of other compensation
allowed them by law, and.for the faithful perform-
ance of his du'cfesas such precinct road commis-
sioner shall be liable on his bona given as such
county commissioner.
"i * * i i **
"Sec. 3. Each county commissioner shall have
control over all road overseers of his precinct,
and shall provide for each of them all teams, tools,
machinery and appliances deemed necessary in laying
out or working its roads In the precinct of such
commissioner. The receipt of such overseer shall be
taken for all such property turned over to him, and
when he has finished his work, or at the close of
his term of employment such overseer shall return
to said commissioner all teams, tools and property
coming into his hands."
Said above mentioned Act was amended by Senate Bill No.
286, Chapter 237 of the General and Special Laws of T;;;; it943)
enacted by the 48th Legislature,in Regular Session.
mendment became effective May 6, 1943, and added Section 2a pro-
viding for additional duties of the county commissioners, and
Section 2b providing for the payment of traveling expenses to
the county commissioners for certain duties performed.
The validity of said Acts was upheld~in our Opinion
Non.0-5328 which was written in answer to a query from your
present county auditor. As we presume you have access to such
Honorable Charles R. Theobold - page 3 o-5890
opinion, we will not enclose a copy herewith.
Said House Bill No. 73, under which Galveston County
is now operating, does not specifically provide for any re-
port to be made by the ex-officio road commissioners of money
expended or contracted to be expended for labor performed on
county roads, bridges, etc.
It is well settled, however, that a law~which con-
fers a power or imposes a duty upon an officer carries with
itby implication the authority to do such things as are
reasonably necessary to carry into effect the power granted
or the duty imposed. Thus power to do certain work or to ac-
complish a certain result, which cannot otherwise be accom-
plished, Implies the authority to employ such agents as may
be reasonably necessary to accomplish the work or purpose
specified, and to engage them for such,length of time as is
reasonably necessary. (34 Tex. Jur. 444)
Certainly, the filing of a claim for the payment of
such agents or employees for their services performed would
be one of the,r,easonablynecessary duties incumbent upon such
ex officio road commissioner.
Article 1660, V.A.C.S., 1925, provides In regard to
claims as follows:
"All claims, bills and accounts against the
county must be filed in ample time for the auditor
to examine and approve same before~the meetings.
of the commissioners court. No claim, bill or ac-
count shall be allowed or paid until it has been
examined and approved by the county auditor. The
auditor shall examine the same and stamp his ap-
proval thereon. If he deems it necessary, all
such accounts, bills, or claims must be verified
by affidavit touching the correctness of the same.
The auditor is hereby authorized to administer
oaths for the purposes of this law.'
'In the absence of a clear expression in the
statute to the contrary it will be presumed that
the Legislature intended that public duties which
require the exercise of discretion should be per-
formed by public officers." --Nail1 v'.State, 59
Crim. Rep., 484, 129 S.W. 630, Ann. Cas. 1912A,
1268.
In no event, in the case before us, could an agent or
emp~loyeeanorove the payroll, as such approval Is an exercise
of discretion.
,
Honorable Charles H. Theobold- page 4 o-5890
We will not discuss here whether same can be signed
with the commissioner's name by an agent under some circum-
stances, as that is precluded by the auditor's refusal to
accept the payroll so presented. In refusing to accept said
payroll, we must presume the auditor was not acting arbitrari-
ly but wasacting under the authority of law given him by said
Article 1660, supra, to require that the claim be verified by
affidavit which is a personal act that could be done only by
the county counnissioner.
Therefore, we agree with your conclusion as expressed
in your letter.
Ropingthe above fully answers your question, we are
Very truly yours
ATTORNEY GFXERAL OF TRXAS
By s/Robert L. Lattimore, Jr.
RobertL. Lattimore, Jr.
Assistant
RI&-MR-WC
APPROVED MAR 17, 1944
s/Gee. P. Blackburn
ATTORREY GENERAL OF TEXAS