Untitled Texas Attorney General Opinion ( 1942 )

..
Honorable J. D. Looneg
County Auditor
Bowle County
Boston, Texas
Dear Sir: Opinion No. O-4266
Re: How should the wages of men work-
ing by the month for the various
county commlssloners be set?
Your letter of recent date requesting the opinion
of this department on the above stated question reads as.
fbllows:
'%ow should the wages of nienworking by.
the month for the various commlssloners be set,
should it be made by each com+ssioner as be
see's fit 6Fshould it be made by an order of
the.Commr..Court and placed in the minutes of
the Court."
Artlcl~e2351, Vernon's Annotated Civil Statutes pro-
vides in part:
"Fzch commissioners court shall:
9,
. . . .
“3. Lay out and establish, change and dis-
continue public roads and highways.
“4.’ Build bridges and keep them in repair.
“5 . Appoint road overseers,and apportion hands.
“6 . Exercise general control over all roads,'
highways, ferries and bridges In their counties.
,,. . . . .II
'Title 116, Chapters~l-15, inclusive, Vernon's Anno-
tated Civil Statutes and amendments thereto contains many.
statutes with reference to roads, bridges and ferries'and the
powers and duties of the Commissioners' Courts relative thereto.
Honorable 3. D. ~LooneJi,
page 2' ~0-4266
Bowie County hasa population of 50,244 Inhabitants
accoralng to the.1940 Federal census. Article 6762, Vernon.'~
Annotated Civil Statutes provides In part:
"In all counties of this State, as shown by
the preceedingFedera1 census to contain as many
as 40,000 Inhabitants, the members of the Commis-
sioners' Court shall be ex offlcld road commission-
ers of their respective precincts; and under the
direction of the Commlsslonsrs’ Court shall have
charge of the teams, tools and machinery belonging
to the County and placed in their hands by said
court. . .'I
Article 6763, Vernon's Annotated ClvFl Statutes pro-
vides in part:
If
. . . Sala Court may employ any hands and
teams on the public roads-under such-regulations
and for such prices as they may deem best."
Article 6769, Vernon's Annotated Civil Statutes reads
as follows:
"The provisions of this subdivision shall be
cumulative of all general laws on the subject of
roads, when not in conflict therewith, but in the
case of such,confllct this law shall control.
This law shall not be In operation In any county
unless the Commissioners I Court thereof In their
judgment may deem It advisable, and then only by
an order of said Court when all of the members
are present, made at some regular term thereof, ac-
cepting the provisions hereof. Such order shall
be entered on the minutes of said Court, and shall
not be void for want of form, but a substantial
compliance of the provisions hereof shall be sufficient."
There 1s nothing In your letter that would Indicate
that the Commissioners' Court of Bowie County has accepted
the provisions of the above mentioned statutes which are eom-
manly referred to as the optional road law. In the absence
of any statement to the contrary, for the purposes of this
opinion, we asstie that the Commissioners' Court of Bowle
County has not accepted the provlslons of the optional road
law and are in no way operating under the same.
Bowie County, as well as & number of other counties,
is exempted frbm certain provisions of Chapter 3, Title 116,
Vernon's Annotated Civil Statutes, relative to road superin-
” -
Honorable J. D. Looney, page 3 o-4266
tendents at-id
theirduties as contained under the heading of
Road Sup.eri~tendents,~subdivision3 of Chapter 3, Title 116,
supra.
Article 6740, Vernon's Annotated Civil Statutes pro-
vides for the expenditure of the road and bridge fund of the
various dountles and Article 6741'provides:
"The Commidsloners Court may make and enforce
all reasonable and necessary rules and orders for
the Qorklng and repairing of public roads, and to
utilize the labor to b~e.usedand money expended
thereon, riotin conflict with the laws of this State.
Said court may purchase or hire all necessary road
machinery, tools, or teams, and hire such~labor as
may be needed in addition to the .laborrequired of
citizens to build or repair the roads."
It ls'stated in Texas Jurisprudence, Volt 11, p. 632:
"The authority of the com&sloners' cc&t as
a &vernlng body of a county to make contracts in
its behalf is strictly 1Fmlted to that conferred
either expressly or by fair or necessary implication
by the constitutlbn and laws of the State. . , . .
'The.commissioners' court must have authority
of law for its contract, and, if the authority has
been.given, a reasonable.construction of it will
be given to effect its purpose-~
"A contract or agreement made by a county is
valid and binding.only if made under the authority
of a resolutldn br order auig passed at a meeting
of the commissioners' court and entered upon the
minutes of such meeting. . No rights can be
acquired as against the co&ty by agreements with
the Individuals composing the commissioners' court.
The members of the court are not agents with general
authority to bind the public; they are public of-
ficials who have been granted certain powers which
must be exercised in the way prescribed by the statute.
f,
. . . . 0
It is further stated In Texas Jurisprudence, Vol. 11,
P. 635:
"The commissioners' court, in entering into a
contract on behalf of the county, may act through
Honorable J. D. Looney; page 4 ~0-4266
an agent:.appointedby it; and the contract thus
made by a duly appointed agent Is binding upon the
county. In a suit Involving the contract it is
necessary to show that the agreement is one which
the agent was authorized to make, or that the
county, with knowledge of the terms of the agree-
ment , ratlfled It after it was maae. .
..
"Authority to bind the county by coIltract
must come'from the commissioners' court acting
as a body; it is not sufficient that the indlvld-
ual commissioners may have refrained from object-
ing to the assumption of such authority by the
alleged agent. . . .'
In view of the foregoing authorities, you are re-
spectfully advised that ~lt Is the opinion of this department
that the wages or compensation of men working by the month
for the various County Commissioners should be set or made
under the authority of's resolution or order duly passed at
a meeting of the CommissionersI Court and.entered upon the
minutes 6f such meeting.
Trusting that the foregoing fully answers your ln-
quiry, we are
Yours very truly
ATTORNEY GmERAL OF TEXAS
By s/Ardell Williams
Ardell Williams
Assistant
AW:mp:wc
APPROTW) DEC lgj 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman