Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
nonar&ble Jo&n T . tlutohioon
countyAtbornq
l&Ear COulaf
Plbri8, Eexns
and wthority Of
refund suoh t-sea COl-
to original payers.
cominicatioti, which
we quote from
Description OS Property
Thlr i8 to cortlfy that i hove uam.lnecl the Tax
llecordo of &MP CWnty, f(lxas, ra8 oo fw no I
con ascertain all Couatf,’State 81~3 School Taxes
othi Aesamswmt8 bole been paid on the *bore de+
&r&bed property to and including the year 1949
lnd 811 County and state Tax?8 and A``e``cmts
hare been paid to and inaludlng the year with
the t0110w1ng exceptiona,
.. GC?4
uonorable John T. uutchlaon - page 2
T ColleOtor, Laam County, T-am.
i5; Deputy.
Such ltatementa are signed '0. w. Ieodard, Tax
Aaaeaaor4olle&or of Lamar County’ or ‘0. 1.
Ioodard, TM Aareaaor-Colltotor of Lamar County
w m?puty.
*The Tax Aaaeaaor-Colleetor of L8mnarCounty
haa lurniahod such Tax Statementa to meatbermot
,the general pub116 requesting ame* without
charge, however, 8 tee of fifty oenta (aof!), For
eaoh auoh statement laaued, haa been aollected
by the Tax Aaaeaaor-ColleCtOr ot taarr County
from iadiriduala engaged in the 8batraot bud-
nesa* The lbatraat aompaniea, rpproxirutel~ l/3
of the tI&e, charged their euotomera one (ti.00)
dollar for ,meh certificate. Uowevc, z/3 of the
abatrwta to which such certiflaatea mere rttacb-
ed no ohbrge uaa wde by the abatrrat yaopany for
attaching such certificate, the abatraetlng COB-
pauy loring or obaorbing the amount paid for nueh
certificate.
‘On or about Jagaary 1, 1944 the Tax Aaaeaaor-
CollectorOS Lawr County tiled, with the County
Auditor of Lomar County, hia raaaunt ahorlng that
he had oollected, for the 18uUtOe ot ueh atatc-
menta, the urn of aeven hundred few ($?tM,f~o)dal-
lara, from April 1, 1941 to Deeember I, loI?, which
mum or money raa,ruxd+ed by the Auditor and was
deposited to the ~8ecount ot Lamnr County.
*The abatroot aompanlea enga@d in the buai-
neas OS Eaklng abetracts in Lamar County hare
riled aith tbe Comiaalonerga Court t alrim lor
the refund of much Toes, aIlszing th8f meh fees
rere illegally collected wlthout authOrit. of law
mtxi requesting repaysent of' such fee8 to th@m by
the Coraiaaioner* a hurt.
*The Coaiiaaloner~a Court baa requested my
opinion &a County Attorney rith retcrcnoe to the
following qucationa, aubatanti811``
..
605
Honorable John T. hutohlson - page 3
.
'1. Is the Tax Assessor-Collector at Lamar
County, Texas, authorized to charge and collect
a tee of fifty aents (no{) from persona engaged
in the abstract business for the issuance of such
Tax Statements am hereinbefore met out?
s2. Is the Tax Assessor-Colleotor of Lamar
County required by law to account for and pay
over to Lamar County the fees Collated by him
for the Issuance of such Tax Statements?
l3.Is the Commissloner~a Court of Lamar
County authorized to refund, to the persons or
firms originally paying euch fees, the fees col-
leoted.by the Tax Assessor-Collector of Lamar
County from abstractors for the issuance of such
Tax Statements upon their presenting a olrlm to
the Coxnuiasioner~sCourt for the refund of such
Pees?.
According to the 1940 Federal oenaua, Lamar County
has a population of 50,426.
In the case of Nueoea County v. Currington et al,
(Sup. Ct.) I62 S. Yr. (2) 687, wherein Nueoea County sought
a money judgment against its tax assessor and collector for
the amount of certain fees or charges collected by such as-
sessor and collector for the issuance of tax certificates,
aubstantlally the same (Lathe *tax statementas about which
you inquire, It was held that the tax assessor and collector
acted in her official capacity In issuing the tax oertifl-
catea and reoeivlng therefor the fees sued for by the oounty;
also, that it was her duty to aocount for and pay same into
the county treasury for the benefit of the Offioer Salary
Fund, and that having failed to do so, and having breached
her official duty in that respect, both she andher surety
became liable to the county therefor. However, said opin-
ion held further that unless a tee is provided by law for
an ottlcial service required to be performed and the amount
thereof fixed by law, none can lawfully be charged therefor.
Artiole 72460, V.A.C.S., was amended In 1941 to pro-
vide for certain tees to be charged for the Issuance of such
tax certifioate in countiee containing a population of fire
hundred thousand (M)O,Ooo) or more, aocording to the last pre-
ceding or any future Federal census , but re have found no fee
606
gonorable John T. gutchison - page 4
fixed by law for such acrvioea as provided in Article 1224,
'g&.8., 1925, in counties ot a population of leas than tire
hundred thousand.
Therefore, in view of the above, we answer your
first two questions as follovs:
Quoatlon No. 11 lo.
Question No. 28 Yes.
In the case of Stegall, sheriff, T. McLennan
County, (civ. Apps. -- wit dims., opinion oorrect) 144
5. Y. (2) 1111, wherein the sheriff sued the county for
excess fees paid the county , the following rule of lax
ram announoed;
"@Ien money 18 paid under a ItutU sdS-
take of law, the mistake of law, in and ot
itself, is no ground for recovering it back.
All persona are equslly presumed to liiro+,the
law, and In such case both parties are equal-
ly at fault, and equally innocent of wrong
done. l'oadmit ignorance of law to be legal-
ly recognized as a fact sufficient In itself
to pervert the will of the parties doing the
Lot, so that it should be said and held that
the will d.id not concur with the ect done,
thereby relieving him from the responsibility
for and the oonaequences of the act, would
render the edministrations of the law imprao-
tiaable; and hence the rule is founded upon a
political necessity, as reli as upon public
policy. l * +. &rely, this record discloses
that each of the acts done by Sheriff Leslie
Stegall and kcLcanan County in connection xith
the Eatter in question was done voluntarily,
without compulsion or duress under a mutual
mistake of law. cil l.fl
It is the opinion of this department that under
the facts submItted by you the payment of the fees to the
Tax Aaaeaaor-Collector ram done voluntarily and without oom-
pulslon or duress under a mutual mlatake of law, and re
answer your Qeatlon No. 3 in the negative.
b’ ’
nonorable John 1. ilutchlson- page 6
Trusting the foregoing satisfactorily answers
your questions, re are
Very truly yours
ATTOHNEX GENEUL OF TEXAS
m
Robert L. Lattlmore, Jr.
Assistant
RLL-biR