                                                                               144



     OFFICE   OF THE    ATTORNEY      GENERAL     OF TEXAS
                             AWlIN




Eonorable Riohard    s. xorrlr
county Attorney
Almrtrong county
OlaPd., hrrr
Dear 8ira




                                     r 14, 1940,    mqurrtlng      all opln-
                                      Qiertlonr    a8 8re h8roin     8t#trd

                     ter read8    in part a8 follows:
                      e Or SWL9tO 3111 567 Of the 46th h#3i8-
                     ding ?or     trarrllng    rxpenaer for County
                      OS orrtsln      oountlea,   rule4 unconstltu-
                        department In opinion No. o-2127, each
                                        IA county drew traveling      lx-
     pens,\r ior approximately        ten months.     After reoelring
     the above numbered      opinlcn whioh was approve4 by t!m
     Attorney   General April 15, 1940, ruoh paysent            of travel-
     iIt&  lXpelU* -8    di8OOntiZlUed.

           The   majority of autt.oritie8  apparently   hold that
     a atatute   is speeurmd to be oonrtitutlonal     until adjudged
                                                                             ’ rp


Ronorable    Richard S. Morris,       Page 2


     UnOOn8titUtiOMl   by a court of competent ?urI8-
     diction.   9 Tex. Jur. 467, Sea. SO; 16 C. J. s.
     277, Sea. 100; Tex.98 National Guard Armory Boar4 v.
     MoCrar, Atty.  General. 126 S. F. 2nd 627; ,;uIm v.
     JOhn8on, County Judge et al, 91 S. #. 2nd 499.

           ‘The majority  ot 8uthorltier  alma hold that a
     rtatute deolared unoonrtitution81    18 null an4 ~014 and
     Or no effect   a8 of the date of it8 enaotment. 10 CJS 287,
     S8o. 101; An4 generally   all act8 under an unconstltu-
     tional rtatute   are null and void. 16 CJS 290.
             *The questionI have in mind an4 upon rklch I
     have    been       to fin4 authorltle8
                     unable                   in point and there-
     fore wl8h to 8ubmlt to your department for an opinion
     Is a6 followe:   Ie the expenditure    of county fun48 for
     travelingexpenres of county oomlrsloner8        by virtue  of
     the above-mentioned   statute  of ruoh an illegal   nature
     a8 to require rrpapnent thereof at thle time?
             “Ii,
               8t t>l8 time, the oomml8rioner8 are not llablo
     for    return
                of the funds drawn under thr rtatute     in quer-
     tion, would they be liable for return thereor In the
     event a court of competent jurl8dlotIon    adjudged   the
     statute In question to be unoon8tltutional?W
            In our Oplnlon No. O-23 (Conference      O?lnlon 3032)
It wa8 he14 that Howe Bill 727 of the Regular Se88ion, Chapter
4M of the Cen8ral and Speolal Laws of the 45th Legi8lature,
an amendatory Act to Article    1055, Code OS Criminal Proce4ure,
was unoonatltutlonal.     Xrter the above mentioned 8tatute     wac.
held to be unoonstltutlonal    by thlr Department, In Opinion No.
O-142, ltwa8    held that counties   could not recover halt co&a
paid ofrlcers   under the law declared    unconstltutlonal.
             ;w quote rrom Opinion        NC. O-142 as follows:

            “It Is true the mark        ‘1Enorance     of the 1a.N ex-
     cuses no one’,    is f:enerallvaccepted.          The argument ‘5ae
     been made it should sp~ly in the case             of en unccnfititu-
     tional    etotute fcr the reason       WC!? an    Act stands   on tf.8
     same bee‘-s ae no law et all,         but there     are scme excep-
     tion0.w

              The general     rule   as stated   in Texas   Jurisprudence,
Volume 34,     psEe 473, reads       as f0110ws:
.




    Honorable       Richard    S. Eorrie,      Wge 3


                  “An ofrloer    who, without authority     of law, ool-
            lectr  taxes or exoesrlve      fees may be oompelled to re-
            lmburm the persona from whom the money was received.
            But Seem paid voluntarily        end with full knowledge of
            the faots,   though under a mIstUce of law, oannot, under
            art%led prinolpler,     be reoovare4.w      (34 Tex. Jur. 476;
            32 Tax. Jur. 739; Hirrhfirl4        v. Fort worth National Rank,
            03 Tax. 452;    18 S.  W. 745;    County of Galveston v. Gorham,
            49 TOX. 279,    303; City of Hourton V. Fearer,       76 Tax. 565,
            13 s. w. 266.)
                The Supreme Court or the Unite4   Stete8 in the cam of
    United State8 v. Realty Company, 163 U. S. 427, 41 U. S. (L.
    Ed.) 215, held knOWledge 0s the invalidity     0s an Act   of Congrees
    will not be imputed, in advance of any authoritative       declere-
    tIon to that errect,    to those who ere acting under its provi-
    8lOIll!, 60 ae to preclude then from having equitlea     baaed on
    their rolianor   upon the Aot,
               It ha8 been raid that e mlnit.terlal    orrioer     ha0 not
    the right to deolde upon the oonrtitutionalfty       or unoonatitu-
    tlonellty  0s  an Aot parred with all the formality        0s law.    It
    18 the duty 0s such ofrioer8   to execute an4 not to pas8 judg-
    ment on the law.    Volume 9, Texas Jurlrprudenoe,       468; Seseums
    v. Bott8, 34 TAX. 335 (holding en UnOOnstitUtiOWl           Aot regUlab
    lng the oolleotlon   of debts protected  clerks of courts acting
    under it).
               In view of the foregoing  authorltlrr,   you ere respeot-
    fully advised that it is the oplnlon of thin Department thet
    the oounty funds expended for traveling    sxpenees of county oom-
    mledoner‘r  by virtue of the above mentioned statute8     cannot be
    recovers4  by the county.

                 In reply to your second lusstlon,    ycu are further ad-
    vised    that  it Is our opinion that, in the event a court of com-
    petent   Jurisdiction    held the statute in questloh   to be uncon-
    stitutional,      the coml.?sloners  wald not be liable   for tte funds
    dram     under     the    stetute   held   to   be unconstitutional.

                     Trustlw      t??at the forecoiw        fully   easwers   your   in-
     Wry.      we are

                                                              Yours    very truly
                                                        .i’?TiN%Y C?ZNii!bLOF TXXAS
