             THE    ATBXB&EY             GE~EBAL
                         UD)F TEXAS
                      AUSTIN,   T-R     18711




Hon. Ned 0. Wallace
Assistant District Attorney
Conroe, Texas
Dear Sir:                  Opinion No. o-1014
                           Re: Can IndependentSchool Dir&riot
                               Board award a contract fop the
                               purchases of material to be
                               bought from a member?
Your request’for an opinion bn the question as ia herein stated
has been received by this offdce.
Your letter reads in part a8 follows:
     “Question: Under our laws governing Independent
     School Mstrlcts, can the School Board award a
     contract for the purchase of material to ,bebought from
     one of the members of the Board who Is regularly engaged
     in the selling of eaid material?”                    :
We quote from Texas Jurisprudence,‘Vol.37, page 864, as follows1
     “School districts are quasi public corporation. It is said
     by the courts, particularlywith inference to Independent
     districts, that they are of the same general character as
     municipal corporations;in other words, ‘quasimunicipal
     corporations,f~which~derive their powers by delegationfrom
     the State., They are state agencies, erected and employed
     for the purpose of administeringthe state’s system of
     public schools.” Love vs. City of Dallas, 40 SW 2nd 20;
     Thompson vs. Elmo Ind. School Dist., 269SW 868.
As is the rule generally,Xhe trustees of independent districts
possess only the powers expressly conferred by law or, necessarily
Implied from the powers conferred. Originally, the statute
Article 2758, R.C.S. granted to trustees of Independentdistricts
the same authority, as regards to the 6stabllshmentand malnten-
,and.e
     of schools, that is conferred upon the governing bodi& of
incorporatedcities and towns; and in determiningthe authorityi
of such board the courts have applied the same rule as applied to
municiljalcorporations. As amendad,’the statutes  merely give the
authority conferred by law upon inaepen’dentschool districte.
Hon. Ned G. Wallace, Page 2   O-1014


We quote from Texas Jurisprudence,Vol. 37, page 943, a8 follows:
    “A quasi pub110 corporation,such as a school district,
    which owes special duties to the public, may not enter
    into any contract that is not expresaly.authorlzed by
    law.... An independentdistrict is a municipalitywithin
    the meaning of the constitutionalprovision (Art. 3, Sec. 53)
    providing that "The Legislatureshall have no power to grant,
    or to authorize any county or municipal authority to grant,
    ....nor pay, nor authorize the payment of, any claim created
    against any county or municipalityof the State, under’any
    agreement or contract, made without authority of law."'
The members of a board of an independentschool district are elected
public officers and the constitution and statutes prohibit various
officers deainnated therein from being intersted in certain DUbliC
contracts. &tracts in which the officer who made them may-have
a personal interest, and contracts giving an officer a personal
interest in any official act to be done by him are clearly con-
trary to public policy and void.
In Vol. 44, Corpus Jurls, page,%, we find the following rule:
     "It la the general rule that municipal contracts In which
     officers or employees of the city have a personal pecuniary
     Interest are void."
                                                               r:
We quote from Corpus Jurls, Vol. 56, page 485.as follows:
     % some jurlsdlotlonaatatutes'provldethat a member of
     a school board or a school officer cannot/on behalf of the
     school district or other local school organizationenter
     Into a contract In which.he has an individualinterest, and
  .~ that In such case the contract is void. Aside from express
   /statutory enactment, such a contract is against public policy,
     and In some jurisdictionsit is held that a contract so
     entered into is void, but in other jurladictlonasuch
     contracts are merely ,voldable,and~are binding when properly
     ratified."
In the,caae of Royce Ind. School'Diat.vs. Reinhardt, 159 SW
1010, the Court of Civil Appeals for the Dallas, District held that
since the board of trustees is a creature of the statutes that It
has only such powers as are conferred upon it and such implied
powera a8 are necessary,to execute such 'expresspowers.
yh; departmentheld in a conference opinion In Rook 50, page 411,
    :
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                                                          ,


    Hon. Ned G. Wallace, Page 3,    O-1014 ‘I


            “A contraat for -the sale of supplies.to~a State Normal
            School made by a corpoI$tlon,the President and General
            Manager of which ie President of the State Normal School
            Board of Regents Is contrary to p’ubllcpolicy and void.
            “Statutes’prohibitingofficials from cont&atLng on behalf
            of the State~with themeslves are but declaratoryof the
            common law;
            “That a member .oPan official‘boarddid’not castshis vote
            In,:favor of’letting the contr&t to a corporationIn which
            he was a 8tdckholderwould not relieve the transactionfrom
            the operation of the rule.”
    We quote from Storey on Agenc.y,Sec.-211, a’sfollows:
            “An agentto sell cannot become the purchaser,thie.
            principal is believed to pervade both the civil and common
            law jurisprudence;”
     In di.scuaslngagreements pending to official aorruptlon or injury
     to the public, Elliotls~Commentarieson the Law of Contracta,
    ,,Vol.2; Sec. 706, states the rule in this-languageas follows:
            “Agreementswhich t.endto’official corruption or Injury
            of the public service may not be entered Into either directly
            with the official or with a third person who is to bring
            improper lnfkaence to bear upon such official. The courts
            will unheaitatlqly pronounce illegal and void, and being
            contrary to public policy, those contract8 entered into by
            an officer or agent of the public which naturally tend to
            induce suah officer oragent to become remiss in-his duty
    +       to the public. Nor 3.8it necessary for the officer or:agent
            to bind himself to violate his duties to the public in order
            to bring such an agreement within ti)eoperation of the rule.
            Any agreement by which he’places hlmaelf or is placed in a
            position which 5.einconeietent~withhis duties to the public
            and ha8 a tendency to induce hlm to Violate such duties, is
            clearly illegal’and void.w
    The following section deal&g,wkh      intereat of a public official
    is in part as followa:
            ‘tinderthis principal, contracts‘forservices or mateHa
            In which public officers have an Individual Interest, are
            prohibited. Independently’ofany statute or,precedent,
            upon the general,prlncipalOS law and morality, a member of
            an offlcial,boardcannot contraot with the boo@ of which he
            la a member.’ Davideon vs. Gllford Company, 152 N.C. ‘3436;
            State vs. EWindell,156 Ind. 648.
  Hon. Net30. Wallace, Page 16,04014


We quote from the case of Cheney vs. Unroe, 166 Ind.;550, a8
follows:
     “It is a well ~establishedand salutary doctrine, that he
     who Is entrustedwith the business of others cannot be allowed
     to make such buslness~anobject of pecuniary profit to himself.
     This rule 40s~ n,o?depend .r?n
                                  reasoriing.technlcalIn Its
     character,and la not local in Its application. It ia based on
     principals of reason, of morality and of public policy. It has
     its foundation 1n:the very ?nnstltutionof our nature for It
     has authoritatlvely’~b‘een.~declared
                                       that & man cannot serv@ two
     masters, aMi& recognizedand enforced wherever a regulated
     system of j.urieprudenceprevails.”
‘Inthe case of the City of Fort Wayne vs.~Rosenthal,74 Ind. 156, it
was hel.4that an employmentby a board of health of one of its
members to vaccinatepupils in a public school is void. The court
said:
    “As agent, he cannot contract with himself personklly. He .
    cannot buy what he Is employed to sell. If employed to
    procure a aervlce to be done, he cannot ~hlrehimself to do it.
    ~~;t~prlne    $8 generally ap@llcable to’prlvate agents and
            * but to public offioere it applies with greater
    force, &d sound policies require that there be no relaxation
    of its stringencyin any case which comes within Its reason.,”
me reports abound in cases’based u&n i&atutes prohibiting
officials becoming Interestedin contracts with the state. Statutes
of this character,however, are nothing more than the adoption of
the common law rule to the effect that one &cannotin his official
capacity deal with himself as an individual. In the case of Smith
ve. Albany; 61 M &@, the$.NewYork Court of Appeals in discuaslng
this.rule said:
     “It 18 unlawful for a member of any common counsel of,any
     city in this state to become a contractor,undermy contract
     authorizedby the common counsel, and authorizingsuch
     contracts to be dehlardd void at the instance of the city, has
     not wrought a change in th6 rule referred to; it is, so far as
     it goes, elmply dei?laratoryof the law as it exl,atedPXWriOUS
     to the paaoage of the act of 1843.”
The Supreme Court of Texas dlscuaslngthe rule In Wills vs. Abbey,
27 Tex. 203, saying:
     “Publicpolicies required thBt the offiicerschosen to locate
     and survey the public lando kil’&?uld
                                       not be permitted to ...
     epeculs;te.them,or to acquire Interest in them, which would
     present to such officers the temptatlon~totake advantage’of
  Hon. Ned 0. Wallace, Page 5, O-1014


        the informationwhich their offlclal*posltionsenable them
        to acquire+ to the detriment 6f the holders of certificates
        generally.
  We quote from 9 Cyc. 485 as follows:
        ‘A people can haireno higher public Interest,except the
        preservationof their liberties,than Integrityand the
        administrationof their government and all of Its depart-
        merits. It Is therefore a prlncfpal of the CommOn law that
        it will not lend its aid to enforcementof the contract to
        do an act which tends to corrupt or contaminate,by Improper
        and sinister influences,the Integrity of our social or
        political lnstltutlons. Public officers should act from
        high considerationof public duty, and hence every agreement
        whose tendency or object is to sully the purity or miaQad
        the judgment of those to whom the highest trust la confided
        is condemned by the courts.  The officer may be an executive,
        a&ninistr&tive, legislativeor judlcdal officer. The
        principal is the same in either case.”
  In view of the foregoing a:thoritiea,you are respectfullyadvised
  that It is the opinion of this departmentthat the board OS an
  independentschool district cannot award a contract for the
  purchase of material to be bought from a ~memberof the board..
        Trusting that the foregoing answers your inquiry, we remain
                                     Very truly yours
                               ATTORNEY GENERAL OF TEXAS
                               By   a/ Ardell wllliama
                                         Ardell Wllllams
AW:AW                                          Assistant
  APPROVED JULY 10, 1939
  a/ W. F. .Moore
  FIRST ASSISTANT
  ATTORNEY GENERAL
  Approved Osinion Committee
  By RWF, Chairman
