                   TEEIGATIY~RNEY GENERAL
                           OF TEXAS
Grover   Sellers                     AUSTIN   I~.TEXAR




     Hon. G. A. Neal                    Opinion    No. O-6183
     County Auditor
     Ellis County                       Re:   Right of county      to recover    back
     Waxahachie,  Texas                 excess salaries   paid     to County    Attor-
                                        ney.
     Dear Mr. Neal:

                 In your     letter  of August 24,         1944, you propound the
     following   question      for an opinion with         respect to the above
     subject   matter:

                   “Under an opinion   of the Attorney General’s
            Department of several     years ago, we paid a salary
            of $5500.00 to the District      Attorney,   but after we
            had paid our District     Attorney for Fourteen months
            salary    at $5500.00 per year, the Supreme Court
            ruled that we had no District      Attorney,   but County
            Attorney,    that his salary was $4250.00 per year.
            This finds that we have overpaid       the last Attorney
            $1500.00.     Does the law require    the Auditor   shall
            hold this amount out of his salary until        paid,   as
            it does in other cases due the County?”

                You are respectfully  advised  it is the opinion    of
     this department that you, as Auditor,    are not authorized    to
     withhold  any,sum from the amount due to a County Attorney      as
     salary to reimburse   the county for an over-payment   previously
     made to such officer.

                The principle    of law underlying this rule is that
     where there has been a payment of money by one to another un-
     der a mutual mistake of law, the payment being voluntary,      there
     can be no recovery    back.

                   Chief   Justice     Roberts    said   in an early   case:

                    “When money is paid under a mutual mistake of
             law, the mistake of law, in and of itself,              is no
             ground for recovering       it back.     A11 persons      are
             equally   presumed to know the law, and in such case
             both parties    are equally    at fault,    and equally
             innocent   of wrong done.      To admit ignorance         of law
             to be legally    recognized    as a fact    sufficient       in
             itself   to pervert   the will    of the parties       doing the
                                                                            .       -




Hon.   G. A. Neal,    page 2     (o-6183)


       act, so that it should be said and held that the will
       did not concur with the act done, thereby relieving
       him from the responsibility      for and the consequences
       of the act, would render the administration       of the law
       impracticable;      and hence the rule 1s founded upon a
       political    necessity   as well as upon public  policy.“--
       Galveston    County vI Gorham, 49 Tex. at p* 303U

             See also,    Limestone    County    v.   Robbins,   38 S.W.(2)     581.
          In the quite recent case of Stegall,    Sheriff,                 v. Mc-
Lennan County, 144 S.W. (2) 1111, following    and quoting                 the Old
Alcalde, Justice Tire said in affirming   a judgment:

             “We think the directed       verdict     must be sustained
     on two grounds.        First   of all,   the plaintiff’s        cause of
     action    as pleaded,     as well as the facts         introduced     to
     support same, shows that the fees in question                  collected
     by him from the state and accounted              by him to said
     county were done solely          as the result       of a mistake of
     law.     As we view the matter,        there was no mistake of
     fact.     That is to say, the sheriff           rendered    the service
     that he claimed to have rendered             on each of the warrants
     for which payment was made to him by the state,                   and his
     charge to the state therefor           and collection       of the items
     so charged was a mistake of law.              It was likewise        a mfs-
     take of law when he took such sums into c,onsideration
     in his accounting       to and with defendant          county.      It ap-
     pears that our courts have uniformly               held that an action
     does not lie in such cases.            Limestone County v. Robbins,
     120 Tex. 341, 38 s.w.2d          580, point p0 582; Gfiliaft~ V*
     Alford,    69 Tex. 267, 6 S.W. 757; Taylor v. Hall,                 71 Tex.
     213, 216, 9 S.W. 141.          We think the rule in Texas is:
      ‘When money is paid under a mutual mistake of law 9 the
     mistake of law, in and of itself,             is no ground for re-
     covering    it back.      All persons     are equally      presumed to
     know the law, and in such case both parties                  are equally
     at fault,     and equally     innocent    of wrong done.        To admit
     ignorance     of law to be legally        recognized      as a fact     suf-
     ficient    in itself    to pervert     the will      of the parties
     doing the act,       so that it should be said and held that
     the will     did not concur with the act done, thereby                 re-
     lieving    him from the responsibility            for and the conse-
     quences of the act, would render the administration                     of
     the law impracticable;          and hence the rule is founded
     upon a political       necessity,     as well as upon public           pol-
     icya ’ Galveston       County v. Gorham, 49 Tex. 279, point
     page 303 -It
             The Supreme Court dismissed          the application--correct
judgment.
Hon.     G. A. Neal,   page   3   (0-6183)


           There is appended to the case of Chrysler      Light & P.
Co. v. Belfield,     (N.D.) 224 N.W. 871, 63 A.L.R, at p. 1354, a
valuable  annotation     on the application  of this rule to pay-
ments made by governmental      authorities.   It is there said:

               “The general   rule that money paid under a mistake
         of law, rather than one of fact,     cannot be recovered    back,
         has been applied    in many cases to payments made to priv-
         ate individuals    or concerns  by governmental  authority,
         most of the courts being unwilling      to make any exceptions
         in such a case.”

              Some exceptions      follow , among which   the   annotator   has
listed     Cameron County v.      Fox, 2. S.W.(2) 433.
             An examination    of that case will        show, however,     that
it is not an exception      at all.      It is easily     distinguishable
from the rule we are discussing,           in this,   that the right of the
county there recognized      to recover      from the County Assessor           a
sum of money paid to cover the premium on the Assessor’s                  offi-
cial bond, was allowed upon the specific             ground that the Commis-
sioners’    Court in the first     place had no authority--jurisdiction--
to pay out money upon any such item.             The Coamissionerst       Court,
therefore,    was not acting     as officers     of the county,      in contem-
plation    of law, for they had exceeded         their powers under the
statute,    and assumed to act with respect          to such matter,      and to
pay out the county’s      money without      any authority      of law what-
soever.     This is made clear     in the opinion which says:

                ltWe think the rule invoked cannot be applied          to the
         action     of the Commissioners t Court in allowing       this claim,
         for the reason that the statute          under which the same was
         allowed has no application          to Cameron County, unless     its
         total    taxable  valuations     are in excess of $30,000,000.00.
         Unless the conditions        stated in the statute    existed   in
         Cameron County, the Commissioners’          Court was wholly lack-
         ing in power or authority         to allow such claim.    ***

             ~~Notwithstanding    the payment to defendant        in error
      was   voluntarily   made,   the  same  being   without   lawful   author-
      ity,   the   amount so  paid   may be  recovered    in  an action    by
      the   county.”
                                            Very truly    yours
APPROVEDSEP 22, 1944                        ATTORNEYGENERALOF TEXAS
/s’ Grover I Sellers                        By /s/   Ocie Speer
ATTORNEYGENERALOF TFZAS                     Ocie Spe er , Assistant
APPROVED: OPINION COMMITTEE
BY:          BWB, CHAIRMAN
OS-Hi :wb
