”   ,




        Honorable R. L. Washburn
        CtiuntyAuditor
        Harris County
        Houston, Texas
        Dear Sir:                  Opinion No. O-5296
                                   He: (1) Authority of auditor to ap-
                                        prove claims arising from pertorm-
                                        ante of certaiiicoritract. (2)
                                        Authority of Navigation District
                                        Commissioners to act separately~
                                        at different times and places in
                                        ~~~~~v'"$3~0n~~~~~~i~~ao~X~~~~~or
                                       to prescribe reasonable require-
                                       ments to eviaence approval of Com-
                                       missioners before countersigning
                                       warrants.
               We have received and considered the opinion requests-
        contained in your letters of May 11, 1943, and June 1, 1943,
        together with the exhibits attached thereto; Opinions'sub-
        mitted by Lewis and Knipp, attorneys at law, and by Mr. D.A.
        S'immons,general counsel for the H:oustonHarris County Wavi-
        gation District, have also been received and have been most
        helpful in our consideration of your requests.
              Your original letter read in part as follows:
              "As County Auditor for Harris County, I am
           auditor for the Houston Harris County Naviga-
           tion District under the provisions of Articles
           1667 through 1673, as amended. The navigation
           District operates under Articles 8198 through
           8228, and in counties of this size it has
           speclialpowers under Articles 8229~through 8244.
           Certain employees of the DistFict are providea
           for under Article 8245~~whicharticle also relates
           to the County Auditor and certain of his duties
           and compensation.
              "Over a period of years questions have arisen
           with respect to the procedure required of the
           Navigation District Commissioners in the award
Hon. H. L. Washburn, page 2           o-5296



    of contracts and the payment of claims with
    VfiriOUsOpinions pro and con expressed by the
    attorney for the Navigation District and by
    the District Attorney of Harris County. Of
    late, the procedure adbpted by the District
    has settled into a practice of awarding con-
    tracts, approving bills, end paying claims by
    separate action of the individual commissioners
    exercised at separate times and places, with-
    out a meeting of the commissioners collective-
    ly as a Board or notice to each commissioner
    of the proposed action, which action is gen-
    erally indicated by the signatures separately
    attached of individual commissioners constitut-
    ing a majority in number of the commissioners.
       "More recently still, the Navigation District
    entered Into a contract with Richard R. Olmstea
    to act as Carloader for the Navigation District
    predicated on a previously executed contract be-
    tween such District and certain railroads. A copy
    of this agreement is attached and marked 'Exhibit
   A.’

      'Thenterms of the agreement on the part of
   Mr. Olmsted and the Navigation District are lengthy
   and reference is made to these numerous provisions
   as contained in the contract, from which it will be
   Dbserved.that Mr. Olmsted will exercise, in connec-
   tion with the work undertaken, the power to make
   employments:~andpurchases for which he will be com-
   pensated by the District. It is not proposed that
   Mr. Olmstea will observe any of the requirements
   laid down by statute for observance by the Naviga-
   tion District in the making of contracts or the
   purchase of supplies. The Navigation District will
   not directly make employments or pass upon the
   merit of claims resulting from such contracts and
   employments, but will at stated periods make reim-
   bursement to Mr. Olmsted of all expenses incurred
   by him. The execution of this contract has focused
   my attention directly upon the methods now adopted
   to discharge functions devolved by statute upon
   the Navigation Commissioners themselves and directly
   raises the point as to whether or not the Naviga-
   tion Commissioners may delegate to Mr. Olmstea the
   ddscretion vested in them by law and necessary to the
   dfscharge of their duties,
         "This contract represents merely one phase of
..




     Hon. H. L. Washburn, page 3        o-5296



         the operations of the Navigation District,
         There are other phases such as the operation of
         the administrative office, warehousing, use of
         docks, equipment, ship loading and unloading,
         elevation of grain, end like items. Conceivably,
         If this contract Is sustained, the District may
         by other contracts have performed all of Its
         services through the same media.
           "In view of the obligation placed upon me
        under Article 1669 to pass upon claims of the
        District, it will be observed that one require-
        ment is:
           fll
             . s . he (the County Auditor) shall auait
        end approve the same provided said bills have
        been contracted in accordance with the law ana
        are found by him to be correct, n . V S D8
           "Under this requirement, I desire to know whe-
        ther or not the Olmsted contract is a legal con-
        tract in view of its provisions and whether I am
        authorized to approve reimbursement claims arising
        from e performance of the contract by Olmsted.
           "I submit an opinion of Lewis ana Knipp, At-
        torneys, dated May 1,/1943, rendered at my re-
        quest, in the hope that the same may prove help-
        ful in arriving at a correct conclusion,
           "It will be observed that among the provi-
        sions of Article 1669 is to be found the follow-
        ing:
           "'All warrants in payment of bills of any
        such District shall be drawn and signed in ac-
        cordance with the law governing the issuance of
        warrants of such Districts.1
           "Obviously from the provisions of this article
        the auditor is required to find (a) that a legal
        contract has been entered into by the Board and
        (b) that the work is performed as a condition pre-
        cedent to the issuance of the warrant in payment
        of claims arising under a contract or for materials
        and labor furnished under purchase contracts; and
        further, when the warrant is presented (c) that it
        is based upon a claim duly approved br the Board
        and drawn under the provisions of the statute. In
        view of practices now indulged of entering into con-
    Hon. H. L. Washburn, page 4         o-5296


        tracts, approving claims, end issuing warrants by
        the separately given signatures of Navigation Dis-
        trict Commissioners not meeting together but whose
        approval is given and whose signatures are attached
        et different times and places, there naturally
        arises the question of the legality of these prac-
        tices. I attach an opinion rendered at my request
        May 1, 1943, on this subject by Lewis and Knipp, with
        the hope that it may be helpful in arriving at a
        correct conclusion.
          "I desire to know whether or not the Navigation
       District Commissioners may not separately at dif-
       ferent times and places in approving contracts end
       expenditures on behalf of the District; whether it
       is required that a given number of commissioners
       sign warrants, or in what manner the approval of
       contracts and expenditures may be evidenced.
          "What authority do I have to prescribe reason-
        ablerequirements to evidence the approval of the
       Board of Navigation Commissioners before counter-
       signing the warrants in payment of obligations
       contracted by the District?"
           From your letters we conclude that you desire our opinion
    on the following questions:
           (1) Whether the Olmsted contract is a lawful contra&;
    and whether you are authorized to approve reimbUr8ement claims
    arising from a performance of the contract by Olmsted.
           (2) Whether the Navigation District Commissioners may
    act separately at dlfferent times end places in approving con-
    tracts and expenditures on behalf of the District.
           (3) Your authority to prescribe reasonable requirements
    to evidence the approval of the Commissioners before you counter-
    sign warrants in payment of obligations contracted by the Dis-
    trict.
           The contract between Olmsted end the Navigation District
    contains the following provisions relative to the payment and
    reimbursement of the former party:
          "(5) The Navigation District will reimburse
.      the Carloader for all costs and expenses of per-
       forming the loading and unloading services under
       this contract, and particularly the following
       items:
Hon. H. L. Washburn, page 5        0 -5296


       "(a) All labor co.stsfor labor employed
      and used in performing services prescribed
      by this contract.

       "(b) Standard rates for the rental of
      machinery, tools and equipment.
       "(c) Out-of-pocket cost for the repair
      of machinery, tools and equipment.
       "(d) Net cost of all Insurance and bonds
      required under this contract.
       "(e) All damage claims when paid with
      the approval of the Navigation District
      in accordance with the terms of its con-
      tract with the Railroads.
       "(f) Net cost of all materials and sup-
      plies used In supporting, bracing, and
      staking freight in or on cars.
     m~$)fo;~~;ies    for revenue clerk, equip-
                    and checking clerks at rates
      to be agreed'on in advance by the Carloader
      and the Port Director.
      “(6)  The Navigation District, in addition to
   the allowances hereinabove specified, will pay the
   Carloader the sum of Two Hundred and Twenty-Five
   Dollars ($Z?5.OO) per month, plus additional sum
   based upon the following formula:" (Here follows
   a detailed formula whereby the compensation of the
   Carloader may be increased by specified amounts
   depending upon the amount of profit realized each
   month by the Navigation District on its contract
   with the Railroads.)
       In your supplemental letter of June 1, 1943, you submit
the following facts in connection with the above quoted features
of the contract:
       "In other words Olmsted fixes the rate of pay,
    determlnes the amount to be paid, and pays it in
    cash. Subsequently, in accordance with the con-
    tract previously submitted, he presents to the
    Navigation Commissioners e bill for all of these
    expenditures, which have been made without any
    previous authorization or check of any character,
    and the Navigation District proposes to reimburse
Hon. R. L. Washburn, page 6         o-5296



    him in one lump sum each month for all such
    expenditures.
      "In addition to the expenditures for labor,
   Olmsted ~111 also pay Ln cash all expenses for
   materials, rentals on machinery, and other in-
   cidental related Items. All of these are paid
   by Olmsted without any prior authorization by
   the Navigation Comnlssloners except as it may
   be covered by the contract submitted to you,
   and he Is reimbursed monthly for them, along
   with expenditures for labor,"
       In Texas, districts and other organizations similar to
Navigation Districts commonly are denominated "municipal cor-
porations" or "quasi-municipal corporations." As such corpor-
attons they possess only such powers as are expressly granted
to them or as are necessarily lmplled from those granted, and
the courts are more loath to imply powers to such corporations
than they are to imply them to cities and incorporated towns;
Engelman Land Company v. Donna Irrigation District No. 1, 209
S.W. 42% (error refused); Dancg, et al. v. Wells, et al.,
8 S.W. (26) 198 (error refused).
       In Tri-City Fresh Water Supply District v. Mann, 142 S.W.
(2d) 945, the Supreme Court said with reference to the powers
of a fresh water supply district:
      "It is a general rule of judicial construc-
   tion that even a normal municipal corporation
   has only such implied powers as are reasonably
   necessary to make effective the powers expressly
   granted. That is to say, such as are lndispens-
   able to the declared objects of the corporation
   and the accomplishment of the purposes of its
   creation. Powers which are not expressed and
   which are merely convenient or useful may not be
   included and cannot be maintained. Furthermore,
   where oowers are nranted to a municipality by
   specific provlslons, such powers are not enlarged
   by general language found elsewhere Inthe act,
   such as is found in Article 7917, supra. (Citing
   cases) In discussing this subject this Court in
   the case of Foster v. City of Waco, 113 Tex.
   352, 255 S.W. 1104, 1106, speaking through the
   late Chief Justice Cureton sald: 'Any fair,
   reasonable, substantial doubt concerning the
   existence of Dower 1s resolved bv the courts     '
   agaLnst the corporation, and the Dower is denied.
   Of every municipal corporation the charter or
Hon. R. L. Washburn, page 7         o -5296


    statute by which it Is created is its organic
    act. Neither the corporation nor its officers
    can do any act, or make any contract, or incur
    any llablllty, not authorized thereby, or by
    some legislative act applicable thereto. All
    acts beyond the scope of the powers granted are
    void.'
       " . . . .,. .
         "What has been sala relates primarily to
    municipal corporations, proper, because what is
    applicable to them is usually applicable to dis-
    tricts such as that of relator, but with some
    limitations. For one thing these districts do not
    possess, at least the relator does not possess,
    broad police powers to do those things which are
    necessary to promote the public health and general
    welfare,   which are ordinarily expressly delegated
    by statute to cities and towns, and by virtue of
    which the governing bodies of such munlclpalitles
    are permitted to make rules and regulations and
    enact ordinances, which if not expressly author-
    ized, are very generally upheld by the courts as
    belongin the interest of the health and safety of
    the inhabitants of the municipalities.
       "Governmental agencies, or bodLes corporate
    such as Fresh Water Supply Districts, under our
    statute, are commonly referred to by courts as
    quasi municipal corporations, for the reason that
    they are constituted by the legislature to exercise,
    in a prescribed area, a very limited number of
    corporate functions, and they are said to be 'low
    down in the scale or grate of corporate existence.'
    The powers of such districts are measured by the
    terms of the statutes which authorized their creation,
    and they can exercise no authority that has not
    been clearly granted by the legislature. As ex-
    pressed,by the court in Stratton v. Commissioners
    Court of Kinney County, Tex, Civ. App., 137 g.W,
    1170, 1177, writ of error denied, the powers of
    such governmental agencies as counties, townshlps
    and school districts 'are generally more strictly
    construed than those of incorporated municipalities'.
.   (Citing cases) Numerous cases of similar import from
    other jurisdictions might be cited." (hnphasls added).
       In accordance with the ancient Latin maxim variously ex-
pressed "delegatus non potest delegare" or "delegata potestas
Hon. H. L. Washburn, page 8                o -5296



non potest delegare" it is a settled rule in this State that an
officer or body in whom the legislature entrusts powers involv-
ing~the exercise of discretion may not, wlthout statutory author-
ity, delegate to another the exercise of such powers.  In Borne
Zoological Arena Company v. City of Dallas, 45 S,W, (2d) 714
(Civ. App.) Judge Alexander, the present Chief Justice of our
Supreme Court, said:
       "The general rule is that, where the law
    creates a board to have charge of the affairs
    of a municipality, or a particular part thereof,
    such board may appoint agents to discharge minls-
    terial duties not calling for the exercise of
    reason or discretion, but it cannot go beyond
    this and delegate to others the discharge of
    duties which call for reason or dfscretion, aria
    which are regarded as a part of the public trust
    assumed by the members of such board. The power
    to exercise discretion in matters entrusted to
    such board cannot be delegated, surrendered, or
    bartered away."
          Likewise       in the case of Nairn, et al./v. Bean, et al.
48 S.W.    (2a)   584,    586, our Commission of Appeals stated:

        "It is well settled that no governmental
    agency can, by contract or otherwise, suspend
    or surrender 'itsfunctions, nor can it legally
    enter into any contract which will embarrass
    or control its legislative powers and duties,
    or which amount to an abdication thereof. bowers
    v~: City of Taylor, (Corn.App.) 16 S.W. (2d) 520
    and cases cited."
       An apt application of these prlnclples is to be found
in the case of City of Corpus Christi v. Central Wharfs& Ware-
house Company, 27 S.W. 803 (Civ. App.). In that case a city
possessing the power to "construct, erect, maintain, and own
the wharves or piers" and to "fix the rates of wharfage and
to collect the same on all goods, wares, and merchandise landed
upon said wharves or piers" executed a contract with the defend-
ant by which Ln effect the city surrendered to the defendant
the right to collect the wharfage, but in which the city retained
the right to a portion of the earnings of the defendant. The
city fixed the maximum charge whLch the defendant would be per-
mitted to assess, but allowed the defendant to fix the rates
within this limit. In holding that the city could not delegate
these powers, the then Judge Williams said:
          "The power to provide for the Improvement
Hon. H. L. Washburn, page 9          o-5296



   of the harbor of Corpus Chrlsti,     and for the
   erectionsand maintenance of public wharves;and
   for the regulation of charges for'thelr use, was
   essentially legislative land belongedto the legis-
   lature of the state, By the act in question it
   was relinquished to the local government'of the
   city, to be exercised, in its legislative discre-
   tion, for the best interests of the people. Such
   powers as these, when conferred npon~municipal
   governments, cannot be delegated, surrendered, or
   bartered away, 'The principle Is a plain one
   that the public powers of trusts devolved by law
   or charter upon the council or governing body, to
   be'exercised by pt when and in such manner as it
   shall judge best, cannotbe delegated to others.'
   lDill.~Mun. Corp. Par. 96.                 It is true
   that a city may do by agent many things which it
   is empowered to perform, as Illustrated by the
   authorities just referred,to, as well as by the
   case of Morris v, State, 62 Tex, 728, and many
   others that might becited.       In order to build
   and operate the wharves, piers,'etc,, and do other
   things specified in Its charter, it was necessary
   for it to employ agents.  But wIthout express
   authorlxatlon from the legislature it could not sur-
   render the exercise of the powers so granted Into the
   unrestricted control of any person, and thus abandon
   the discretion which Itwas expected at all times
   to employ. The fact that a maximum rate of charges
   was prescribed, and that it was stipulated that
   vessels should be allowed to lie at the wharves free
   of charge, does not alter the case. This was an
   exercise of a portlon of the legislative power
   entrusted to the city, but it d1d not justify the
   surrender of the residue to the wharf company for
   the term of the lease. It was of the essence of
   this power, and of the duty, which resulted, that
   the city should be at all times free to alter these
   regulations, oi-make others, as the interests of
   the public~demanded. Waterbury v, City of Laredo,
    68 Tax.   576,   5 S.W.   81.”

       Under ArtLcle 8229, V.A,C.S,, the Navigation District
in questlon possesses "the right, power and authority to~ac-
qulre, purchase, take over, construct, maintain; operate,
develop and regulate wharves, docks, warehouses, grain eleva-
tors, bunkering.facilitles, belt railroads, floating plants,
llghterage,lands, towing facilities, and all'other facilities
or alds incident to or necessary to the operation or develop-
ment of ports or waterways, within the district and extending
Hon. H. L. Washburn, page 10         o-5296



to the Gulf of ~Mexico. ; : '  TtieCommissioners of this Dis-
trict havesdeemed It necessary and~desirable that provisionbe
made for the unloading of railway cars arriving at the wharves
and docks and for placing the contents thereof in a pbs~ition
in which such contents may readily be loaded Into steamships
and barges. The Olmsted contract is designed to provide these
i3ervQes. We assume without discussion that the Commissioners
possess the authority to provide such services and we shall
direct our attenti~onsolely to the means by which they have
attempted to accomplish this end.
       Under the contract in question Olmsted 1s given carte
blanche authority to employ any personsw~hom he desires, to
employ any number of~such persons, and -- with the exception
of the revenue clerk, the equipmentforemen, and the checking
clerks -- to fix the salaries of such persona, Moreover, he
is given full and unlimited-authority to procure materials and
supplies used in supporting, bracing, and staking freight in
OP on the railway cars and to.secure repairs for the machinery,
tools and equipment which he owns and which he rents from the
District. The district unreservedly and unequivocally binds
itself to reimburse him for all of his expenditures in these
matters.' Persons employed by Olmsted are, by the terms of the
contract, responsible to him alone and such persons look solely
to him for directions concerning the nature and conduct of their
work, and for the amount and payment of their salaries. Repairs
and materials are purchased by him in the amounts, of the kinds
and at the prices which he alone deems desirable. Olmsted's
authority in these matters is, under the terms of the contract,
complete and uncontrolled by the,Navigation District. Such
vesting of authorhty is, we feel; directly contrary to the
principles above dlscussed and constitutes an unauthorized
delegation of the dYscretionary powers possessed by the Com-
missioners of the Navigation District.
       Article 8245 V.A.C.S., provides:
       "Such commlssioners may emolov such persons
    as they may deem necessary for the construction,
    maintenance, operation and development of the
    Navigation District, Its business and facilities,
    prescribe their duties and fix their compensation
    . . . . 1 (Emphasis added)
        Under settled rules of construction, whenever the commis-,
sioners deem necessary the employment of any agents or employees,
the word "may" as firs~tused in this statute is to be read as
if it were the word "must." Raines v. Herring, 68 Tex. 468 ‘5
s..w. 369;  city  of Dallas v:Street Railway Co., 95,Tex.'268,
66 S.W. 835; .Weber v. Rogan, 94 Tex. 62, 54 S.W. 1016, 55.S.W.
559, 57 s .w. 940;   Rock Island County Supervisors v. G. S., 4
Hon. Ii'.
        L. Washburn, page 11          o-5296



Wall. 435, 18 L. Ed. 419.   In Smalley v. Paine, 116 S.W, 38,
our Supreme Court said:
       "The rule In the construction of statutes 'is
    universally establis~hedin the courts of common
    law that the word 'may' means 'must" whenever
    third persons or the public have an Interest In
    having the act done or have a claim de jure that
    the power shall be exercised. D . 0 ."
       Since the acts of obtaining officers and employees, pre-
scribing their duties and fixing their compensation have all
been held to be acts of a legislative nature which involve dis-
cretlon. Taxpayers' Association v, City of Houston, 100 S.W.
(2a) 106 6 aff'a 105 S.W. (2d) 6559, the specific statutory
mention 0: these matters and the vesting of discretion with
regard thereto in the Commissioners would alone justify the
conclusion that the placing of these matters in the hands.of
Olmsted constitutes an unauthorized delegation. Moreover,
even if we assume that the word "may" was used in Article 8245
in a permissive rather than in a mandatory sense and seven if
we make the further assumption that the constructional maxim
"expresslo unius est exclusio alterius" has no application to
a permissive vesting of powers, the delegation remains unau-
thorized.
       Of all the~many powers vested in the Commissioners of
Navigation Districts and in the governing bodies of other slmi-
lar corporations perhaps none involves more discretion and is
more important or should be more closely guarded and confined
than the powers possessed with reference to the funds of the
corporation. Such funds are accumulated only because the leg-
islature has seen fit to clothe the corporation with the power
to levy taxes -- a power which the courts strictly construe,
State v. Houston & T.C. Ry. Co. 209 S-W, 820. It is only
logical that the powers with respect to the disposition of such
fund should be construed with equal strictness, If it be true
that notwithstanding Article 8245 the Commissioners may in cer-
tain circumstances delegate the performance of mechanical or
ministerial tasks to a contractor and allow him to employ those
who are to perform the tasks, we are satisfied that in making
such a delegation the Commissioners may not in addition delegate
the power to determine what amounts of District funds shall be
spent and for what purposes the expenditures shall be made. It
is true that the Instant contract delegates the purely ministeral
task of unloading railway cars, but it accompanies this delega-
tion with the highly discretionary power to decide how much
this task will cost the District and to detePmi.ne the PPeCiSe
nature of the various items comprising such cost. In our
opinion, it is not sufficient for the Commissioners merely to
Hon. H. L. Washburn, page 12        o-5296



determine that they desire the performance of a certain task--
carloading, in the~present case -- and then to surrender to
a contractor the power to make decisions regarding the manner
in which the'task is to be performed and the amount which the
task Is to cost the Navfgation District. In the words of
Judge Williams, supra, such action is an exercise of but a
portion of the discretionary powers entrusted to the Commis-
sioners. We do not here attempt to enumerate all of those
decisions which the Commls~ioners must make before delegating
ministerial tasks, nor do we attempt to define the amount of
cofitrolwhich the Commissioners must retain over the perform-
ance of such tasks. It suffices here to say that any delegation
in which is surrendered the power to determine how much .sgiven
task is to cost the District and in which is conferred absolute
discretion over the amount and nature of the expenditures for'
a given task lies without the field of permissible~delegation.
It is true that in the present contract Olmsted' compensation
aepencleain part on the profits accruing from certain railway
contracts and that under normal modes of human conduct he
would seek to keep down the expenses of his carloading actlvi-
ties since such expenses constitute one of the factors which
determine the existence and amount of profits from the railway
contracts. While as a matter of policy, the provision of such
an incentive doubtless is desirable, yet practically and'legal-
ly such a provision Is no substitute for the discretion which
the Commissioners must exercise over expenditures.
       The briefs submitted on this question contain scholarly
arguments pro and con on the question of wlietherOlmsted is an
independent contractor under this contract; such arguments
apparently are predicated on the assumption that the delegation
of power to Olmsted is authorized if he is an independent con-
tractor but 1.sunauthorized If he is a mere agent, Two consid-
erations cause us to refrain from entering into a lengthy dis-
cussion of this point: (1) If we should conclude that Olmsted
Is an independent contractor with respect to the performance of
the actual carloadings, such conclusion would in no way prevent
the additional conclusion that with respect to the~employing
of labor, the purchasing of supplies and materials, and.the
determining of the amounts to be so expended he is an agent of
the District. Our Commission of Appeals has held with respect
to a 'cost-plusR contract very similar to the one under dis-
cussion that a contractor may be an independent contractor for
some purposes of the contract but may still be an agent when
he purchases supplies for which he Is to be reimbursed by his
employer, even though all of his acts arise out of the'same con-
tract. Gilbert Mfg. Co. v. Connellee, 265 3.W. 375 (1924).
(2) If we should conclude that Olmsted is an independent con-
tractor with respect to all aspects of the contract, such con-
clusion would only serve to emphasis the vice of the delegation
.-   ,.




          Hon. R. L. Washburn, p$ge 13        o-5296



          therein made if, as in the case before us, the contract dealt
          with matters which may not be delegated.
                 Consequently, you are respectfully advised that the
          claims for reimbursement'mentibned in your letters hmvo not
          been contracted in accordance wfth law and that under Article
          1669 you may decline to approve such claims.

                 We deem it unnecessary to'wdte an extended~discussion
          with reference to the second question above state. In an
          opinion of a former ~administrationof this clepartment,the
          then Attorney General C. M. Cureton carefully reviewed the
          authorities on this question and arrived at the followln con-
          clusion:
                 "The authorities in all jurisdictions hold
              that where a duty is conferred upon a Board.or
              Commission composed of more than one member,
              and.where his duty involves judgment and dis-
              cretion, that it may not be performed by the
              members of the Board or Commission separately
              and individually, but that it must be peeformed
              by them meeting together and taking official
              action as a Board or Commission."
          Since this opinion was written, the above condlusion-~hasbeen
          amply sustained by the opinion of Chief Justice Alexander in
          Webster, et~al. v. T,exas& Pacific Motor Transport Company, et
          al., 166 s-w. (2a) 750 In our opinion, the foregoing authori-
          ties are conclusive upon this question and you are respectfully
          advised that the Navigation Commissioners may not act separately
          at different times and places In approving contracts and ex-
          penditures on behalf of the district.
                 With respect to your third question, Article 1669 pro-
          vides that the proper officers of said district shall file all
          bills with the county auditor before payment and that he shall
          audit and approve the same provided said,bills have been con-
          ;;;;:;; in accordance with law and have been found by him to be
                   and that~no bill shall be paid until the same has been
          thus audited and approved. If you have any doubt as to any
          contract, you are authorlzed to make any reasonable requirements
          in order to satisfy yourself, and lf'you are not satisfied
          after having made such reasonable requirements, you are author-
          ized to decline to approve the account or the warrants issued
          in payment thereof.
                                                        .. - .   _




Hon. H. L. Washburn, page 14         o-5296



                               Very truly yours
                            ATTORNEY GENERAL OF TEXAS

                               By s/R. Dean Moorhead
                                    R. Dean Moorhead
                                    Assistant

RDH:fo:wc

APPROVED JUN 19, 1943
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee by s/BWB Chairman
