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PRICEDANIEL
ATTORNEY G!z:IIHXAL
                                     February 21, 1947

             Honorable D. D. Williams       opinion NO. v-40
             County Attorney
             Throckmorton County            Re:   Authority of the
             Throckmorton, Texas                  Commissioners1 Court
                                                  of Throckmorton County
                                                  to sell personal prop-
                                                  erty such as worn out
                                                  road machinery with-
                                                  out first hevins aa-
                                                  vertised the same for
                                                  sale on open bids; and
                                                  authority or the Tax
                                                  Collector to make sum-
                                                  mery levy on personal
                                                  property as provided
                                                  in Artiole 7268.
             Dear Mr. Williams:,
                       In your letter of Feb. 4, 1947, you present ror
             the opinion of this department two questions. These are
             as r0ii0ws :
                           “1. Is the Commissioners' Court
                      authorized to sell personal property
                      such as worn out road repair machinery
                      and like items without publicly edver-
                      tisin(Tthe same as being for sale and
                      selling the same at public auction?
                      (Each of the commissioners or this
                      county have~in their'charge worn out      _~
                      and useless maahinery and tools which
                      they wish to dispose or immediately.
                      They went to know the proper and legal~
                      procedure ior doing so.)
                           -2. Can the tax colleotor of the
                      county levy on personal property which
                      is about to be removed from the county
                      before he has completed his tax rolls
                      under Art. 7268, Texas R. C. S. 1925,
                      (There are several drilling rigs in the
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         Hon. D. D. Williams - Page 2      (V-40)



                   oounSy whiah l re 4uo to be mere4
                   in the near future. The taxes are
                   not delinquent on them since they
                   are only subject tc tamtim    rer
                   the year 1947 in this aouaty. The
                   tax collector would like to know
                   wkotimr he would be premature in
                   Lie sotion if he attempted to levy
                   en 8 rig now ii the owners bhereer
                   sttrpt to mmove the same rmr this
                   ooaaty.  Please send l o sll epiniena
                   whloh have been renders4 oenstwing
                   tbs above statute.)"
                   10 ah811 answer these questiou      in the order
    . strted.
                          Tko ~urls4i0fien oi’the Comis810aers1 Ceurt
         is d*finti 18 tko lstter pert or sec. 18 or Art. v 0r
        .the fWi8titutlen        in the tollowing wsr48:
                   *T& lrounty aonlssisner so chosen,
                   wit& t&s couaty judge ss pmsldikg
                   ottleer, shall oompese the aouaty
                   l~srloners    court, end shslf ex-
                   amleo suah powers aid jurlsdlotlon
                   *I** a11 oetity businesj as is doe-
                   hlne4 by this oonstitu%ion sn4 the
                   lawa et t&a St&e, or my be hore-
                   aftor prwarlbod .v (Daphaais oura)
                     It should be observed, hewever, that them is
        an express l%BitatiOn upon the ~juriadiCti0B thus con-
        ferre4, tlmt    18, it muet be noounty bUine880w   The term
        "oouaty b~lnesaa rhea14 be given s bros4 u&4 Llbenl
        construatlea 80 as net to .detert the purpose of’the lsw.
        Glenn .v. D&G      ~o;tyG~;is 4’Am Islsnd Levy District,
        (Cl+. A#p.                  o Moreover the ComwlssienersJ’
        Courts lmr impliid iutkerity to do wkat may be necessary
        In the exeml8e of the duties or powers expressly oom-
        rerred upon thus. City Nations1 Bank v. ?realdio County,
        (Civ. Appd) 86 S. W. 775.
                  In the osse of Stovsll v. Shivers (Corn.App.)
        103 S. W. (2d) 363, Judge Germen, speaking for the Court,
        said :
Hoa. D. D. Williams - rage 3    (V-40)


                “The duty of the Commissioners
           court is to transact the business,
           protect the interests, and promote
           the welfare of the county as a whole,
           Among the powers conferred upon such
           oourt by Artialo 2351 are the fol-
           lowing: Tha power to lay out and
           lstabliak,,okaaee and 4iscontlnuo
           roads an4 highways, the power to
           build bridgas and keap tham in m-
           pair, and tho power to exercise gen-
           eral control over all raads, high-
           ways, ferries, and bridges in their
           counties .n
           Thus in the exeroise of the powers expressly
coaierred by statute, lr by reasonable inference there-
fr&m the commissioners * caurt undoabtedly has the power
to purchase suoh road machinery and equipment as are
raasonably nooe6aary to carry out the powers conferrhl
upan it by Art. 2351, as suggested above. It does not
nacasaarily rollan, howavor, tbt it has the sama power
to sell suoh property,  and such powers as it does have
in thla respect  must lrisa by necessary implication in
transactlag “oounty business .” Is the sale or worn out
and lntlqaat.4 parson81 property of the County by the
Coniaaioners~ Court voouaty basiness”? If so, and wa
think it la, than such powor is logally vested,in tha
Commlarlonars’ Court,
            Such property whon erlginally purchased becomes
tha pmparty or the Ceunty, an4 not of the respective Com-
misaioaer~s precinct to which it night be allocated. Tha
Oouaty 1s la a sanse a pub110 corporation, and must,
therafora, racalva all its powars from the Constitution
an4 statutos which gave it.lxistoaco. Tm the Commissioncrap
Oaart, ua&er tho Coaatitutlaa aa statutes is committed
“oouaty bualaass” e Tharo is an ‘ansoatlaldirreraace ba-
twoon .tha rig&s er such public dorporatians raspacting
tim dispositloa or property and natural persons, the
latter   having ln inherent right in disposing of their
pnparty,    whllo pub110 corpomtions can saly acquire
and dispose ai pmporty by vlrtuo of coma poaitlva law,
lr lo eo sa a ry
               irplicatian arising thorarram.
          Therm will sot be found sny lxpmss statutory
pnriaiom  ooatarrlng upon the Coarissioaors’ Cmurt au-
thority to 0011 personal prsperty bolongi&I to the County,
bat wa think that by necessary implicatien from the posi-
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        EIon.D. D. Wllliama - Pa&a 4   (V-40)


        tive law, which, under the Constitution and stetutes, is
        conferred upon the Commissioners~ Court to transect the
        business of the County, to protect its interests1 end
        promote the welfare of the County aa a whole, that sound
        public policy justiries the action or the conissieaersq
        Court in selling worn out road mechinary when dotoriore-
        tion has reached the point where it would no longer bo
        the exercise of sound economic principles to centlnue
        its use.
                  We are, thererore, of the opinion that it is
        within the inpllod power of the Commlssioners~ Court to
        sell personal property, such as worn out road meohinery
        and likr items, when within the sound discretion ot the
        Court it no longer serves a sound economic usa to the
        County.
                  Since the stetute does snot speoifioelly eu-
        thorize e selo of such property, but rests upon the
        implied powers within which the Court is letherized
        to act, It necessarily follows that no method Is pro-
        vided as to the menner of disposing of suoh property.
        WI think this rests within the reesonablo discretion
        of the Commissionrrsl Court acting as l whelm, to pur-
        sue the ~method that will preduco the highost price,
        whether by private or public sale. We think either
        method would be legal if pursued in good faith end with      .
        l view of prot,eotingthe’.intarestsof the County end
        promoting its gonerel wlrare.
                  Your seoond quastion has heretofore beon answor-
        ed by this department by opinion No. O-3480, a copy of
        which is herrwlth enclosed for your inform&ion.


                        The Commissioners1 Court has ir-
                  plied authority to sell, either at private
                  or pub110 aelo, worn out end antiquated
                  road meohinery, when in the sound dis-
                  oretion of the Court suoh property ne
                  longer servos l useful purpose, consistent
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      Eon. D. D. Willluw   - Page 5      (V-40)


                 with the loenoaio interests O? the
                 county.
                                      Yours vary truly
                              ATTORN'SY GlCRE?&LOF TEXAS




                              AlPROVED




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