..




     Honorable J. D. Looneg
     County Auditor
     Bowle County
     Boston, Texas
     Dear Sir:                     Opinion No. O-4266
                                   Re: How should the wages of men work-
                                        ing by the month for the various
                                        county commlssloners be set?
              Your letter of recent date requesting the opinion
     of this department on the above stated question reads as.
     fbllows:
             '%ow should the wages of nienworking by.
        the month for the various commlssloners be set,
        should it be made by each com+ssioner as be
        see's fit 6Fshould it be made by an order of
        the.Commr..Court and placed in the minutes of
        the Court."
              Artlcl~e2351, Vernon's Annotated Civil Statutes pro-
     vides in part:
              "Fzch commissioners court shall:
              9,
                   .   .   .   .



              “3.  Lay out and establish, change and dis-
         continue public roads and highways.
                 “4.’ Build bridges and keep them in repair.
                 “5    . Appoint road overseers,and apportion hands.
                 “6    . Exercise general control over all roads,'
         highways, ferries and bridges In their counties.
              ,,. . . . .II

             'Title 116, Chapters~l-15, inclusive, Vernon's Anno-
     tated Civil Statutes and amendments thereto contains many.
     statutes with reference to roads, bridges and ferries'and the
     powers and duties of the Commissioners' Courts relative thereto.
Honorable 3. D. ~LooneJi,
                        page 2'         ~0-4266



         Bowie County hasa population of 50,244 Inhabitants
accoralng to the.1940 Federal census. Article 6762, Vernon.'~
Annotated Civil Statutes provides In part:
         "In all counties of this State, as shown by
    the preceedingFedera1 census to contain as many
    as 40,000 Inhabitants, the members of the Commis-
    sioners' Court shall be ex offlcld road commission-
    ers of their respective precincts; and under the
    direction of the Commlsslonsrs’ Court shall have
    charge of the teams, tools and machinery belonging
    to the County and placed in their hands by said
    court. . .'I
         Article 6763,   Vernon's Annotated ClvFl Statutes pro-
vides in part:
         If
          . . . Sala Court may employ any hands and
    teams on the public roads-under such-regulations
    and for such prices as they may deem best."
         Article 6769,   Vernon's Annotated Civil Statutes reads
as follows:
         "The provisions of this subdivision shall be
    cumulative of all general laws on the subject of
    roads, when not in conflict therewith, but in the
    case of such,confllct this law shall control.
    This law shall not be In operation In any county
    unless the Commissioners I Court thereof In their
    judgment may deem It advisable, and then only by
    an order of said Court when all of the members
    are present, made at some regular term thereof, ac-
    cepting the provisions hereof. Such order shall
    be entered on the minutes of said Court, and shall
    not be void for want of form, but a substantial
    compliance of the provisions hereof shall be sufficient."
         There 1s nothing In your letter that would Indicate
that the Commissioners' Court of Bowie County has accepted
the provisions of the above mentioned statutes which are eom-
manly referred to as the optional road law. In the absence
of any statement to the contrary, for the purposes of this
opinion, we asstie that the Commissioners' Court of Bowle
County has not accepted the provlslons of the optional road
law and are in no way operating under the same.
         Bowie County, as well as & number of other counties,
is exempted frbm certain provisions of Chapter 3, Title 116,
Vernon's Annotated Civil Statutes, relative to road superin-
”   -




        Honorable J. D. Looney, page 3              o-4266



        tendents at-id
                     theirduties as contained under the heading of
        Road Sup.eri~tendents,~subdivision3 of Chapter 3, Title 116,
        supra.
                 Article 6740, Vernon's Annotated Civil Statutes pro-
        vides for the expenditure of the road and bridge fund of the
        various dountles and Article 6741'provides:

                  "The Commidsloners Court may make and enforce
             all reasonable and necessary rules and orders for
             the Qorklng and repairing of public roads, and to
             utilize the labor to b~e.usedand money expended
             thereon, riotin conflict with the laws of this State.
             Said court may purchase or hire all necessary road
             machinery, tools, or teams, and hire such~labor as
             may be needed in addition to the .laborrequired of
             citizens to build or repair the roads."
                  It ls'stated in Texas Jurisprudence, Volt 11, p. 632:
                  "The authority of the com&sloners'   cc&t as
             a &vernlng body of a county to make contracts in
             its behalf is strictly 1Fmlted to that conferred
             either expressly or by fair or necessary implication
             by the constitutlbn and laws of the State. . , . .
                 'The.commissioners' court must have authority
            of law for its contract, and, if the authority has
            been.given, a reasonable.construction of it will
            be given to effect its purpose-~
                 "A contract or agreement made by a county is
            valid and binding.only if made under the authority
            of a resolutldn br order auig passed at a meeting
            of the commissioners' court and entered upon the
            minutes of such meeting.      . No rights can be
            acquired as against the co&ty by agreements with
            the Individuals composing the commissioners' court.
            The members of the court are not agents with general
            authority to bind the public; they are public of-
            ficials who have been granted certain powers which
            must be exercised in the way prescribed by the statute.
                 f,
                  . . . . 0
                  It   is   further stated In Texas Jurisprudence, Vol. 11,
        P. 635:
                  "The commissioners' court, in entering into a
             contract on behalf of the county, may act through
Honorable J. D. Looney; page 4         ~0-4266


     an agent:.appointedby it; and the contract thus
     made by a duly appointed agent Is binding upon the
     county. In a suit Involving the contract it is
     necessary to show that the agreement is one which
     the agent was authorized to make, or that the
     county, with knowledge of the terms of the agree-
     ment , ratlfled It after it was maae.      .
..
          "Authority to bind the county by coIltract
     must come'from the commissioners' court acting
     as a body; it is not sufficient that the indlvld-
     ual commissioners may have refrained from object-
     ing to the assumption of such authority by the
     alleged agent.   . . .'
         In view of the foregoing authorities, you are re-
spectfully advised that ~lt Is the opinion of this department
that the wages or compensation of men working by the month
for the various County Commissioners should be set or made
under the authority of's resolution or order duly passed at
a meeting of the CommissionersI Court and.entered upon the
minutes 6f such meeting.
         Trusting that the foregoing fully answers your ln-
quiry, we are
                                 Yours very truly
                              ATTORNEY GmERAL    OF TEXAS


                                 By s/Ardell Williams
                                      Ardell Williams
                                            Assistant

AW:mp:wc

APPROTW) DEC lgj 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman
