                       February 28, 1949.

Hon. Max E; Ramsey                 Opinion No.   v-780.
County Attorney   -
Andrews county                     Re: The legaiity  of the pro-
Andrews, Texas                         posed expenditure of’road
                                       bond funds 88 hit relates
                                       to the bond elk&ion    or-
                                       der,
Dear Mr., Ramsey:
             Your. request   for   an opinion    is substtitlailg
as follows:‘.
            -“In March, 1948, there Wa8 held in An-
      drew County. a bond election      for the purpose
      of determidln~ whether or not bonds s.hould
      be issried In the &mount~oS $260,000.0~ for
      road. purposes.,  In the offlclal~ ballot ‘the
      proposal was stated In’~the following     manner:
          “%OR ‘the issuance ~of $260,0bO.OD-
         .tiondri. and the ls+yi@ of. the. t&+es~‘Ln
          payment thereof; ‘the: proceeds to:,be., :. .,
          expkded on apprdximately twentf ‘in+.le~
          of road from Andrew& to’the &wsori
          County line, in a notitheasteplg    dir~ec-
          tlon. toward Lamesa. t
            ‘The result of this &e&Ion         was favor-
      able and In furtherance    oS.thes&plans       a con-
      tract vas entered into .betwee& Antiews county.
      and the State of’ Texas- SOP.the consttiuctlori
      of the ~oado It was subsequently proposed
      that this road be constructed       from a pbint
      two miles east of the town of Andrevs anil go-
      ing in a northeasterly    dlrectlon     to a point.
      on the east boundarg.line     of AndPews County,
      appyoximatelg six br seven milea south of the
      corner .oS Dawson County; the. same being ~‘t,&
      boundary line between. Andrews Comtf and ‘tip-
      tfn~ County.
                                                                .   .




Eon. Mm E. Ramsey, Page 2 (v-780)


           “It was orlglnally    the *tent&n       that a
     road be built Prom Andrews to Lamesa by the
     most direct route possible,        At the time the
     Commissioners’ Court ordered the election          It
     was insisted   by interested    citizens    in the
     County that the location      be specifically    des-
     ignated and for that reason the insertion          was
     made; ‘to the Dawson County line.’          Prior to
     the election   and also prior to the time tp
     @&l;;ivas      circulated    the Commissioners
                   composed of different      Individuals
     than that Y ourt which, ordered the election,
     had a survey made from Andrew6 in as direct
     a route as possible     to the extreme northeast
     corner of the county.      It would seem that the
     intentions   were rather clearly      explained by
     these actions but It was generally thought
     that the road would go as shown on the ht-
     tached sketch of my letter.
            “The questicq now arises as ‘to the au-
     thority of the Couimlsslonerst Court In An-
     drew8 County in building this’road    from a
     point two miles east OS Andrews to the HartIn
     County line to a point seven or eight miles
     south OS the northeast corner of Andrewa
     county. ‘I
           In an opinion numbered O-6973 dated“December
12, 1945, rendered in a prior admlni6tpatlon,   this of-
fice stated:
             “It has repeatedly been held by the Ap-
     pellate    Courts of this State that when a
     cdunty commlssioners~        court enters a pre-
     election    order designating      the road and spe-
     cifically    declaring    the purpose Sor which
     the bond money is to be expended, SaLa, com-
     missIoneras court, or subsequent. commission-
     ers D courts 0 cannot change the designation          of
     such road or expend the money Soi? any other
     purpose than that specifically          designated in
     the pre-election      order.    Black’v.    Strength,
     246 S. W. 79, Fletcher V* Ely, 53 S. W. (26)
     E17k errr     refused, Moore v. Kaufman, 200
       0 .           Any other rule vould tend to un-
     dermine pibllc      confidence    in the acts of pub-
     lic officers q See also Golden @ate Bridge
    Hon. Max 15. Ramsey, Page 3 w-780)


           and Highway District v. Fllmer, 21 Pac. L2d)
           112, Perry v. Los Angeles, 203 Pac. 992.
               In an opinion numbered O-4078 dated October
    15, 1941, rendered in a prior admlnlstratlon,  this of-
    fice stated:
                "The purposes for which the proceeds of
         the bonds were to be used being a part of the
         election   proceedings would require that the
         Sunds derived from said bonds be used only ln
         accordance therewith.    In the case of Moore
         v. Coffman, 200 S. W. 374, the general rule
         IS laid down by the Supreme Court and Is sub-
         stantially   that IS the purpose for lssulng
         bonds Is speclflcally   stated in the petition,
         order and notice of election,   the voters have
         the right to rely on such statement and the
         use of such bond funds othervlsewould be pro-
      '. hiblted by law. Such a statement becomes a
.        part OS an Implied aontract entered Into be-
         tween the voters and the authorltles    entrust-
         ed vlth the expenditure of such fumls.~”
                Inasmuch as the question presented'18      a fac-
    tual one, It resolves Itself     into the proposition    of
    whether the Woposed change In the road Srom Andrew8 to
    Lamesa LB ln subatantlalcompliance with the will of
    the voters as expressed ln the bond election.         While It
    i.8 true that,the  lav does not require a literal      per-
    formance, nevertheless     it is out opinion that there Is
    such a material change ln the proposed route from that
    designated in the bond election       order that It would not
    be ln substantial    compliance.    It Is to be noted that
    the otilglnal route was from Andzoews to the Dawson Coun-
    ty line vhereas the proposed change would ln no vise
    touch the Dawson County line but on the coritrary would
    be to the Martin County line.
                In the case of Fletcher    v. Ely, 53 S. W.(2d),
    817,   the Court state&
                  "That, in the absence of a definite
           ldentlflcatlon    of the specific road to be
           paved, a discretion    exists in the cormrrisslon-
           em I court as to-which of two OP more routes
           may be followed between control points named
           In the pre-election    orders, which discretion,
           however, ma7 be and Is surrendered when in
Hon. Max E. Ramsey, Page 4 iv-780)


     response to a referendum, under. a proper..or-
     dei+ of submission, the @artlc@&r rotits:ai!d
     road to be paved 1s IdentlSled .tid named. :.
     a .
           “That, when the voters thus ‘spsarc~yne
     proceeds of the bond Issue arti ~‘e~m&rkedt’~
     with the character of a trust fund’:whlch may
     not be diverted to iin?ther purpose or pro-
     ject,  and any such attempt will be,enjoQed
     bg a court of equity.      The result ‘thtis~ ob-,
     talned has been referred     to as having the
     binding effect    and force of a contra&;
     Black v. Strength, 112 Tex. 188, 246 S..W.
     79; 19 R. C. L. pp 1163, 1164; Roane Cotity,~
     Court v. !‘Brlen,    95 W. Va. 32, 122 S., E.
     352, 355.
            By virtue of the ~foregoliig authorl~y%n!% ~ttie.
opinions   heretofore  rendered, it ii3-‘our op‘*lori.~;th,~~ :tae
proposed   change Is not In subs~tant$&l co~pl~~ce       .w$th
the will   of the voterp prevlousfg:expressed.
                          SUMMARY
           Where the electorate ~has voted bonds’
     to raise money to be. expehded on a.$+rt+X.+             .:
     la3 road, the route:des%g&ateQ mus$ ,subr:~.:.c,
     stantlally  comply with the route..specifled
     In the bond proceedings..
           The proposed routing of the road iii
     question 1s not in substantial  compliance
     with the will OS the voters previously   ex:
     bressed.




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