Untitled Texas Attorney General Opinion ( 1939 )


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  •              THE    ATBXB&EY             GE~EBAL
    UD)F TEXAS
    AUSTIN,   T-R     18711
    Hon. Ned 0. Wallace
    Assistant District Attorney
    Conroe, Texas
    Dear Sir:                  Opinion No. o-1014
    Re: Can IndependentSchool Dir&riot
    Board award a contract fop the
    purchases of material to be
    bought from a member?
    Your request’for an opinion bn the question as ia herein stated
    has been received by this offdce.
    Your letter reads in part a8 follows:
    “Question: Under our laws governing Independent
    School Mstrlcts, can the School Board award a
    contract for the purchase of material to ,bebought from
    one of the members of the Board who Is regularly engaged
    in the selling of eaid material?”                    :
    We quote from Texas Jurisprudence,‘Vol.37, page 864, as follows1
    “School districts are quasi public corporation. It is said
    by the courts, particularlywith inference to Independent
    districts, that they are of the same general character as
    municipal corporations;in other words, ‘quasimunicipal
    corporations,f~which~derive their powers by delegationfrom
    the State., They are state agencies, erected and employed
    for the purpose of administeringthe state’s system of
    public schools.” Love vs. City of Dallas, 
    40 S.W. 2nd
    20;
    Thompson vs. Elmo Ind. School Dist., 269SW 868.
    As is the rule generally,Xhe trustees of independent districts
    possess only the powers expressly conferred by law or, necessarily
    Implied from the powers conferred. Originally, the statute
    Article 2758, R.C.S. granted to trustees of Independentdistricts
    the same authority, as regards to the 6stabllshmentand malnten-
    ,and.e
    of schools, that is conferred upon the governing bodi& of
    incorporatedcities and towns; and in determiningthe authorityi
    of such board the courts have applied the same rule as applied to
    municiljalcorporations. As amendad,’the statutes  merely give the
    authority conferred by law upon inaepen’dentschool districte.
    Hon. Ned G. Wallace, Page 2   O-1014
    We quote from Texas Jurisprudence,Vol. 37, page 943, a8 follows:
    “A quasi pub110 corporation,such as a school district,
    which owes special duties to the public, may not enter
    into any contract that is not expresaly.authorlzed by
    law.... An independentdistrict is a municipalitywithin
    the meaning of the constitutionalprovision (Art. 3, Sec. 53)
    providing that "The Legislatureshall have no power to grant,
    or to authorize any county or municipal authority to grant,
    ....nor pay, nor authorize the payment of, any claim created
    against any county or municipalityof the State, under’any
    agreement or contract, made without authority of law."'
    The members of a board of an independentschool district are elected
    public officers and the constitution and statutes prohibit various
    officers deainnated therein from being intersted in certain DUbliC
    contracts. &tracts in which the officer who made them may-have
    a personal interest, and contracts giving an officer a personal
    interest in any official act to be done by him are clearly con-
    trary to public policy and void.
    In Vol. 44, Corpus Jurls, page,%, we find the following rule:
    "It la the general rule that municipal contracts In which
    officers or employees of the city have a personal pecuniary
    Interest are void."
    r:
    We quote from Corpus Jurls, Vol. 56, page 485.as follows:
    % some jurlsdlotlonaatatutes'provldethat a member of
    a school board or a school officer cannot/on behalf of the
    school district or other local school organizationenter
    Into a contract In which.he has an individualinterest, and
    .~ that In such case the contract is void. Aside from express
    /statutory enactment, such a contract is against public policy,
    and In some jurisdictionsit is held that a contract so
    entered into is void, but in other jurladictlonasuch
    contracts are merely ,voldable,and~are binding when properly
    ratified."
    In the,caae of Royce Ind. School'Diat.vs. Reinhardt, 
    159 S.W. 1010
    , the Court of Civil Appeals for the Dallas, District held that
    since the board of trustees is a creature of the statutes that It
    has only such powers as are conferred upon it and such implied
    powera a8 are necessary,to execute such 'expresspowers.
    yh; departmentheld in a conference opinion In Rook 50, page 411,
    :
    *\
    *       .      .
    ,
    Hon. Ned G. Wallace, Page 3,    O-1014 ‘I
    “A contraat for -the sale of supplies.to~a State Normal
    School made by a corpoI$tlon,the President and General
    Manager of which ie President of the State Normal School
    Board of Regents Is contrary to p’ubllcpolicy and void.
    “Statutes’prohibitingofficials from cont&atLng on behalf
    of the State~with themeslves are but declaratoryof the
    common law;
    “That a member .oPan official‘boarddid’not castshis vote
    In,:favor of’letting the contr&t to a corporationIn which
    he was a 8tdckholderwould not relieve the transactionfrom
    the operation of the rule.”
    We quote from Storey on Agenc.y,Sec.-211, a’sfollows:
    “An agentto sell cannot become the purchaser,thie.
    principal is believed to pervade both the civil and common
    law jurisprudence;”
    In di.scuaslngagreements pending to official aorruptlon or injury
    to the public, Elliotls~Commentarieson the Law of Contracta,
    ,,Vol.2; Sec. 706, states the rule in this-languageas follows:
    “Agreementswhich t.endto’official corruption or Injury
    of the public service may not be entered Into either directly
    with the official or with a third person who is to bring
    improper lnfkaence to bear upon such official. The courts
    will unheaitatlqly pronounce illegal and void, and being
    contrary to public policy, those contract8 entered into by
    an officer or agent of the public which naturally tend to
    induce suah officer oragent to become remiss in-his duty
    +       to the public. Nor 3.8it necessary for the officer or:agent
    to bind himself to violate his duties to the public in order
    to bring such an agreement within ti)eoperation of the rule.
    Any agreement by which he’places hlmaelf or is placed in a
    position which 5.einconeietent~withhis duties to the public
    and ha8 a tendency to induce hlm to Violate such duties, is
    clearly illegal’and void.w
    The following section deal&g,wkh      intereat of a public official
    is in part as followa:
    ‘tinderthis principal, contracts‘forservices or mateHa
    In which public officers have an Individual Interest, are
    prohibited. Independently’ofany statute or,precedent,
    upon the general,prlncipalOS law and morality, a member of
    an offlcial,boardcannot contraot with the boo@ of which he
    la a member.’ Davideon vs. Gllford Company, 152 N.C. ‘3436;
    State vs. EWindell,156 Ind. 648.
    Hon. Net30. Wallace, Page 16,04014
    We quote from the case of Cheney vs. Unroe, 166 Ind.;550, a8
    follows:
    “It is a well ~establishedand salutary doctrine, that he
    who Is entrustedwith the business of others cannot be allowed
    to make such buslness~anobject of pecuniary profit to himself.
    This rule 40s~ n,o?depend .r?n
    reasoriing.technlcalIn Its
    character,and la not local in Its application. It ia based on
    principals of reason, of morality and of public policy. It has
    its foundation 1n:the very ?nnstltutionof our nature for It
    has authoritatlvely’~b‘een.~declared
    that & man cannot serv@ two
    masters, aMi& recognizedand enforced wherever a regulated
    system of j.urieprudenceprevails.”
    ‘Inthe case of the City of Fort Wayne vs.~Rosenthal,74 Ind. 156, it
    was hel.4that an employmentby a board of health of one of its
    members to vaccinatepupils in a public school is void. The court
    said:
    “As agent, he cannot contract with himself personklly. He .
    cannot buy what he Is employed to sell. If employed to
    procure a aervlce to be done, he cannot ~hlrehimself to do it.
    ~~;t~prlne    $8 generally ap@llcable to’prlvate agents and
    * but to public offioere it applies with greater
    force, &d sound policies require that there be no relaxation
    of its stringencyin any case which comes within Its reason.,”
    me reports abound in cases’based u&n i&atutes prohibiting
    officials becoming Interestedin contracts with the state. Statutes
    of this character,however, are nothing more than the adoption of
    the common law rule to the effect that one &cannotin his official
    capacity deal with himself as an individual. In the case of Smith
    ve. Albany; 61 M &@, the$.NewYork Court of Appeals in discuaslng
    this.rule said:
    “It 18 unlawful for a member of any common counsel of,any
    city in this state to become a contractor,undermy contract
    authorizedby the common counsel, and authorizingsuch
    contracts to be dehlardd void at the instance of the city, has
    not wrought a change in th6 rule referred to; it is, so far as
    it goes, elmply dei?laratoryof the law as it exl,atedPXWriOUS
    to the paaoage of the act of 1843.”
    The Supreme Court of Texas dlscuaslngthe rule In Wills vs. Abbey,
    
    27 Tex. 203
    , saying:
    “Publicpolicies required thBt the offiicerschosen to locate
    and survey the public lando kil’&?uld
    not be permitted to ...
    epeculs;te.them,or to acquire Interest in them, which would
    present to such officers the temptatlon~totake advantage’of
    Hon. Ned 0. Wallace, Page 5, O-1014
    the informationwhich their offlclal*posltionsenable them
    to acquire+ to the detriment 6f the holders of certificates
    generally.
    We quote from 9 Cyc. 485 as follows:
    ‘A people can haireno higher public Interest,except the
    preservationof their liberties,than Integrityand the
    administrationof their government and all of Its depart-
    merits. It Is therefore a prlncfpal of the CommOn law that
    it will not lend its aid to enforcementof the contract to
    do an act which tends to corrupt or contaminate,by Improper
    and sinister influences,the Integrity of our social or
    political lnstltutlons. Public officers should act from
    high considerationof public duty, and hence every agreement
    whose tendency or object is to sully the purity or miaQad
    the judgment of those to whom the highest trust la confided
    is condemned by the courts.  The officer may be an executive,
    a&ninistr&tive, legislativeor judlcdal officer. The
    principal is the same in either case.”
    In view of the foregoing a:thoritiea,you are respectfullyadvised
    that It is the opinion of this departmentthat the board OS an
    independentschool district cannot award a contract for the
    purchase of material to be bought from a ~memberof the board..
    Trusting that the foregoing answers your inquiry, we remain
    Very truly yours
    ATTORNEY GENERAL OF TEXAS
    By   a/ Ardell wllliama
    Ardell Wllllams
    AW:AW                                          Assistant
    APPROVED JULY 10, 1939
    a/ W. F. .Moore
    FIRST ASSISTANT
    ATTORNEY GENERAL
    Approved Osinion Committee
    By RWF, Chairman
    

Document Info

Docket Number: O-1014

Judges: Gerald Mann

Filed Date: 7/2/1939

Precedential Status: Precedential

Modified Date: 2/18/2017