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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. 2nd20; 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