Untitled Texas Attorney General Opinion ( 1953 )

Hon. Robert K. Ramsey Opinion No. S-38
County Attorney
Kaufman County Re: Highway Department’s interest
Kaufman, Texas in illegally collected, non-resi-
dent, registration fees and its
authority to collect same from
Dear Sir: the county.
Your request for an opinion of this office reads as fol-
lows:
“Reference is made to a letter addressed to you
from the Honorable Chairman of the State Highway Com-
mission dated March 27, 1953, requesting an~opinion re-
lative to the collection of Automobile Registration Fees,
In connection with this inquiry I would like to submit the
following questions for an opinion:
“1. Does the State Highway Commissionhave au-
thority to collect from a County, Automobile Registration
Fees paid the County by non-residents, after an admittedly
correct apportionment of such,fees under the terms of Ar-
ticle 6675a-10 has been made by the County Tax Collector?
“2. Does the Texas Highway Department have the
authority to witl:?old funds from a County’s Farm-to-Mar-
ket Road Progrz..n fo’r the purpose of enforcing such County
to pay the I-.igilway Commission Automobile Registration
Fees collected from Registering Motor Vehicles owned by
non-residents ‘of the County, after an admittedly correct
apportionment of such fees under the terms of Article
6675a-10 has been made by the County Tax Collector?
“3. After a County has received Registration Fees
for motor vehicles from non-resident owners, and deposit-
ed the county’s portion of such fees in the County Road and
Bridge Fund, after an admittedly correct apportionment of
such fees under the terms of Article 6675a-10 has been
made by the County T~LX Collector, does said County have
authority to take money out of the Road and Bridge Fund,
or any other Fund, and pay same to the Texas Highway
.- .
Hon. Robert K. Ramsey, page 2 (S-38)
Department to settle a claim of the Highway Department
for Automobile Registration Fees collected on Motor Ve-
hicles registered in the County by non-residents of, the
county7 ”
Section 2, Title 116, Chapter 1 of Vernon’s Civil Sta-
tutes of 1925 is comprised of a number of statutes beginning with Ar-
ticle 6675a-1 and terminating with Article 6686, regulating regiatra-
tion of motor vehicles. Article 6675a-2, V.C.S., reads in part:
“Every owner of a motor vehicle, trailer or semi-
trailer used or to be uskd upon the public highways of this
State shall apply each year to, the State Highway Department
through the County Tax Collector of the county in which he
resrdes for the registration of each such vehicle owned or
wed by him for the ensuing or current calendar year
or unexpired portion thereof.” )’
Subsequent statutes levy fees upon,tbe motor vehicle., and, Article
6675a-10, V.C.S. requires the County Tax Collector to collect the fees
and apportion such moneys between the county’s Road and Bridge Fund
and the State tiighway Department.
(I) The collection by the County Tax Collector of Regis-
tration fees from non-resident motor vehicle owners is an unlawful
collection. Miller v. Foard County, 59 S.W.Zd 277 (Tex.Civ.App. 1933).
There is a complete dearth of cases interpreting the authority of the
State Highway Department to require the county to pay over such fees
to the Department, This office in the past has consistently hcld.that
the County Tax Collector is the agent of ~the State Highway Department
when he acts by virtue of the registratfon laws., See Atty. Gen. Op. NOS.
O-2050 (hkch i8, 1940) and V-234 (June 5, 1947). Tha County Tax
Collector issues the Highway Department’s license receipts and license
plates to motor vehicle owners upon their filing of applications, also
supplied by the Highway Department, and the pnyment of a fee by such
motor vehicle owner. The Collector holds him&elf out to the public as
having acted in behalf of the Highway Department. The Registration
fees ~;le~~s~re in the nature of e toll for the use of the highway,”
Payn e y 145 Tex. 237, 196 S.W.2d 493,; (1946). and, the High-
way Department is the age&y designated by the legislature to be vert-
ed with the control of our Highway s at&. Robbim V. Limestone
County, 114 Tex. 345, 268 S.W. 915 r 1925).
Article 66758-9 provides that the Highway Department
is to furnish the County Tax Collector a “complhte and detailed achc-
dule of license fees to be collected” on the various types of vehicles,
such fees to be determinad by the Highway Department. Article 6675a-
10s establishes in the Department the pdwsr to make careful audits of
Hon. Robert K. Ramsey, page 3 (S-38)
the license fees collected pursuant to the laws of registering motor ve-
hicles. Article 6684 specifically grants to the Department the authori-
ty to determine the classification of vehicles and the amount of fees to
be paid by such vehicle owners.
A fact further substantiating the view that the County Tax
Collector acts as the agent ~of the Highway Department, rather than his
County, is the statutory fee to which he is entitled, compensatory for re-
gistering motor vehicles. See Article 6675a- 11, V.C.S. Such a provision
is in accord with the general practice of compensating an officer of one
governmental unit for collecting taxes levied by and owing another unit.
51 Am Sur. 844, Taxation, Set: 964.
“Accounting for Moneys Received Officially but
without Authority. A Collector of taxes must pay over
to the proper authorities all funds which come into his
hands officially, regardless of whether the tax collect-
ed by him was a constitutional tax, or whether it was
illegal or void, or improperly collected. Whatever he
actually collects as taxes by virtue of his office he must
pay over to the body politic for which he was acting; . , .”
873,
51 Am. Jur.
The County is not entitled to any funds not lawfully collec-
ted by virtue of the Registration statutes. The Tax Collector should pay
such moneys over to the body politic for which he was acting, in this in-
stance the State Highway Department. When unlawfully collected fees
are given to the custody of the County, the Department has a lawful
claim against the wrong custodian. 4 Cooley on Taxation (4th Ed.) 3212
Sec. 1006; 51 Am. Jur. 845, Tzxation, Sec. 965.
(2) Your second question assumes that the Highway De-
partment withholds the benefits of the Farm-to-Market Road Program
solely for the reason of enforcing the collection of non-resident fees
from the counties.
In matters of judgment touching upon the Highway Com-
missioners’ functions, theirs, and not that of another, is supreme. Their
acts in the exercise of an honest discretion, untainted by fraud, accident
or mistake occurring in their performance, or abuse of discretion as
under the authorities would avoid the same, must be respected. Bobbitt
v. Gordon, 108 S.W.2d 234 (Tex.Civ.App. 1937). The Highway Depart-
ment s fund from which it pays for the Farm-to-Market Road Program
receives its moneys from various sources, including the federal govern-
ment. The moneys provided by the motor vehicle taxes and allocated to
the Department by Article 7083a (4-b) V.C.S. supplies a good portion of
the money used in the program as well as the legislature’s mandate to
the Highway Department as to how the money should be spent. This
. .
Hon. Robert K. Ramsey, page 4 (S-38)
statute states in part:
“These funds shall be expanded on a system of
roads selected by the State Highway Department after
consultation with the county commiaaioners courts of
the counties of Texas relative to the most needed un-
improved rural roads in the counties involved. The
selections shall be made in a manner to insure equit-
able arid judicious distribution of funds and work among
the several counties of the State,”
A similar statutory mandate to the commissioners’
courts in their expenditures, Article 6740, V.C.S., was discussed
in Stovall v. Shivers, 103 S.W.2d 3.63 (Tex. Comm. App. 1937). In
the light of the discussion by the Court in this latter cited case, and
in view of the arsumption that no consideration was taken of the roads’
needs in withholding their Farm-to-Market Road Program, it is our
opinion that the Highway Department does not have authority to with-
hold the Program under the azsumed state of facts.
(3) The Highway Department has a valid claim against
the County for the unlawfully collected non-resident Registration fees
and the County is authorized to pay this claim, Article 2351-10, V.C.S.
SJIM,MAR Y
Non-resident registration fees, unlawfully collected’,
should be paid dver to the State Highway Department. The State High-
way Department is not authorized to withhold the Farm-to-Market
Road Program from a county solely as a means to collect the non-
resident fees, from said county, The county is authorized to pay the
Highway Department any lawful claim exerted by the Department againat
the county.
Yours very truly,
APPROVED: JOHN BEN SHEPPERD
Attorney General
W. V. Geppert
Taxation Division
,$&&&q/
Willis E. Grerham
Reviewer William W. Guild
Assistant
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General