Untitled Texas Attorney General Opinion ( 1943 )

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN , /
Honorable II.A. Hodges
County Auditor
WIlliamson County
Georgetown,Texas
Dear Sir:
of your letter of re-
cent date reque department upon the
above stated an quote from your letter
as follows:
ed to you for an opin-
and several of the Rules
K. Doak of Taylor, Texas,
r of Births and Deaths by
ealth and approved by the
the City Clerk of
s Registrar. The
ty with Ei'popula-
through June,
his bill each
amount due him
ime he registered
1135 births and deaths for a total considerationof
$566.50. Dr. Doak has submitted to the Commissiohers
Court of Williamson County a bill for $566.50, under
date of August 26, 1943, and a certified copy from
Dr. W. A. Davis, State Registrar of Vital Statistics,
certifyingthe number of births and deaths for each
month from June, 1941, through June, 1943. This Is
Honorable ,H.A. Hodges, page 22
the first demand made by Dr. Doak for the payment
of these Birth and Death Certificatesover the period
from June 17, 1941, through June, 1943.
"Dr. Doak, at the end of ea,chmonth, from June,
1941,~throughJune, 1943, submittedhis bill to the
City of T@lor and this bill was paid promptly by the
City of Taylor.
"The city of Taylor does not have any ordinance
providing for the Clerk or Secretary for the City of
Ta lor to perform the duties of Registrar. In June,
19f1, the City Clerk of Taylor reflsed to act as
local Registrar a,ndthe State Board of Health, with
the approval of the Mayor, appointed Dr. ,Doakas the
1 Local Registrar.
"Dr. Doak has been paid by the City in full and
is now requestingthe County to pay him for the same
Certificatesfor which the City has already paid him.
It is the understandingbetween Dr. Doak a.ndthe City
of Taylor that If the County pays Dr. Doak the $566.50
he will endorse the check to the City and the money
will be deposited to the credit of the City of Tay-
lor. It is further to be observed that Dr. Doak in
performingthe duties of Local Registrarhas each month,
from June 17, 1941, through June, 1943, send a copy
of the Birth or Death Certificatesto the County Clerk
for recording as provided by 1a.w.
“The two questions which I would like for YOU to
answer are:
"'Is Williamson County, under the above statement
of facts, liable to Dr. E. K. Doak the Local Regis-
trar, duly.appointedby the City of Taylor~,for Birth
and Death Certificates,prepared by him and forwarded
to the County Clerk of Williamson County from June 17,
1941, through June, 19431'
"Under the above statement Of facts, is Wllllam-
son County liable to the City of Taylor for the Certl-
ficates which the City of Taylor paid Dr. Doak for re-
cording during the period from June 17, 1941, through
June, 1943?~"
Honorable H. A. Hodges, page 3
Rule 53a of Article 4477, Vernon’s Texas Civil Stat-
utes, provides as follows:
“That each Local Registrar shall be,paid the sum
of Fifty (50) Cents for each birth and death certi-
ficate properly and completelymade out a.ndregister-
ed.wlth him, and correctly recorded and promptly re-
turned by him to the State Bureau of Vital Statistics,
as required by this Act, unless such Local Regis-
trar shall be acting as Registrar of Birth and Deaths
in an incorporatedcity where the compensationof
the RegSstrar is otherwise fixed by city ordinance.
“The State Registrar shall annually certify to
the,County CommissionersCourt orCountyAuditor, as
the case may be, the number of birth and death certi-
: ficates filed by each Local Registrar at the rate
fixed,herein,and provided that the State Registrar
’may renderssuch statementsmonthly or quarterly,at
the discretionof the State Board .ofHealth, and the
CommissionersCourt or County Auditor, as the case
may be, shall audit such statementsand the County
’ Treasurer shall peg such fees as are approved by the
CommissionersCourt or the County Auditor, at the
time such statement Is issued.
“And provided further, thatthe Justice of the
Peace, City Clerk or Secretary,and the appointed
Local Registrar shall submit to the Commissioners
Court or County Auditor, as the case may be, a true
s.ndaccurate copy of each birth and death certificate
filed with him, and such copies shall bear his,file
date and signatureand shall be deposited in the
County Clerk% office. The County Clerk shall be
paid for indexing and preserving such records, such
compensationas may be agreed upon by the Commlsslon-
ers Court.”
This department in Opinion Ros. O-3874 and O-4583,
copies of which are’enclosedherewith for your convenience,ren-
dered~its opinion as to the’proper constructiont0 be placed UP-
on the above quoted rule of Article 4477, supra. As pointed out
in these enclosed opinions the county, In the absence of a city
Honorable H. A. Hodges, page 4
ordinance providing for compensationof these local registrars,
was the political subdivisionliable for payment of the prescrib-
ed fees of such registrars.
The city of Taylor accordign to the informationfur-
nished us had not passed an ordinanceproviding for compensa-
tion of Its local registra.r.Therefore, from June, 1941, to
June, 1943, the local registrar could not have legally demanded
payment of his fees from the City of Taslor and upon such a
presentationof his claim the city could have rightfully turned
itdown. The registrar could have, however, by performinghis
duties in accordance to the a~ppropriateprovisionsof Article
4477, supra, lawfully demanded payment of his claim for fees
from Williamson County, since the county was actually Indebted
for the performanceof these services. The query then arises
whether or not the fact the City oftTaylor did pay for the ren-
dition of these services by the local registrar seemingly out of
its own volition alters the situation in any wa.y.
The Texas courts have held that pa.ymentof an obliga-
tion by a third party, although without the debtor's request,
if accepted as such by the creditor,dischargesthe obligation
so far as the creditor Is concerned. Holland v. De Walt, 223
3. W. 217, writ of error dismissed;General Banking and Casual-
ty Ins. Co. v. Moseley, 174 S.W. 1031, reversed on other
grounds, 110 Tex. 529, 222 S.W. 961. According to the facts
furnished us, It cannot be tenably contended thatthe local
registrar did not accept the fees from the City of Taylor in
full and complete payment for the serviceshe rendered in that
capacity. The registrar cou,ldnot now present hisclaim to
Williamson County and contend It was due and unpaid when In
fact he had been fully compensatedtherefor. Thus, so far as
Williamson County and the local registrar are concerned,any
obligationexisting between them has been extinguishedand complete-
ly discharged.
We further do not believe the City of Taylor has any
claim against Williamson County for paying these fees. As
pointed out, the citY could by ordinancebe liable for these
fees. The only claim the city could have would be by subroga-
tion; that is, claim any rights the registrar ma,yhave had
against the county. It is well settled that the doctrine of
subrogationmay not be Invoked by a mere volunteerwho has paid
an obligationof another without a legal obligationto do SO
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Honorable H. A. Hodges, page 5
and an absence of compulsionor to protect an existing right.
Houston v. Shear, 210 3. W. 976, 'writof error dismissed;First
National Bank and Trust Co. v. Vordeman, 188 3. w. 695, af-
firmed 221 S.W. 685; Federal Reserve Bank of Dallas v. Smylie,
134 S. W. (26) 838. The City of Ta,ylorvoluntarilypaid the
local registrar without a legal obligationto do so, was not
forced to do so by compulsion,nor to protect any existing right.
In other words, the city vo)untarll~paid the registrar in the
true sense that the word 1s used.
It is therefore the opinion of this department that
Williamson County is not liable to the local registrar or the
City of Tagldr for re lstratlon fees accruing between June 17,
1941, and June 30, 19&3, but will be liable to the local regis-
trar for fees accruing after June 30, 1943.
Very truly yours
ATTORNEY GENERAL OF TEXAS
BY
Robert'?%%
.
Assistant
ROK:db
Enclosures
APPROVED OCT. 5, 1943
/s/ Grover Sellers
FIRST ASSISTANT
ATTORNEY GENEiRAL
APPROVED
OPINION COMMITTEE
By /s/ B. W. B., Chairman