Untitled Texas Attorney General Opinion ( 1949 )

Hon. Joe B. Fleming, Chairman
Committee on Revenue and Taxation
House of Representatives
Fifty-first Legislature
Austin, Texas Opinion No, V-822
Re: Constitutionality of H. B.
534 providing for pay-
ment of certain metor
fuel taxes to cities.
Dear Sir:
In your letter of March 30, 1949, you state:
“In accordance with a motion adopted at a meeting
of the Committee on Revenue and Taxation, I hereby
forward to you House Bill No. 534 and request an opin-
ion as to its constitutionality.”
House Bill 534 provides that each public transportation
company and each taxicab, company operating under franchise or
permit from and in an incorporated city shall report to the Comp-
troller each year the quantity of motor fuel upon which motor fuel
taxes have been paid for whfhh taxes no refunds are claimed. The
Comptroller is to calculate the amount of taxes paid by said com-
panies and set up an account for each city for the taxes paid by the
companies franchised, licensed, and operating therein. After allo-
cation to the Available School Fund of one-fourth of the net reve-
nues of the taxes and after deducting the one per cent allowed dis-
tributors upon the first sale, the Comptroller is then to pay over
to each city the remaining portion of the taxes paid by the companies
operating therein.
By Section 5 of the Act the cities are required to use such
funds “for the sole purpose of acquiring right of way, constructing.
maintaining and policing public roadways and for the administration
of such laws as may be prescribed by the LegLslrture pertaining to
the supervision of traffic and safety on such reads, p (I QD
Motor fuel taxes paid by motor bus companfas regulated
by the Railroad Commission are exprecely excluded from the op-
eration of House Bill 534<
Hon. Joe B. Fleming, Page 2 (V-822)
The Act further provides for penalties, contains a sever-
ability clause, and declares an emergency.
The provisions of the Motor Fuel Tax Act are carried in
Article 7065-b. Vernon’s Civil Statutes. The taxes are paid to the
State Treasurer for the use and benefit of the State, and detailed
provision is made for their allocation, Section 7-a of Article VIII
of the Constitution of Texas, in so far as relevant herein, provides
as followst
*Subject to legislative appropriation, allocation
and direction, all net revenues remaining after pay-
ment of all refunds . . . and expensea of collection de-
rived from , , . taxes . . . on motor fuels and lubricants
used to propel motor vehicles over public roadways,
shall be used for the sole purpose of acquiring rights-
of-way, constructing, maintaining, and policing such
public roadways, and for the administration of such laws
as may be prescribed by the Legislature pertaining to
the supervision of traffic and safety on such roads , . .
provided, however, that one-fourth (l/4) of such net
revenues from the motor fuel tax shall be allocated to
the Available School Fund . . .*
We think it evident that the term “public roadways” as used
in the above quoted section was intended to include “city streets..
This section deals with tha taxes *on motor fuels and lubricants
used..to propel motor vehicles over public roadways . . ,” This un-
doubtedly includes the taxes paid on motor fuels used to propel mo-
tor vehicles over city streets. When provision is made for expend-
ing the tax revenues the reference is to “such public roadways”.
Thus it is apparent that “public roadways” includes “city streets”
or else the taxes collected on motor fuels consumed by motor vehi-
cles operating excluaivoly on city streets are not included within
this constitutional provision. We are therefore of the opinion that
the provisions of House Bill 534 are in accord with the provisions
of this section, and turn to a consideration of the other sections of
the Constitution which are here applicable,
Absent the existence of a *public calamity,” Section 51 of
Article III prohibits gratuitous donations or grants of public mon-
eys to municipal corporationsi but the State may grant funds to be
used for governmental purposes. Road Dist, No. 4, Shelby County,
V, Allred, 123 Tex. 77, 68 S.W.2d I64 (1934) Cities’do not own
their streets and alleys in a proprietary ca;acity. City of Beau-
mont v, Gulf States Utilities Co., 163 S,W.Zd 426 (Ter. Civ. App.
1942, error ret. w.o.m.1. “They are ‘the property of and for the
Hon. Joe B. Fleming, Page 3 (V-822)
use of the state, which, through its Legislature, has absolute con-
trol over same, which control it may or may not from time to time
delegate to local authorities. ’ ’ West v. City of Waco, 116 Tex: 472,
478, 294 S.W. 832, 834 (1927). The construction of public highways
is a governmental function properly belonging to the State, and it
therefore follows that the State may use the cities in the discharge
of this function without violating this section. Jefferson County v.
Board of County and District Road Indebtedness, 143 Tex. 189, 182
. . 908 [ 1 Y44).
As previously stated, the tares which are covered by House
Bill 534 will have been paid into the State Treasury. Having deter-
mined that these State funds may be properly granted for the pur-
poses stated in House Bill 534, and assuming that the framers of the
Bill desire to make these funds available to cities during the com-
ing biennium, the next question is whether the bill satisfies the fol-
lowing requirements of Section 6 of Article VIII:
“No money shall be drawn from the Treasury but
in pursuance of specific appropriations made by law;
nor shall any appropriation of money be made for a
longer term than two years . . .”
We have come to the conclusion that the bill as drawn does
not satisfy these requirements.
If the terms of House Bill 534 could be deemed an other-
wise adequate appropriation of the funds therein allocated, in so far
as such appropriation purports to be for an iadefinite period of time
it is clearly at variance with the terms of the above quoted provi-
sion. However, a violation of this provision does not invalidate the
entire Act. Friedman v. American Surety Co. of New York, 137 Tex.
149, 166, 174, 151 S.W.Zd 570 580 584 (1941). The courts of this
State have upheld attempted cbntinuing appropriations as valid for
the constitutional two year period. In-Atkins v. State Highway De-
partment, 201 S.W. 226 (Tex. Civ. App. 1918). an appropriating sec-
tion. in manv resuects similar to certain nrovisions of House Bill
534, was heid valid for the two year period. However, we think that
the following language of the Supreme Court in County of Dallas v.
McCombs, 135 Tex. 272, 276, 140 S.W.Zd 1109, nil (1940), pre-
cludes our so holding in the instant case. The court said:
“Plaintiff in error contends that even if this appro-
priation running for five years is in violation of the two
years’ provision of Section 6 of Article VIII of our Con-
stitution as applied to the five year period taken as a
whole, still it is not in violation of such constitutional
.
Hon. Joe B. Fleming, Page 4 (V-822)
provision as applied to the first two yeara of the five
year period, It seems to b,e the law that where the Leg-
islature has made ‘an appropriation in unmistakable
terms,’ which continues for a longer period th tw
years, such appropriation may be upheld for tttfirit
two years, and would be inoperative thereafter. Pickle
v, Finley, 91 Tex. 484, 44 S.W. 480, 482. It will be
noted that the rule of law announced in Pickle v. Finley,
supra, contemplates that that appropriation shall be
made ‘in unmistakable terms.’ We interpret this to
mean that if an appropriation is made for more than
two years, it can be enforced for the first two years if
it appears that the Legislature undoubtedly intended
such appropriation to operate for two years, regardless
of whether or not it could de so thereafter. We think
that this rule cannot aid this appropriation, because
when all of the provisions of this Act are considered to-
gether, we cannot say that the Legislature would un-
doubtedly have passed it to operate for two years only,
instead of five years as provided by the Act,” (Emphasis
added by the court.)
We are of the opinion that House Bill 534 has failed to make
“an appropriation in unmistakable terms.” Tke caption of the Act
provides that the taxes “shall be paid over by the State Comptroller
each year to each such city”: the body of the bill simply repeats this
mandate, adding the details summariaed at the outset of this opin-
ion. Nor do we think,, should this bill become a law and its interpre-
tatio,n the subject of litigation, that the courts would say that in view
of all, its provisions the Legislature would have undoubtedly passed
it to operate for two years only instead of for the indefinite period
of time for which it presently provides. We are further motivated
in our holding-by the fact that House Bill 534 may be very easily
changed to show an appropriation in unmistakable terms, limited to
the constitutional two year period, in which case the caption should,
of course, reflect sach Change. In reaching the conclusion that House
Bill 534 does not make any valid appropriation, we have taken the
direction that “the Comptroller shall pay over” to the cities to mean
that he shall draw a warrant on the State Treasury for the proper
amount due each city under the Act. House Bill 534 nowhere attempts
to prevent deposit in the State Treasury of the motor fuel taxes cov-
ered by the Act. In any event, the character of these public funds
would not thereby be changed, and Article VIII, Section 6 would still
be controlling,
.
Hon. Joe B. Fleming, Page 5 (V-822)
None of the provisions of House Bill 534 are uncen-
stitutional; but said Bill fails to make a present appro-
priation of the tax funds for the purposes therein’stated
since the requirements of Section 6 of Article VIII of
the Term Constitution have not been met. County of Dal-
las v, McCombs, 1.35 Tex. 272, 140 S.W.2d 1109.
Very truly yours
A,TTORNEY GENERAL OF TEXAS
By /?izLzzm
Mrs. Marietta McGrcgo
Assistant
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ATTORNEYGENERAL