Untitled Texas Attorney General Opinion ( 1944 )

747
OFtiCE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
iIonorabka Obel L. LICAllSter, ChalrIMn
coamltt88 on Sate Affairs
iiOU58 Of ~eprf358IltatlV8~
irorty-ninth Le~lslatura
Austin, Texas
Dear Sir: 0plnlon HO. O-6168
H8: Conatitutlonallt
~oufletter 0r April 27
iO5 Of this d8~rtn8llt all t0
~111 ido. 653 1s aa follow
ort and maintain
e Conmittee that pas-d
appreolate an opinion
at a8 early date as prao-
onceming the abOV8 pointed out natt8r.m
;;o. 653 la as followa:
*A all1
"To i3e &titled
*An Aot authorizlq any county, olty or town now
or hereafter inoorgorated UIId8r the gen-
era1 laws or thie Stats to organize,
opsrate, aupport and maintain a Board of
748
Zonorabla Obel L, l:oAlister, pa&e 2
County Develogllant, fiovrd of City Develop-
ment, Chamber of Commroe, or other similar
organization; authorlzlng the levy or 43 tax
for suoh purpoeea, provided such tax levy
is authorized by a majority vote ot the
property tax 2nyiAg qualiPied voter6 of
such aounty, olty or town at a;l el8otloA
held ior auoh purgose; and declaring an
8OI8rg8ACy.
"Liection 1. Any county, oity or town now or
hereafter incorporated under the general lawa Of
thin L.&ate, may, in addition to all other powers
now pOSa88S8d by Such county, city or town under
the general lawre of thin state, b8 authorized by
proper OrdinaAO8 paesad by its &overning authority,
to organize, operate, support and maintain a iioard
of Couty Deveiopment, a aoard Of City DevelopneAt,
Chamber of Com~rce or slmllar orZanlzatfon davoted
to the growth, edvertlsement, deY6lo2meAt and lm-
prOV8585t Ot 58id GOtllIty, Oity Or tOW5.
“380. 2. For the purpose 5)at forth in Seotion 1,
of thla Aat the governing authority of suoh county,
city or town is hereby authorized to levy a tax not
exaeadiry two oenta (2#) On the One Hundred Dollar
valuation or the taxable property of auoh county,
city or town provided such tax levy la first au-
thorized by a majority vote of the property tax
payins qualified votere of the county, olty or
toG;n at an election called acd held for euoh
plrrpoae a8 provided by law.
“380. 3. The fact that many oounties, oitism
and townS.have no adaquately maintained SAd Supported
organization5 devoted to tha growth, adVertiSemeAt,
development and goners1 improvement of said oountiea,
cities or towns and the faot that suoh aA organiza-
tion WCQAU be very beneflolal to the growth and
general improvement of oountles, oltlee and towns
crsatea an emergency and aA imperative public ~eoes-
Slty that the COABtitUtiOAal kid.8 reqUiri% bill5 b8
read on three several day8 in saot house be, sad the
sa3 18 hereby suspended and this i,ot shall take ef-
fect aAd be in force lroa aAd after ito passage and
it i5 80 enaoted.
749
Ionorable Lbal i.. IJoAllstar, Pat38 3
"-end Uousa Bill No. 653 by strikla& out all
b81OW the 5AaOtiog ClaU58 and substituting iA li5U
t!i8rGOf the fOllOWi5g:
"Zeotior; 1. Any county of this State, and any
city or town now or herearter incorporated UAder the
general laws of this State, ma$, in addition to a11
other poWera now pOaa8aa8d by auoh oounty, oity or
town under the general law8 of this State, be au-
thorized by proper order pasasd by the Cozmlsslonerle
Court of suoh county, or proper ordinanoe paesed by
the govsrning authority or auoh olty or town, to
organize, operate, au&port and maintain a .3oerd of
COUAty D8V8lOEJ8eAt, a Board Of city DeVelOpcleAt,
Chamber of Commaroe, or a&nZlar organization devoted
to the growth, advartirrment, d8V810pm8AtS improve-
&at and promotion of the trade and oomme~ce general-
ly Of auoh OOUAty, city Vr tOWA.
“240. 2. For the porpaaa ast forth in Section 1
oi this sot, the governing authority of such oounty,
oity or town la hereby aUthOri28d to lavy a tax not
srceadin& two (2) aoAt on tha One Hiundred Dollar
valuation 0r the taxable property or such county,
olty or town, provided auoh tax levy la flret au-
thOriZ8d by a majority vote of tL8 property tax
pagiA& qualified voters of ths oounty, oltg or
town at an ~elaotion oalled and held for euoh pur-
pose a8 provided by law.
"Sea. 3. The iaot that many counties, oltlea
aAd tOWA have no adequately maintained and aup-
gorted organizationa devoted to the growth, adrar-
tiaement, i&iprOVem~nt aAd promotion of trade aAd
ooaunerco~cAc!ralLy of 8nld jounties, oltiee and
toWna, and the faot that such an or~aAlzatloA
would be wry bensfiofal to the growth and general
iaprovement of courities, aitias and towns, oreater
an emergenoy and aA imperative publio necessity
thot the Co5StitutioA.91 Sule r8qulriAg bllla to be
read on three several days in 8a0h iiouse be, and
the anme ia hereby suspended, aAd this Act ehall
t&e erreot and be in ?oroe from aAd arter it6
paS8ag-Y and it ia a0 8n6Ot8d."
750
lionorebla 3bel L. Xcirlister, paua 4
After carefully conaideriny your request in connea-
tion Hi1t.hvarious provisioos of the Constitution aa nartiomd
herein, iye cannot categorically answer your question aa to
the constitutionality of said liOUs6 Biliho. 653. iIowever,
there are serious constitutional questions inVOlV6d to whioh
we will diraot your attention.
saotion 1 of Article VIII of the Stat6 Constitution
provides in &art:
nT6xation shall beaqual end unifonnmw
Seation 3 of hrtiale VIII is:
*Taxen shall be laviad ard oollsoted by
general 1~8~s aAd for publio purposes only.*
SeotiOn 52 of Artid III Of the Stat6 Constitution ia
in part 66 fOllOW61
'TN Legislature shall have JO power to
authorize any county, city, town or other
politiaal coryoration or eubdivision of the
Stat6 to lend its oredit, or to grant publlo
money or thing of value in aid of, or to any
individual, asaooiation or corporation what-
606V62. .e ln
Seotfon 3, Artiale XI prohlbitr any oounty, oity or
Lnunioi~llty from making ariy appropriation or donation or in
any rise loaning its amait to any private aorpor6tlo5 or
aaaooiation.
-' It will be ooted that Souse Sill 50. 653 expressly
authorizer, any aounty, city or towm now or hereafter incorpora-
ted under tha general lawa of th6 Stat.0 to OrganiZ6, Oparete,
support and maintain a Board of County Development, Board of
City 9evelopaent, Gha.6ber of ComeroB, or other similar or-
ganization devoted to the growth, advertisement, development
and iaprovament of said oounty, aity or town. Should a ocmt:,
city or town atteinpt to aid a CharPber of Comeroe or similar
organization eat&g aa ec $nCepandent aesoolation, auoh act
or aots would contravene Sootion 52, Artiole III of the State
Constitution.
It has been held by the suprem Court fn the case of
aavis et al vs. City of Taylor, et al, 67 9. V. (26) 1033, that
a horn rule city had authority to 6Xp6na mar for th6 purpose
of advertising.
ilormrable (Ibel L. Lo.Alistsr, peea 5
Je $uote from the case of Davis vs. City of Taylor,
supza, as follows:
“Art1016 8, Ssotion 3, of the Constitution
provider:
**Taxes shell be levied and COlleCt8d by
general laws and for public pur?oeea only. *
“It is well settled that maioipal corporations
cannot Inposes taxes for other then pub110 purposes.
*The ksendment to the charter of the oity of
Taylor set aside oertsin funds to be devoted to
*the growth, advertismaent, development, improve-
mnt and inomase of the taxable values of said
oity.’
*In disouasing rhet is a yubllo purpose, Xo-
~;uillIn on biunioipel Corporations ( 26 Ir;d.
) vol. 6,
p. 292, @ 2532, says: What is a gublio purpose
cannot bs answered by any precise definition fur-
ther than to state that if an object la beneficial
t0 the inhabitaate and dimctly COM6Ctea with the
looal governsent it will be considered a pub110
purpose. *
“The supmum Court of Illinois, in Taylor va.
Thompson, 42 Ill. 9, defines a *tar for corporate
purpoae8* 80 followrrc *iYe ney define this phrase
to mean a tax to be expended in a manner whioh ahall
promote the general prosperity and welfare of the
munloipality which levies it.*
“Iti would not be of value now to attalpt to
thoroughly define or diaouss what am pub110 pur-
poses. X0 exaot definition oan b6 raade, YUffiO9
it to say that, U&e88 a aourt oan say that th6
purposes for which publJo funds are expended are
alearly not publia purposee, it would not be jua-
tified in holding invalid a legislativa act or
provision in a oity oharter providing funda for
suoh purpose 8,
WCooley*a Constitutiohal Limitations (5th ad.)
p. 155, saya: ‘But what Is for the publio good,
and what am public purposea, and what does properly
oonatitute a public burden, are questions which the
lti~:lslature:nust dLcido u;on its own Judgmnt,
aild iii rrs;ect to ~l;loh it is vested with a large
di..cretisn iv.^,ichconnot be controlled by the oourts,
axcept, parhapa, :here its action is clearly eva-
sive, arid w>ere, uder pretenca of e lawful eu-
Lhority, it !ias aesuaed to exaroise one that la
lbGZl~:.f
ul. ;,here the :me.r which is exercised is
lrcisl>tlve in ita ctiaraotsr, the oourta can en-
force only those 1131tatiohs which the constitu-
tion i.qosas; not those inplied reatriotiona whioh,
restine in theory ooly, tha people have been satis-
fled to leave to the Judgmmt, patriotism, and sense
of Justice of their represantatives.’
"'Pii principal oontention in this suit is that
it is not a public ,purpose ana not a 3uniaipal pur-
pose for th6 city to 6pend its funds for advertir-
ing the advantages of the oity,
“It has generally bean held ~that appropriation6
for exhibitions of the reaouroea of a partiouler
locality at state or national expositions are not
subject to the objection that they are not aad6 for
e publia purpose. The Suprem Court of California,
in the aase of Deggett v. Colaan, 92 Cal. 53, 28 P.
51, 52, 14 Lans. Ch. 2. A. 474, 27 Am. St. aep. 95, held that
an appropriation for the purpose of *s.motiag: build-
isg and collecting end naintaining an exhibit of
the produota of the etate * et the ~~orla*8 Fair, coluin-
bian tixposition at Chloago in 1893, was not unoonsti-
tutionel on the ground that it was not for a pub110
use. The Kentuoky Court of Appealsi, in the case of
I:ormm v. Kentucky Board of Slanagera, 93 Kp. 537,
I- :i. 901, 18 Lans. Ch. 8. A. 556, held that an approprfa-
20 J.
tion to exhibit the resources of that stat6 at the
same Coltmbian i;xposition was fpr a public or govarn-
manta1 purpose. The Supreme Court of Tehn6ssee, in
the case of Shelby County v. Tennessee Centennial
,xpositlon Coapary, 96 TIM. 653, 36 s. iv. 694, 33
L. .3. A. 717, held that an exhibition of the resouroea
of a county at a state centennial exposition la a
comity purpose within the seaning of a conetitutional
provision suthorizing taxation for county purposes.
In this last ease there was an exprese grant of power by
the General Assembly to levy nuah e tax. 3s can see
ho ~+.aterlal differenoe in the ultimte purpose of an
exhibit of t&e resourcas of a partioular looality at
en exposition end the zor6 modern method of present-
ing the advanta&ea and opportunities of a oity, oounty,
Lonoroble Ob81 i. LcXlistur, pnge 7
or state, thrOu& neuspapor or ;?a&aZihe 8dVortiS-
'ing, ond similer ch8nn8ls.
"In the recent cese of Sacramnto Cha,nbnberof Con-
30fCB V. Stephens, 212 Cal. 607, 299 r. 728, the
Cuprel;la Gourt of California upheld a contract of the
dtg 02 SnUrRn8ntO -which provided for the ge118ra1 nd-
V8XtitdIlg of the Cttr. The Ch8ft8I' of the city Or
Saol'a;nehtO spt9OifiG8lly provided 40r the appropria-
tion 0r the funds or the oity for such purposes. In
the course or the opinion, Chier Justice i,aste USUP
the rollowing,languag8:
**In answer to tha contention theit the contraot
between the city and the Chainbar of Cosmroe does not
relate to a public purpose, little need be said. In
oonsidering a soaewhat sis?ilar puastlon whioh arose
out of a danand on the state oontroller to pay a olaix
oontraated and audited by the Calirornia %orld*r pair
C0~UUisSi0n in COMsOtiOh with the cOUCitrUetiOn Of build-
ings and the naintenanod of an exhibit of the products
or the state or calirornla at the :$orld's Pair colim-
bian axpOsitiOn held in the city of Chicago, St&s or
IllinOi8, in 1893, this OO& Said, in DO@$itt v.
glgn, 92 Cal. 53, 57, 28 P.51, 52, I.4 L.' a. A. 474,
. St. Sep. 95, "that what ia iOr the publio good
and what are public purposes 'm-8 questiona which the
lagislatuw mat dsoide upon ita own judgmnt, in ree-
peat to whioh it is V8stCid with a large discretion
which cannot b8 oontrolled by the oourte, exoeptt *
perhaps, Wh8r6 ita aotion is clearly avesivo.
Wham the power which is exercised is legislative in its
oharacter, the courts can enforce only. those lixitationa
whioh the oohstitution iaposae; not those implied re-
SttiOtiOllS, whloh, resting in thdOr$’ Only, the people
hare been ratisfiad to leave to the fudgmnt, patriot-
ism, sha sense or just1064 of their representatives.*
Cooley'a,Conet. Lila. p. 154."
*'ifurther:aors , HB are or the view that, bj oomo~
oonsent, it is now @merally held to be vi811 within
a public purpose ror any given locality to expend
publio funds, within due linitatione, for advertising
and otherwise oslline sttantion to ita natural advan-
tagas, its resouroesi, its enterprises, and ita adapt-
ability for industrial aitsc), with the obdeot of in-
cresalng lta trade and oommroe and of enaouraglug
people to settle in that pertiouler oomauhity.g saora-
.?lantO Chamber Of Comeror v. Stephens, 212 Cal. 607,
299 P. 728, 730.
” .~:c,~uillin,id :,is I.532 :3Um&itiV6 ;Ul;;le,?ElKlt
to his rorh on 2:unicipal Cor;orstiors, at pa&es
062, 663 says: ';llthough recent decisions doolare
advartis i ng is 6 yublic yurpose for '#hioh the tax-
ing >ower isay be exercised, to authoriza tka levy
of any tax for this purpose or ap;Topriate public
moneys therefor, 8x;jreas grant Just axist, CitLier
statutory or in hoillerule oharters.'
*';lehaV8 been unable to find any 08% in ti:S
reports in whioh there was an cixpress Grant Of power
I‘or the purpose of edvartiaing, that the court has
not upheld the power of the oity to appropriate. the
~loney therefor and ;hevy a tax to dzfray t&v ex?ensa.
*In this case express authority in the hom8 rule
charter does 8rist, ard its excrolse ia not a vlola-
tion or any provision of the Constitution or the
.seneral laws of th8 state, and can reasonably be in-
cluded in th6 general po%ers and purposes Of the
municlpel government."
In the case of Ziller et al VS. ill F8SO County, 150 S. ,i.
(26) 1000, the Supreme Court held krtiole 2253b, Vernon*8 Annota-
ted civil Statutes unconstitutional on the ground that said
statute contravenes provisions or LX3otion 50, Article III or the
state Constitution. This statute authorized all counties in this
titate heving a population of not less than l4.5,OOO inhabitants
a:&d not more than 175,000 inhabit8nt8, and containing a oity
having a population of not less than 90,000 inhabitants, as
s3.o~ by the last preceding Federal Census, to levy a tax of
not over rive (5) oents on the valuation or ~..100.00 or ouoh
county, for the purpose of advertising and promoting the
i;rowth and development of said county and its county seat;
:;rovidad that before the Comtaiasioner'e Court of such counties
oould lavy any tax for suoh purpose, the qualified tax paying
voters of the oounty rvould have to authorize the Jo&nissioner*s
Sourt to levy such tax by a majority vote.
It ;ias said la the case of :;iller et al vs. ~1 ~aso ;;ounty,
supra:
“GUI holdkit; th8t the AlIt iS void On tke :;rour;ds
above stated, renders it 'unrooessary for us to pass
on tne otner assignments raised in the briefs.' In
this connaotioh, Lowever, iye deem it proper to call
attention to the faot that the case of Uavis v. city
of Tsylor, 123 Tex. 39, 67 3. ii. (2d) 1033, relied
755
Sonorable tibel L. KoAlieter, pzlge 9
on by defendant6 in error as authorizing the
ix;eIidiIj.~of 3ubli.c fU~3.6 for advertising _DUr-
;;oses, dealt ;riitha ho:ae-rule city and not a
00ufity, end that a oity kiay ereroise proprietary
fuActions, while a oounty, as a acre subdlvieion
of the 3tat.6, can exeroise only ;jovermental
Puxc tiOrl&.*'
In vier of the Soregoing atatament~q rr;c Suprerae Court,
it is doubtful that the expenditure of oolrnty funds for the .pur-
pose OS ail~vcrt1flI.y tr,e county i6 a ~:over~~~ntol fuuation, and
that o co~:y TOIL.LCbe authorized to ake such cxpecdituree.
:;a also direct your attention to the case of Anderson
et al v6. City of s6A Antonio, 67 S. a. (24) 1036, Wherein the
upreine Court held that neither the oharter ,110~janera law6
&powered cte city of San Antonio to levy a tax to 6dV6rtiEe
the city nrd that an ordicanos authorixirg aiioh a tax ldvie:b
for such purpose wae Invalid.
In view of the foregoing authcrltfes and ae heretofore
steted, we are unable to oategorically aua:yer the question un-
der consideration. ;le hove called your attantioc to airtain
portions of the bill which ai'e p~estio~sbl8 ir.sofar sa the
oonstltutionality of the Act is ooficsrtied.