General Thomas S. Bishop Opinion No. C-700
Adjutant General
Adjutant General's Dept. Re: Constitutionality of Section
Austin, Texas 5 of Article 5766 as amended
by House Bill 410, Acts of
the 59th Legislature; Regular
Session, Chapter 690, page
Dear General Bishop: 1601, at page 1604.
You have requested ouropinion on the validity of
SeCtiOn 5 of Article 5766, Vernon's Civil Statutes, as amended,
which reads as follows:
"Section 5. (a) Any member of the State Military
Forces going to and returning from any parade, encamp-
ment, drill or other meeting which he may be required
by law to attend, shall, together with his conveyance
and military property, be allowed to pass through all
toll roads, bridges and ferries, free of charge, if he
is in uniform and if he presents an order for duty or
such identification as the Adjutant General shall pre-
scribe.
Any member of the State Military Forces who
“(b)
claims the privilege conferred in Subsection (a) when
he is not in truth and in fact in the status therein
mentioned shall upon conviction thereof be guilty of a
misdemeanor punishable by a fine of not less than Fifty
Dollars ($50) nor more than Two Hundred Dollars ($200)."
The question raised in your request 1s whether the
above-quoted provisions impair the obligation of the contract
entered into by the Texas Turnpike Authority pursuant to the
provisions of Article 6674v, dated April 1, 1965, the same
being a trust agreement pursuant to Section 11 of Article 667b,
Vernon's Civil Statutes. Section 502 of the trust agreement
reads as follows:
"Section 502. The Authority covenants that tolls
will be classified in a reasonable way to cover all
traffic, so that the tolls may be uniform in application
to all traffic falling within any reasonable class regard-
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Gen. Thomas S. Bishop, page 2 (c-700)
less of the status or character of any person, firm or
corporation participating in the traffic; that no reduced
rate of toll will be allowed within any such class ex-
cept through the use of commutation or other tickets
or privileges based upon frequency or volume and that
no free vehicular passage will be permitted over the
(Tollway) (Turnpike) other than its approaches and
service roads, except to members, officers, employees,
agents and representatives of the Authority and the
State Highway Department, police officers of the United
States, of the State of Texas and of its political sub-
divisions, but only when any of them is acting in the
discharge of their official duties."
Section 16 of Article I of the Constitution of Texas
prohibits the enactment of any law im airing the obligation of
contracts. Section 11 of Article 667iv authorizes the Texas
Turnpike Authority to enter into trust agreements providing
for the issuance of bonds and making provisions protecting and
enforcing the rights and remedies of the,bond holders. Section
12 of Article 6674~ provides that the tolls shall not be subject
to supervision or regulation by any other commission, board,.
or bureau of the State.
The Supreme Court of Texas in Texas Turnpike Authority
v. She erd, 279 S.W.2d 302 (1955), in passing~upon the validity
Artic e 6674v, recognized that this article granted to the
-FT-%--
Texas Turnpike Authority the power to create contractual obliga-
tions which cannot be impaired in view of the provisions of
Section 16 of Article I of the Constitution of Texas; therefore,
the question before us is whether Section 502 of the trust agree-
ment created an obligation which is impaired by the provisions of
Section 5 of Article 5766 as amended by the 59th Legislature.
In the case of Travelers' Ins. Co. v. Marshall, 76 S.W.2d
1007 (Tex. Sup., 1934), it was held that the existence of the in-
dustrial depression of the 1930's did not authorize the Legislature
under the police power to enact even emergency legislation of a
limited duration which impaired the obligation of contracts and
therefore held invalid the Emergency Moratorium Law enacted in
1934. Likewise, Lanuever v. Miller, 76 S.W.2d 1025 (Tex.Sup:,
19x&), held invalid for the same reason an act to cancel deficiency
judgments during the same period. In Langever v. Miller, supra,
it is stated:
"We are not much concerned w-iththe superfine distinc-
tion sometimes drawn in discussing the impairment of the
obligation of contracts, between the 'obligation' and the
'remedies' for their enforcement. We agree with what the
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Gen. Thomas S. Bishop, page 3 (c-700)
Supreme Court of Alabama said in the case of Sanders v.
Cabaniss, 43 Ala. 173, 188, when discussing legislative
encroachments on the judiciary: 'It is a very clear
proposition, that what cannot lawfully be done directly,
cannot be done indirectly--no device, though it be so
cunningly contrived as to make wrong appear to be right,
can justify it.' It seems to us that the act before us
does in fact operate upon and impair the 'obligation' of
the contract, in that it nullifies that portion of the
contract, read in the light of the then existing statute,
which entitled the mortgagee to a deficiency judgment.
But, if the statute be regarded as one which merely
operates upon the remedy or remedies for the enforcement
of the contract, it is obvious that it abridges the rights
of the mortgagee resulting from the stipulations in the
agreement in such manner as to make the contract less
valuable, and denies him lawful remedies which existed
when the instrument was executed without substituting
therefor others equally valuable and equally effective.
11
. . .
""'One of the tests that a contract has been impaired
is, that its value has by legislation been diminished. It
is not by the Constitution to be impaired at all. This is
not a question of degree or manner or cause, but of encroach-
ing in any respect on its obligation, dispensing with any
part of its force."' Planters' Bank v. Sharp et al., b How.
301/12 L.Ed. 441/.
11
. . .
"'Any impairment of the oblFgation of a contract, is
within the prohibition of the Constitution; the degree of
im airment being immaterial. Walker v. Whitehead, 16 Wall.
31x, 21 L.Ed. 357.
"'By the obligation of a contract is meant the means,
which at the time of its creation the law afforded for its
enforcement. Louisiana v. St. Martin's Parish, 111 U.S.
716, 4 s.ct.-648, 28 L.Ed. 574; Van Hoffman v. Quincy, 4
Wall. 535, 18 L.Ed. 403.
""While it is undoubted," says Ruling Case Law (volume
6, 6 321), "that the legislature may make changes in the
remedy, it is necessary that the contract should be left
with the same force and effect, including the substantial
means of enforcement, which existed when it was made."
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Gen. Thomas S. Bishop, Page 4 (c-700)
"'By the same authority the doctrine is announced
that the most certain test of impairment is that the
value of the contract has been diminished. volume 6,
p. 329, 8 520.1" (Emphasis supplied by the Court)
In Travelers' Ins. Co. v. Marshall, supra, the Court
stated:
"We are asked, however, to hold that, under the
P.l&!&Ey> one of the powers of government (State v.
, 9 Conn. 190, 113 A. 385) vitalized by emergency
conditions, the Legislature had the authority to pass
the measure before us. We are asked to do this, although
the Bill of Rights, section 16, expressly prohibits the
enactment of laws impairing the obligation of contracts.
Can we do this? . . .
"Obviously all these questions must be answered in
the negative. This is so because the pronouncements of
the Constitution are 'imperious, supreme and paramount.'
As said by a leading authority:
"'Necessity that is higher than the Constitution
can safely have no place in American jurisprudence. That
principle is necessarily vicious in its tendency, and.
subversive of the Constitution. It should be, and is,
limited by the constitutional inhibitions. * * *The
Constitution, and a controlling necessity antagonistic
to its requirements, cannot exist.' , . .
"Since the impairment of the obligation of contracts
is prohibited by section 16, article 1, of the Bill of
Rights, without any specified exception in favor of legisla-
tive action to the contrary during industrial depressions
or emergency periods, we are without power to write such
an exception into the organic law. As said by one of the
Texas authorities previously cited: 'The enactment of laws
impairing the obligation of contracts is forbidden by
section 1.6of article 1 of the constitution of Texas. * * *
The limitation thus imposed is emphatic, unambiguous and-
without exception; it applies alike to all contracts and
protects all obligations of contracts from destruction or
impairment by subsequent legislation.' 9 Texas Jur. p. 541,
6 106.
"However, we will not rest our opinion here, but out
of deference to the importance of the legislation before us,
will enter upon an inquiry as to whether or not, in view of
the history of the contract clause and the decisions relative
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Gen. Thomas S. Bishop, page 5 (c-700)
to it, the police or general governmental power may be
so applied to it in times of emergency as to permit the
legislation here involved. The meaning which a constitu-
tional provision had when adopted, it has to-day; its
intent does not change with time nor with conditions;
while it operates upon new subjects and changed conditions,
it operates with the same meaning and intent which it had
when formulated and ado ted. 9 Texas Jur. p. 427, 6 18;
6 Ruling Case Law, p. E 6, E 39; Cooley's Constitutional
Limitations (8th ed.) vol. 1, p. 123. As Judge Cooley
says : 'A constitution is not be to made to mean one thing
at one time, and another at some subsequent time when the
circumstances may have so changed as perhaps to make a
different rule in the case seem desirable. * * * It is
with special reference to the varying moods-of public
opinion, and with a view to putting the fundamentals of
government bevond their control. that these instruments
are framed. *"* "The meaning of-the constitution is fixed
when it is adopted, and it is not different at any subse-
quent time when a court has occasion to pass upcn it.'
-Cooley'sConst. Lim. vol. 1, pp. 123, 124.'" (Emphasis
supplied by the Court).
Applying the above-quoted principles announced in the
foregoing authorities as well as the authorities cited in Travelers'
Ills. CO.~V. Marshall, supra, and Lanpever v. Miller, supra, we are
f th i . that Section 5 of A ti 1 !f(bb as amended by the
509th~e~%%~re is unconstitutionil io: the reason that itspro-
visions impair the obligations of the Texas Turnpike Authority
created by the trust agreement entered into pursuant to the pro-
visions of Section 11 of Article 6674~. The trust agreement
specifically obligates the Authority to prohibit free vehicular
traffic over the turnpike other than those excepted from its pro-
visions, while Section 5 enacted subsequent to the creation of
the obligation above noted specifically provides that certain
personnel not excepted in the trust agreement shall be allowed
free use of all toll roads.
This opinion is not to be construed as prohibiting
the State from making free use of the turnpike for its State
militia when the'state militia Is called out by the Governor to
aid in the enforcement of the laws in times of public danger. In
such event, the members of the State militia are held to exercise
the same authority as that which a peace officer may exercise. 57
Corpus Juris Secundum 1098~1099, Militia Section 21, and authorities
cited therein. Therefore, in such event, members of the State
militia would constitute personnel specifically excepted in the
Trust Agreement.
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-
.
Gen. Thomas S. Bishop, page 6 (C-700)
SUMMARY
Section 5 of Article 5766, Vernon's Civil Statutes,
as amended by House Bill 410, Acts of the 59th Legislature,
providing that certain personnel of the State military
forces under certain conditions shall be allowed free use
of toll roads in this State, violates Section 16 of Article
I of the Constitution of Texas for the reason that it impairs
the obligation of a contract entered into by the Texas
Turnpike Authorit pursuant to the provisions of Section
11 of Article 667 tv, Vernon's Civil Statutes.
Yours very truly,
WAGGONER CARR
Attorney General
By: . -8?$q $&&
.d ohn Reeves
<-'Assistant Attorney General
JR:sck
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Milton Richardson
James Strock
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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