Untitled Texas Attorney General Opinion

August 24, 1951 3309. Jaclt H. :Dr+e Opinion No. V-1253 Executive Sqcr6tary Texas Citiua Commisbiod Re: Constitutionality of Subdivi- Weglscb, Texar sion (15), Section 2 of Arti- . . cle 111, H.B. 426, Acts 52ad Lea. (1951) dealing with the . ,... . purchase and *ale of certain pasketlger carryin& motor vehicles. h ri hhve r e q q d d d i n opinion of &is officd on thc coh-. stitutionality of Wci provirion8 relatin$ to State-owned a'utomobilcis i n House.Bill426; the general'appropriation...bill for:..the. biennium : - ending '.Ani@f ,. 3.1, 1953, a s .follows: . . . . ~ 1. I s '&pr&iaio,* prohibiting.purchase of motor-. , prDpelled pdssengir-carrying vehicles with funds appro- priated by tl* 'bill constitutional? . '. . . 2 . I= the provision declaring such presently owned vehicles no longpr needed and requiring their sale and disposal constitutional? Hon. George W . C&, State Health Officer; Won. C. E. Belk, Administrator of t h e Teiths State Board of Plumbing Examin- e r s ; "Hob. H.A;'Blckwith, Chairman of thk 'Board of.Water Engi- neerb: 'IEoci.'.Robert S..Caiv&rt; Coinp*oller of Public Accounts; and an: 'Jesse James. State 'Treasurer, have pending in this office requests f o r . opinionswhicli relate t o ~ . n. or e. both of,the same ques- tions. . . . That part of House Bill 426 relevant to your inquiry is a rider i n the general appropriation bill contained i n .subdivision (15)' Section 2, Article 111, a s follows: "All State-owned motor-propelled passenger- carryingvehicles under the control of any department, commission, board, or other State agency a r e hereby declared to be no longer needed. Such motor-prppelled passenger-carrying vehicles shall be sold i n compli- ance with and a8 provided for in Article 666, Revised Civil Statutes of Texas, a s amended, or otherwise a s provided by law, not later than October 1. 1951. No 150 Hon. Jack H. Drake, Page 2 (V-1253) motor-propelled passenger-carrying vehicle may be purchased with any of the funds appropriated in this Article, provided, however, that these provisions of this Section in regard to the sale and purchase of motor-propelled passenger-carrying vehicles shall not apply to the Executive Department, State Highway I Department, Department of Public Safety, Game, F i s h l and Oyster Commission and the Railroad Commission. provided that the Railroad Commission shall only keep and have in its possession not to exceed twenty (20) motor-propelled passenger-carrying vehicles and the Texrs Prison System shall only keep and have in i t s possession those vehicles equipped with two-way radios. Notices shall be given in writing to persons now using said vehicles of the time and place they a r e going to be sold i n order that such persons may have an opportu- nity to bid on said motor-propelled passenger-carrying vehicles." The constitutional provision which controls the valid- ity of the rider i s Section 35 of Article 111 of the Texas Constitu- tion, which provides: "No bill, (except general appropriation bills, which may embrace the various subjectfi and accounts, f o r and on account of which moneys a r e appropriated), shall con- tain more than one subject, which shall be expressed in i t s title. But if any subject shall be embraced i n an act, which shall not be expressed in the title, such act shall be void only a s to s o much thereof, a s shall not be s o ex- pressed. " . . The Supreme Court, in Stone v. Brown, 54 Tex. 330. 342 (1881), asserted that the principal object of this provision " . . , i s to advise the legislature and the people of the nature of each particular bill, so a s to prevent the in- sertion of obnoxious clauses, which otherwise might be engrafted thereupon and become the law; and also to prevent combinations, whereby would be concentrated the votes of the friends of different measures, none of which could pass singly; thus causing each bill to stand on its own merits. *I . With specific reference to the reason for this type of constitutional limitation in the case of appropriation bills. the Su- preme Court of Oregon said: Hon. Jack H. Drake, Page 3 (V-1253) U The evident purpose of this provision was to prevent matters foreign to the general purpose of ap- propriation bills being attached to them a s riders. thereby taking advantage of the necessity of the state for money to defray its current expenses and to pay i t s officers to pass measures that perhaps would otherwise have been defeated." EV-anhofiv. State In- dustrial Accident Commission. . )5-1 In dealing with Section 35 of Article III a rule of lib- e r a l interpretation has always been applied. The tendency of the decisions $s to construe the constitutional provisions on this sub- ject literally rather than to embarrass legislation by a construc- tion whose strictness is unnecessary to the acc mplishment of the beneficial purpose for which i t was adopted? But a t the same time the Court has been careful to point out, a s was originally done by Chief Justice Hemphill in Cannon v. Hemphill. 7 Tex. 208 (1851). that this provision cannot be ignored arid thus nullified. .With reference to general appropriation bills, the Su- preme Court of Texas has held that "the appropriating of funds to be paid from the State Treasury is a 'subject' ~ i t h i n the meaning of Article 111, Section 35, of our Constitution." It is clear from the terms of the constitqtional provision that general appropria- tion bills may contain more than one subject of this same nature, i.e., appropriations for the various departments and accounts, The exception of general appropriation bills from the constitu- tional prohibition against bills containing more than one subject i s a limited and restricted exception. The exact wording is 4. ... except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys a r e to be appropriated ..." Aa long a s a general appropriation bill includes only subjects of appropriating money and limiting the use thereof in harmony with general legislation, i t may relate to any number of different "subjects and accounts." In such instances all of the subjects a r e under the one general object and purpose of appro- priating funds from the treasury. The obvious purpose of this limited exception was to make certain that appropriations to more than one department in the same bill would not be prohibited. In 1 Giddinks v. San Arltonio, 47 Tex. 548 (1877); Dellinger v. State, 28 S.W.Zd 537 e ex. Grim. App. 1930). 2 Moora v. Sheppard, 144 Tex. 537, 192 S.W.2d 559 (1946). 3x2 Hon. Jack H. Drake. Page 4 (V-1253) all other respects general appropriation bills a r e subject to the same prohibition a s all other bills against containing more than one subject. The result is that general legislation cannot be em- bodied within a general appropriation bill. Moore v. Sheppard. - supra. This does not mean that a general appropriation bill may not contain general provisions and details limiting and r e - stricting the use of the funds therein appropriated, if such pro- visions a r e necessarily connected with and incidental to the ap- propriation and use of the funds and if they do not conflict with br amount 10general legislation. Conley v. Daughters of the Republic. 106 Tex. 80, 156 S.W. 1 9 m 9 1 3 ) . I With special regard to what incidental provisions may t be included within a general appropriation bill, our Texas courts have not stated a general rule. However, from statements a s to what may not be included and from numerous opinions of the At- torney General, we believe the rule may be stated generally as follows: In addition to appropriating money and stipulating the amount, manner, and purpose of the various items of expenditure, a general appropriation bill may contain any provisions or riders which detail, limit, or r e s t r i c t the use of the f k d s o r otherwise insure that the money i s spent for the required activity for which it i s therein appropriated, if the provisions or riders a r e neces- sarily connected with and incidental to the appropriation and use of the funds, and provided they do not conflict with general legis- lation. See Linden v. Finley, 92 Tex, 451. 49 S.W. 578 (1899) and Conley v. Daughters of the Republic, supra. An extended discus- sion of this rule will be found in a n opinion of the Attorney General now being written to the Governor on the general subject of riders in a general appropriation bill. Applying the above rule to your first question, it i s obvious that that part of the rider which provides that "No motor- propelled passenger-carrying vehicle may be purchased with any of the funds appropriated in this article" is a mere limitation and restriction upon the use of the money appropriated by House Bill 426. I t is necessarily connected with and incidental to the appro- priation and is not a n additional subject of general legislation. We have found no general statute with which it conflicts. There- fore, i t is valid. Applying the same rule to your second question and that part of the rider which declares certain State-owned passen- ger vehicles to be no Longer needed and requires that they shall be sold, we find no basis for its validity in a general appropriation bill. It does not detail, limit or restrict the use of funds therein appropriated o r otherwise insure that appropriated money w i l l be Hon. Jack H. Drake, Page 5 (V-1253) spent for the purpose intended. It is not incidental to any appro- priation in the Act. Obviously, it deals with a subject other than money appropriations. It attempts to do more than appropriate money and i s therefore a subject of general legislation3 which cannot be constitutionally enacted in a general appropriation bill. Moore v. Sheppard, supra; Att'y Gen. Op. No. 0-445 (1939). If the Legislature can order the sate of State-owned automobiles in a general appropriation bill rider, i t can by the same means order the sale of State office buildings, public school lands, o r any other State-owned property. The very statement of the proposition demonstrates that sale of State property is a sub- ject of general legislation separate from and unrelated to the gen- e r a l appropriation of money to operate the State agencies. It i s a subject which should have the full consideration, opportunity for public notice and hearings, and opportunity for amendment o r re- jection afforded general legislation but usually denied to subjects incorporated a s r i d e r s in a general appropriation bill. The provision for the sale of the State-owned vehicles is also invalid because in violation of that portion of Section 35 of Article I11 of the Texas Constitution which states that the subject of a bill".. . shall be expressed in its title. But i f any subject shall be embraced in a n act, which shall not be expressed i n the title, such act shall be void only a s to s o much thereof, a s shall not be s o expressed." There is nothing whatever in the caption o r title of House Bill 426 which could be construed to cover the provision o r to put a legislator o r the public on notice that the bill contained a requirement that certain State-owned passenger c a r s were to be sold. The title is long, but we have searched it carefully. The on- iy mention of any subject contained i n subdivision (15) is the phrase 'providing certain limitations on the purchase of passenger motor vehicle^."^ This adequately covers and gives notice of the pro- hibition against urchasin new c a r s , but it cannot be said to do s o E---fB with reference to the s e e of presently owned passenger c a r s , The rule governing narrow title provisions is well stated in 50 American Jurisprudence 162, Statutes, Section 183, a s follows: 3 It i s significant in this connection that a separate bill (H.B. 271) with provisions similar to those of subdivision (15) was introduced and passed the House, but failed to pass in the Senate. 4 Emphasis added throughout. Hon. Jack H. Drake. Page 6 (V-1253) " ... Under these rules, if a title i s narrow and restricted, carving out for treatment only a part of a general subject, the legislation under i t must be confined within the same limits. even though the Leg- islature might, with propriety, have selected a more comprehensive title which would have embraced the entire subject of legislation.' The Supreme Court of Texas has uniformlv held that acts broad in scope, but with narrow and restricted tities. a r e in violation of Section 35 of Article 111. In Arnold v. Leonard. 114 Tex. 535, 273 S.W. 799 (1925), the Supreme Court said: 4, The caption i s not content to state a purpose to amend certain statutes, but proceeds to specify the nature of the proposed amendment. Thus the caption declares that the amendment consists of a provision authorizing the wife, on order of the district court, to convey her separate real estate, bonds, and stocks without joinder by her husband, when he is insane o r has permanently abandoned his wife. This language not only gives no notice of an intention to change the status of certain property from community property to the.wifels separate property. but completely dis- guises any such intention. A caption concealing the true purpose of a statute, and stating an altogether dis- tinct and foreign purpose. is necessarily deceptive, and cannot be sustained a s complying with section 35 of article 3 of the Constitution. Ward Cattle & Pasture Co. v. Carpenter. 109 Tex. 105, 200 S.W. 521." An earlier case striking down a portion of a statutebe- cause of a narrow caption was Adams v. San Angelo Waterworks Company. 86 Tcx. 485, 25 S.W. 605 (1894). Therein the Supreme Court said: a, . .. The first section of the act in question grants to any incorporated city o r town the power to condemn property 'for the construction of water mains o r supply reservoirs or standpipes for waterworks.' a s well a s for certain other purposes, and provides that 'any company or corporation chartered under the laws of this state for the purpose of constructing water- works, or furnishing water supply for any town or city, shall have the same right to condemn property neces- s a r y for the construction of supply reservoirs o r stand- pipes for waterworks when deemed necessary to pre- serve the public health, that is given towns and cities under this act.' The title of the act i s a s follows: 35:- Hon. Jack H. Drake, Page 7 (V-1253) 'An act to amend an act to regulate the condemnation of property in cities and towns, for the purpose of open- ing, widening or changing public streets o r avenues o r alleys, o r for water mains or sewers, approved March 28, 1883. .. .'' The caption being restricted to condemnation for water mains or sewers and other specified purposes, the portion of the body of the act allowing condemnation for reservoirs and standpipes was held to violate the caption requirements of Article 111, Section 35. The above cases, along with Gulf Insurance Go. v. James, 143 Tex. 424. 185 S.W.2d 966 (1945); Hoch v. Hoch, 140 -5, 168 S.W.2d 638 (1943); Ward Cattle and Pasture Com- pany v. Carpenter. 109 Tex. 103, duction Gompany v. Garrett. 119 : ~ ~ . S ~ ~ ' ~ ~ ' Gulf Pro- and Texas-Louisisna Power Co. v. City of FarmersviIle; 67 S.W. 2d 235 (Tex. Comm. App. 14331, all support the proposition that if the title is narrow, then the portions of the act broader than the title a r t invalid because the narrow title is deceptive and mislead- ing. Here we hsve a caption saying with reference to paa- senger automobiles only that the Act provides "certain limitations on the urchase of passenger motor vehicles," but the body of the %- bill actua y contains in addition to limitations on the purchase of c a r s the further provision that, with certain exceptions, a l l State- owned passenger vehicles shall., bethesold. A s stated in GuIf Insur- ance Go. v. Tames, su ra. -t$- ... title to the act, a s drawn, 1 is] capable of misleading ose interested in the bill." The title to the aiit being narrowed to regulations governing the purchase of motor vehicles, that portion of the body which attempts to provide - for the sale of certain State-owned motor vehicles is invalid. SUMMARY That portion of subd. (151, Sac. 2. Art. 111, H.B. 426, Acts 5Znd Leg. (1951), a rider in the general ap- propriation bill, requiring the sala of certain State- owned 'motor-propelled passenger-carrying" vehicles, i s invalid because it is a subject of general legislation and cannot be constitutionally enacted in a general ap- propriation bill. In this respect i t violates Sec. 35 of Art. I11 of the Texas Constitution. The rider is also invalid because it i s not covered by the caption or title of the Act, the title being restricted to "purchase" of new cars and making no mention of "sale" of presently owned automobiles. Hon. Jack H. Drake, Page 8 (V-1253) That portion of the general appropriation bill l r i d e r which prohibits the purchase of new automobiles l out of funds therein appropriated is a m e r e limitation and restriction upon the use of the money. Since i t is incidental to the appropriation and is not a n additional subject oi general legislation, this provision docs not violate Sec. 35, Art, 111 of the Texas Constitution and is therefore valid. Yours v e r y truly, 2~2l-J I Attorney General I