Untitled Texas Attorney General Opinion

. . OF ?rExAs Awwrnv 11. TExAe PRICE DANIEL ATTORNEY GENERA,. October 5, 1949 Hon. J. E. McDonald, Commissioner Department of Agriculture Austin, Texas Opinion No. V-922 Re: The constltut1onal1ty of that part of House Bill 29, Acts 51st Legislature, R.S.,1949, which empowers the Texas Citrus Commission to fix a tax levled on the processing and sale of clt- rus fruit. Dear Mr. McDonald: By letter dated July 28th you have requested the opinion of this office on the following matter: "The 51st Legislature of Texas created a governmental agency, to be known as the Texas Citrus Commission, under an act known as House Bill lo. 29. "Under Section 14, the bill levies a tax of 3&per l-3/5 bushel unit to be collected and used in part for advertlslng purposes. %ectlon 17 of said act makes It the duty of the Commissioner of Agriculture of the State of Texas to collect said tax and remit same to the Texas Citrus Commlsslon. I,. . . "In view of the nearness of the citrus harvesting season, I respectfully request your opinion as to the constltutionallty of that part of the act which Imposes a tax on clt:us fruit to be used for advertising purposes. The Texas Citrus Commission was created and its authority was defined by the 51st Legislature, R.S., 1949, ch. 93, p. 150. It has as Its motivating function the regu- lation of the Texas citrus fruit Industry. To finance the regulatory measure and to provide funds for the accomp- . . Hon. J. E. McDonald, page 2 (V-922) llslnaentof the authorized powers of the Commission, a tax was levied in the Act 'upon all citrus fruit grown In the State of Texas and packed or placed In containers and marketed, or processed and sold between September 1st of each year and August 31st of the following year." We set out the portions of the Act which pertain to the tax In question, as follows: "Sec. 9. The Texas Citrus Commission In addition to those elsewhere enumerated, shall have the following powers: "(1) To establish and maintain executive offices at such place within the citrus pro- ducing area of the State of Texas as It may from time to time select. The location of such executive offices may from time to time be changed by the Commission. "(2) To employ and at Its pleasure dls- charge experts, agents and such other employees, persons,flrms and corporations as It may deem necessary and to fix their respective duties and compensation. Provided however, that all compensation proposed to be expended under said paragraph (2) shall be first approved by the Legislative Audit Committee. altez(3) To adopt and from time to time to rescind, modify or amend all proper and necesiary bylaws, rules, regulations and orders for the exercise of Its powers and the perform- ance of Its duties under this Act, and to de- fine more precisely the terms and words used in this Act and the appllcablllty thereof to specl- flc facts and circumstances and to prevent by orders, rules and regulations the evasion of the taxes as well as the other acts, rules and regulations of the Commission, which such rules, regulations and orders as so adopted, resclnd- ed, modified or amended shall have the force and effect of law when not Inconsistent with existing laws. "(4) To act as the general supervisory authority over the administration and en- forcement of this Act and the provisions there- Hon. J. E. McDonald, page 3 (v-922) of and to exercise such other powers and to per- form such other duties as may be now or here- after Imposed upon it by law. “(5) To purchase all necessary office equlp- ment, furniture and supplies and to make such contracts and Incur such expenses as may be ne- cessary or desirable to properly carry out its duties. “(6) To conduct directly or through such lnstrumentalltles or agencies as It may select, publicity and advertising programs and sales campaigns designed to Increase the sale and consumption of Texas citrus fruit and by-pro- ducts In an amount not to exceed one-half of the revenue of the Commission In any one year; to carry on research either directly or through such lnstrumentalltles or agencies as it may se- lect, for the purposes of Increasing knowledge with respect to Texas citrus fruits and by-pro- ducts and protecting Texas citrus from pests and dleases and of finding new uses for Texas cit- rus fruit and by-products and of improving the quality and yield of such fruit and by-products. No advertising or sales promotion campaign shall be directed towards promotion of the brands or trade names belonging to any particular person, firm or corporation, except as hereinafter pro- vided. own ,~~;bTol~;~;;, change, modify, register and trade marks, trade names, and copyrlghts'for use'ln connection with Texas cit- rus fruits and by-products and to adopt, alter, amend, and rescind rules and regulations govern- ing the quality, kind and grade of products us- ing same and conditions of such use and to pro- hibit the use of such brands, labels, trade- marks, trade names and copyrights In connection with products which do not comply with such rules and regulations. All such brands, labels, trade- marks, trade names and copyrights shall be open to use by all producers of Texas citrus fruit and by-products who comply with the rules and regula- tions promulgated by the Commission with respect thereto. “(8) To borrow money for the purpose of car- rying on the functions for which the Commission Hon. J. E. McDonald, page 4 (V-922) was created, but no loan shall be for a great- er amount than the reasonably anticipated rev- enues of the Commission for the zurrent crop year In which such loan Is made. II. . . "Sec. 14. There Is hereby levied and as- sessed and there shall be collected, at the times and In mani,erand from the persons, firms, associations and corporations herein provided, a tax In such amount r?t to exceed Three Cents (3#) per standard packed box or bag of one and three-fifths (1 3/5) bushels or equivalent, as the Texas Citrus Commission may annually fix and certify to the Commissioner of Agriculture of the State of Texas on or prior to September 1st of each year. "With the exceptions herein provided, said tax at said rate Is hereby levied and assessed and shall be collected as herein provided, upon all citrus fruit grown in the State of Texas and packed or placed in containers and marketed, or processed and sold between September 1 of each year and August )lst of the following year. If any citrus fruit shall be placed In containers or packed or processed In the State of Texas be- tween September 1st of one year and August 3lst of the following year but not sold until after the next September lst, upon such sale it shall be taxed at the rate fixed by the Commission on or before the September 1st Immediately preced- ing such sale. "For the urpose of.computing such tax, twenty-four (2t ) units of No. 2 cans of process- ed citrus fruit shall be equivalent to a stand- ard packed box or bag of one and three-fifths (1 3/5) bushels of fresh fruit and shall be tax- ed In the same amount as such standard packed box; twelve (12) units of No. 3 cans of process- ed citrus fruit shall be taxed at a rate one and twenty-six one hundredths (1.26) times the amount of tax for a standard packed box: six (6) units of No. 10 cans of processed citrus l‘ruitshall be taxed in the amount one and thirty-three one hun- dredths (1.33) times the tax for a standard pack- ed box; seventy-two (72) units of SIX (6) ounce Hon. J. E. McDonald, page 5 (V-922) cans of processed citrus fruit shall be equlv- alent to a standard packed box of fresh fruit and shall be taxed In the same amount; each one and three-fifths (1 3/5) bushel Bruce or wire-bound type box of fresh fruit shall be equivalent to a standard packed box of fresh fruit and shall be taxed In the same amount; each box, basket or bag containing approxl- mately four-fifths (4/5) bushel of fresh fruit shall be taxed In an amount equal to one-half (l/2) the tax for a standard packed box; each box, basket or bag containing approximately two-fifths (2/5) bushel of fresh fruit shall be taxed in an amount equal to one-fourth (l/4) the tax for a standard packed box; each basket or bag containing approximately one (1) bushel of fresh fruit shall be taxed In an a- mount equal to sixty-two and one-half per cent (6293) of the tax on a standard packed box: each box, basket or bag containing one-half (*) bushel of fresh fruit shall be taxed in an amount equal to thirty-one and twenty-five one hundredths per cent (31.25%) of the tax on a standard packed box; eight (8) bags containing approximately one-fifth (l/5) bushel each of fresh fruit shall be equivalent to a standard packed box and shall be taxed in the same a- mount; ten (10) eight (8) pound bags of fresh fruit shall be equivalent to a standard packed box of fresh fruit and shall be taxed In the same amount; sixteen (16) five (5) pound bags of fresh fruit shall be equivalent to a stand- ard packed box and shall he taxed In the same amount; four and one-half (4$) gallons of single strength citrus fruit juice or other processed citrus fruit shall be equivalent to a standard packed box of fresh fruit and shall be taxed in the same amount;eighty (80) pounds of fresh fruit In bulk shall be the equivalent of a stand- ard packed box and shall be taxed In the same a- mount as such standard packed box. “For the purpose of computing such tax on other containers of fresh and processed Texas citrus fruit, and enforcing the collection of the taxes herein levied, the Texas Citrus Com- mission is authorized, empowered and directed to adopt rules and regulations to prevent Hon. J. E. McDonald, page 6 (‘J-922) evasion and ensure collection and defining what is the equivalent of a standard packed box of fresh fruit, and the proportion of the tax as levied per standard packed box which shall be paid on such other forms and containers of fresh and processed Texas citrus fruit. “It Is provided however that the tax levied from year to year pursuant to the terms and pro- visions hereof shall not be due and payable by any natural person as to Texas citrus fruit grown on land owned by such person and packed and sold by such person as fresh fruit or as to such fruit so grown on such land and processed and sold by such person. Each such natural person claiming an exemption under the provisions hereof, shall, before becoming entitled thereto, file an appllca- tlon for such exemption and receive an exemption certificate from Texas Citrus Commission at the time and In the manner hereinafter provided. “Sec. 15. The taxes authorized by the pre- cedln Section of this Act shall be due and pay- able 7with the exceptions therein set out) by the persons, firms or corporations packing or placing same in containers and marketing such fresh citrus fruit or processing and selling ‘~, such processed citrus fruit and citrus fruit by-, products, to the Texas Citrus Commission at Its executive offices, on the 15th day of the calendar month following the packing or placing In contaln- ers and marketing of the fresh citrus fruit Or the processing and sale of the proceased citrus fruit and by-products, to which such taxes are applicable. Same shall bear Inter&t at the rate of ten perzentum (10%) per annum from and after the due date thereof until paid, and ohs11 be per- sonal obligations and claims against each person; firm and corporation who packs or places In con- tainers and markets or processes and sells or PUP- chases all or any part of such fresh citrus fruit aftep It Is packed for market or such processed fruit and by-products after same are processed. Ali persons, firms and corporations who shall sell or purchase any fresh or processed Citrus fruit and by-products upon which such tax is or _~ may becane due, shall keep such records and ac- counts and make such periodic reports of dealings In fresh and processed citrus fruit and by-products Hon. J. E. McDonald, page 7 (V-922) as the Texas Citrus Commission may from time to time prescribe. 11 . . . 'Sec. l?- The Commissioner of Agriculture of the State of Texas, and his assistants, em- ployees and agents are hereby authorized, empow- ered and directed at the request of the Texas Citrus Commission and without additional compen- sation to collect the taxes Imposed by this Act and to remit same to said Commission as herein provided and to otherwise assist the Commission In the enforcement of this Act and rules and re- gulations promulgated hereunder. They shall make from time to time such reports of their collections and remittances and other activities in the en- forcement hereof as may be required by said Texas Citrus Commlsslon. Said Texas Citrus Commission may also employ additional agents and representa- tives for the collection of said taxes, and to assist In the enforcement hereof. "The Texas Citrus Commission may require any or all persons who handle money or are respon- sible for collecting the taxes herein levied to give bond for the faithful and honest performance of their duties In such form and amount as may be prescribed by the Commission and the premiums on such bonds may be paid by the person giving same or from funds of the Texas Citrus Commission, as It may prescribe. 'Sec. 18. There Is hereby created In the Treasury of the State of Texas three special fwds which shall be continuing funds, to be known as follows: " 1 . Texas Citrus Commission Fund. 2 . Agricultural and Mechanical College "[I of Texas-Weslaco Experiment Station No. 15 Clt- rus vd. exas College of Arts and Industries Cltrus(&d? "All moneys collected from the taxes levied from time to time pursuant to the provisions of this Act shall be turned over to the Texas CitPuS c Hon. J. E. McDonald, page 8, (V-922) Commission, Its officers and agents, and by said Commission forwarded to the Comptroller to be deposited by him with the State Treasurer of the State of Texas, three-fourths (3/h) thereof In said Texas Citrus Commission Fund, one-eighth (l/8) thereof In said Agricultural and Mechanl- cal College of Texas-Weslaco Experiment Station No. 15 Citrus Fund and one-eighth thereof In said Texas College of Arts and Industries Clt- rus Fund and the proceeds of such taxes In said funds shall be appropriated by the Legislature of the State of Texas for the purposes herein named and for no other purpose. "The entire amount of said Texas Citrus Com- mission Fund for the biennium ending August 31, 1951, Is hereby appropriated to said Texas Clt- rus Commission, to be used by It for the pur- poses specified In this Act Including the en- forcement of this Act and cost of collecting said taxes. The entire amount of said Agrlcul- tural and Mechanical College of Texas-Weslaco Experiment Station No. 15 Citrus Fund and of said Texas College of Arts and Industries Clt- rus Fund for the biennium ending August 31, 1951, are hereby appropriated to the Agricultural and Mechanical College of Texas, Texas Agricultural Experiment Station System-Weslaco Experiment Station No. 15 and Texas College of Arts and In- dustries, each respectively to be used by said respective institutions In education and research for the purpose of Increasing knowledge with re- spect to Texas citrus fruits and by-products, and protecting Texas citrus fruits from pests and diseases and of finding new uses for Texas citrus fruits and by-products and of improving the quality and yield of such fruit and by-pro- ducts. 'varrants shall be drawn by ,theComptroller of Public Accounts of the State of Texas, against said respective funds as provided-by law. 11. . . 'Sec. 20. This Act Is passed for the purpdse of preventing economic waste of food and loss of property and natural resources of this State and Hon. J. E. McDonald, page 9 (V-922) to encourage and foster the development of a major Industry, the Texas citrus Industry by fostering research as to new uses; by prevent- ing destruction thereof by pests and diseases and by lmprovlng the quality of and stlmulat- lng demand for, such Texas citrus fruit and by-products produced therefrom. Lack of such fostering care for such Industry has in the past and will In the future (unless prevented) result In unnecessary and avoidable waste of an important resource of this State. Such loss and waste will imperil the ability of producers of Texas citrus fruit to contribute In appro- priate amounts to the support of ordinary gov- ernmental and educational functions, and ln- crease the tax burdens of other citizens for the same purposes. Hence this Act Is passed to further the public welfare and general pros- perity of the State of Texas." We shall, In the course of this opinion, resolve the constitutionality of the tax Imposed by the Act with respect to whether the tax Is for a "public purpose' wlth- In the constitutional requirement of Article VIII, Section 3, of the Texas Constltutlon,and as to whether the delega- tion of authority to the Texas Citrus Commission In con- nection with determining the amount of the tax constitutes an unconstitutional delegatlon of legislative authority violative of Article II, Section I, and Article III, Sec- tion 48, of the Texas Constitution. (1) Is the tax for a "public purpose" within the constitutional requirement of Article VIII, 3ectlon 5 of the exas T It Is provided in Article VIII, Section 3 of the Texas Constitution that: 'Taxes shall be levied and COllQCtQd by general laws and for public purposes only." The functions of the Texas Citrus Commlsslon are enumerated in Section 9 of the Act, set out heretofore. In addition to the usual administrative functions of operating physical facilities and employing personnel as well as of furthering Its regulatory powers, the Commission has specl- flc authority to conduct advertising campaigns to foster and promote the citrus Industry. To this particular au- thority the following discussion will be principally devot- Hon. J. E. McDonald, page 10 (V-922) ed, as Its character as a public purpose Is the most con- troversial of the enumerated powers in so far as the tax revenue's expenditure thereon Is concerned. The requirement that taxation be for a "public purpose" Is fundamental to the jurisprudence of this coun- try, and Its necessity has been Incorporated In the constl- tutlons of most of the States of the union. It has, there- fore, occasioned much judicial lnterpretatl?n to determine what Is within the field of authorized taxation. The volume of judicial constructions of what constitutes a "public pur- pose* within the inhibitory provisions has proven enllght- enlng and we shall, through the course of this opinion, set out those expressions which we feel most nearly embody a recognizable rule. The determlnatlon of whether a given object of taxation Is for a *public purpose'tis governed, In the light of existing authorities, by custom and usage to a great extent. No precise holding in Texas has been founds holding that a tax on citrus fruit for the purposes en- umerated In the Act in question Is not for a public pur- pose. General tests, however, seem to be well estab- lished. It Is said in 1 Cooley on Constitutional Limlta- tions (8th ed.,1927) 264, that: "The Legislature is to make laws for the public good, and not for the benefit of lndlvl- duals. It has con\trolof the public moneys and should provide for disbursing them only for pub- lic purposes. Taxes should only be levied for those purposes which properly constitute a pub- lic burden. But what Is for the public good, and what are public purposes, and what does pro- perly cotistltutea public burden, are questions which the legislature must decide upon Its own judgment, and In respect to which It Is vested with a large discretion which cannot be controll- ed by the courts, except, perhaps, where Its ac- tion Is clearly evasive, and where, under pre- tense of a lawful authority, it has assumed to exercise one that is unlawful." The United States Supreme Court has spoken on the problem often and foPcefully. In Savings and &an Assocla- tlon v. Topeka, 22 U.S. 455, 20 Wall. 655, It was said: Hon. J. E. McDonald, page 11 (V-922) "To lay, with one hand, the power of the government on the property of the citizen, and with the other to bestow It upon favored ln- dlviduals to aid private enterprises and build up private fortunes, Is none the less a robbery because It Is done under the forms of law and Is called taxation. This Is not legislation. It is a decree under legislative forms. I,. . . "We have established, we think, beyond cavil, that there can be no lawful tax which Is not laid for a public purpose. It may not be easy to draw the line In all cases so as to decide what is a public purpose In this sense and what Is not. "It Is undoubtedly the duty of the Legis- lature which Imposes or authorizes munlclpall- ties to Impose a tax, to see that It Is not to be used for purposes of private Interest ln- stead of a public use, and the courts can only be justified In Interposing when a violation of this principle Is clear and the reason for ln- terference cogent. And in deciding whether, In the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed maln- ly by the course and usage of the government, the objects for which taxes have been custom- arily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether State or munlcl- pal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use, and proper for the maintenance of good government, though this may not,,bethe only criterion of rightful taxation. In Waples v. Marrast, 108 Tex. 5, 184 S.W.180 (1916), the question of whether the requirement of the ex- penditure of county funds for the holding of Darts DrimarY elections was for a"publlc purpose" was Involved. It was there said by Chief-Justice Phillips that: "Taxes are burdens imposed for the support of the government. They are laid as a means of Hon. J. E. McDonald, page 12 (V-922) providing public revenues for public purposes. The sovereign power of the State may be exer- cised In their levy and collection only upon the condition that they shall be devoted to such purposes; and no lawful tax can be laid for a different purpose. Whenever they are Im- posed for private purposes, as was said In Brodhead v. Milwaukee, 19 Wls. 670, 88 Am. Dec. 711, it ceases to be taxation and becomes plund- er. "It Is not easy to state In exact terms what is a 'public purpose' In the sense in which t&t term Is employed as a llmltatlon upon the State's power of taxation. The fram- ers of the Constitution were doubtless sensible of this difficulty, for they did not attempt to define It. Many objects may be public In the general sense that their attainment will con- fer a public benefit or promote the public con- venience, but not be public In the sense that the taxing power of the State may be used to ac- complish them. The powers of the State as a sovereignty exist only for government purposes. They may be freely exerted In the discharge of all the governmental functions of the State; but cannot be applied to uses, though public ln aim and result, which are not governmental In their nature. As the means provided for the support of the government in Its administrative duties and existing alone for that end, the taxing power may be employed for no purpose save that which In a true and just sense Is related to the per- formance by the State of Its governmental office. The appropriation of the public revenue is a legislative power, and the Legislature must ne- cessarily be allowed a large discretion In de- termining to what uses public moneys may be put. Subject to the constitutional llmltatlon that the public revenue shall be applied to only pub- lic purposes, to the prudent husbandry of the Legislature as well as Its provident foresight has been committed the public trust of making such use of It as will afford the economical ad- ministration of the government which both the spirit and the letter of the Constitution en- join. The term 'public purpose' as used In this relation Is not, therefore, to be construed nar- rowly, so as to deny authority to the Legislature Hon. J. E. McDonald, page 13 (v-922) to make such provision for the admlnlstratlon and support of the government In Its several branches and subdivisions as will faithfully subserve the present and future Interests of the people. The llmltatlon imposed by the Constitution upon the power Is, however, lmpera- tlve. And It Is essentially true that It does not permit taxation for all purposes which In a broad and general sense may be regarded as pub- lic, but expressly confines Its exercises to on- ly those public purposes with which the State, as a government, Invested with high and sover- eign powers, but only as a grant from the people and therefore to be solely used for the common benefit of all of them, and not as a paternal institution, may justly concern Itself, and to which, for that reason, the public revenues may be rightfully devoted. "As to what Is a public purpose within the meaning of Section 3, Article 8 of the Constltu- tlon, no better test can be presented than the Inquiry: Is the thing to be furthered by the appropriation of the public revenue somethlnq which it Is the duty of the State, as a govern- ment to provide? Loan Association v. Topeka, ??O 16 L.Ed. 455. People v.Town of Salem, 2801M;ch?545~~4‘Am. Rep: 400. Those things which It Is the duty of the State to provide for the people, it Is equally the right of the State, by means of the public revenue, to maintain. Wlth- in this category fall the general lnstrumental- ltles of the government, the public schools, and other Institutions of like nature. But the State is wholly without any power to levy and appropriate taxes for the support of those things which, either by common usage or because they are In no proper sense the Instruments of government, it is the duty of the people to pro- vide for themselves. It Is not all things which answer a public need or fill a public want that it Is within the authority of the State to fur- nish for the people's use or support at the pub- lic expense. Manufacturing industries, railroads, public enterprises of many kinds, private schools and private charitable Institutions all afford a service to the public, but the State Is without any power to maintain them. Religon Is generally Hon. J. E. McDonald, page 14 (V-922) esteemed a helpful influence for public moral- ity. But the Constitution expressly declares that no public money shall be sranted In aid of any religious organization. (Emphasis supplied throughout this opinion) In Neal v. Boou-Scott, 247 S.W. 689 (Tex.Clv.App. 1923), the court was passing on a tick eradication law as being in contravention of the “public purpose” requirement of Article VIII, Section 3, wherein the exuense of enforce- ment was required by the law to be paid out of county funds. The Court held: “The question as to whether an act of the Legislature of this state will serve a public use or purpose is, in the first instance, a question for the determination of the Leglsla- ture, and that determination or decision can- not be reviewed and the contrary determined by the judiciary except In instances where the legislative determination of the question Is palpably and manifestly arbitrary and lncor- rect.” The Texas courts have held that the following functions were within the “public purpose” requirement: the levy of taxes by a municipality for a Board of City Develooment authorized to soend Its funds to advertise the advantages of the city,- Ilavisv. City of Taylor, 123 Tex. 39, 67 S.W. 2d 1033:(1934);the levy of taxes for the construction of highways, Tom Green County v. Moody, 116 Tex. 299, 289 S.W. 381 11926);the levy of taxes to establish and maintain a munlciual band. Gr 118 Text 207 lj S.W. % 353 (19:6); the levy of taxes for the pay&t of bounties for the destruction of wolves, Weaver v. Scurry County 28 S.W. 836 (Tex. Clv. App. 1894) An annotation of’value Is to be found In 112 A.L.R.‘571. We attach weiaht to the lucid exoression of the considerations i&lved in determining what Is a “public purpose” as found in City of Glendale v. White, 67 Ariz. 231, 194 P. 26 435 (194t)),as follows: "'What Is, and what is not, a public purpose? It Is fundamental that taxes may not be levied for private purposes. * * l Hon. J. E. McDonald, page 15 (v-922) "'"Public purpose" Is a phrase perhaps incapable of definition, and better eluci- dated by examples. ***** "'In considering what Is properly a pub- lic purpose, we should not be controlled to too great an extent by decisions of courts in climates far distant from ours. Further, we should not be to too great an extent con- trolled by decisions which come from a remote time, and therefore may be out of tune with modern conditions. The question of what is a public purpose Is a changing question, chang- ing to suit Industrial Inventions and devel- opments and to meet new social conditions. law is not a fixed and rigid system, but de- velops, a living thing, as the Industrial and social elements which form it make their im- pelling growth.'" There being no Texas authority precisely in point, we deem it necessary to examine authorities in those jurisdictions which have been oonfronted with the levy of a tax for a purpose similar to that for the Texas citrus Industry here Involved. Numerous other States having various differing agricultural pursuits for substantial parts of their economies have enacted legislation regulating and fostering a particular agri- cultural pursuit similar to the Texas Act we are here considering Involving our citrus Industry. In Floyd Fruit Company v. Florida Citrus Com- y;;;;';~,128 Fla. 565, 175 So. 248, 112 A.L.R. 562 the Supreme Court of Florida sustained an act of the legislature of that state levying a tax on each standard-packed box of oranges, grapefruit or tangerines grown in the state to be collected and used in advertls- ing those fruits. The court held that such a tax is an "excise tax" and not a property tax and did not violate constitutional rules of equality, uniformity or due pro- cess, as provided In the Constitutions of Florida or of the United States; that such an excise tax was not un- reasonable, unjustly discriminatory, or arbitrary: that the tax was levied on the privilege of turning said fruits Into the channels of trade, and was a valid tax Hon. J. E. McDonald, page 16 (V-922) regardlesa of whether they were later to be shipped in interstate or foreign commerce; and that the tax so lm- posed vas for the purpose of advertising such citrus fruits and vas for a public purpose and valid because the promotion of the citrus Industry Ln Florida was a matter of public concern. In Sllgh v. Kirkwood, 237 U.S. 52 (1915), the Suoreme Court of th6 United States took judicial notice of-the fact that the raising of citrus f&Its Is one of the greatest industries of the State of Florida, and held that “It was competent for the legislature to find that it was essential for the success of that industry that its reputation be preserved In other states wherein such fruits find their most extensive market.” In Maxcg, Inc. v. Mayo, 103 Fla. 552, $5~5~0. 121 (1931), the Supreme Court of Florida said: court takes judicial notice of the fact that the citrus Industry of Florida Is one of its greatest assets. Its promotion and protection is of the greatest value to the state, and Its advancement redtunds greatly to the general value of the commonwealth. In State ex rel. Graham v. Enklnq, 59 Idaho 321. 82 P. 26 649 [X938), the Supreme Court of Idaho had-under consideratlonVa statute of that state levy- ing a tax of one cent on each loo-pound unit of apples, prunes, potatoes and onions shipped within the state, for the purpose of providing a fund for advertising such fruits and vegetables. It was there held against the several contentions of InvalIdIty that It vas a tax on the privilege of turning such fruits and vegetables Into the primary channels of trade and vas not a prop- erty tax, and did not, therefore, violate constitution- al rules of equality, uniformity or due process; that the tax was not a burden on interstate commerce; that the tax having been levied for the purpose of provld- lng a fund for advertising such fruits and vegetables was valid and for a public purpose In that the protec- tion and promotion of the apple, prune, potato, and onion Industries was as much a matter of public con- cern to Idaho as the citrus industry was to Florida, citing Floyd Fruit Company v. Florida Citrus Commls- *, supra . In Miller v. Michigan State Apple Commission, 296 Mich. 248, 296 N.W. 245 (1941), the Supreme Court Hon. J. E. McDonald, page 17 (V-922) of Michigan had before it a statute of that state known as the "Baldwin Apple Act," which levied 'an assessment of 1 cent per bushel, or 2 cents per 100 pounds of all apples grown and produced in Michigan, payable by the grower or grower's agent when shipped," and providing that "all moneys levied and collected under this Act shall be expended exclusively to advertise apples." The Act was sustained as a valid and constitutional ex- ercise of the legislative power, as not being discriml- natory, not a tax on property but on the privilege of putting apples In the marts of trade, and as being a tax for a public purpose. In Louisiana State Deoartment of Agriculture v. Sibllle, 207 La. 877, 22 So. 2d 202 (1945) the Supreme Court of Louisiana was concerned with an act hf the lea- lslature of that state creating the Louisiana Sweet PO- tato Advertising Agency, imposing a tax to be collected by the Louisiana State Department of Agriculture and Immigration, on all sweet potatoes shipped in Louisiana. The Agency was charged with the duty of planning and conducting an advertising campaign for sweet potatoes out of the funds realized from such tax. The act was attacked under the Louisiana Constitution as not being levied for a public purpose. It was there held that the tax was 'for a 'public purpose' since it redounds to the public welfare by Rromoting growth of an important agrl- cultural Industry. Because of the slmilarlty of the regulations and of the constitutional consideration, we feel con- strained to set out an extensive portion of the language used ln the case, as follows: "According to the evidence In the record, sweet potatoes, from the standpoint of acreage and value of production, constitutes the fourth largest, and one of the major, commer- cial crops of Louisiana, ranking only after sugar cane, rice and cotton. Corn Is except- ed from that classification since most of It is used on the farms where produced In feeding hogs. cattle and other animals. It Is true that on the basis of percentage of acreage planted the sweet potato crop falls consldera- bly behind the other three major commercial crops; nevertheless it is of great Importance in the agricultural economy of this state as Hon. J. E. McDonald, page 18 (V-922) is attested by the fact that during a ten-year period It had an average annual planting of 104,000 acres with an average annual yield of 7,185,000 bushels. Furthermore, in this con- nection, consideration is to be given to the agricultural trend in the southern section of our nation which is to favor diversified farm- ing, thereby avoiding a concentration on one crop and preventing serious loss to the farmer In particular and the entire tltlzenry gener- ally when the one crop falls. With particular respect to the purpose of the act devoted to advertising sweet potatoes, the court noted: “The proceeds of the sweet potato tax are not to be paid to the growers of that com- modity or to any other Individuals or groups that deal with it commercially; they are de- voted exclusively to advertising the sweet pota- toes, thus promoting the growth of an Important and major Industry. By that advertising, es- pecially in states where very little is known of the value and usefulness of the sweet potato, there will result an increased consumption. This, In turn, will compel larger production and more sales throughout this state, as a consequence of which a greater prosperity will be realized not only by those directly Interested but also by our entire citizenry. Therefore, since It re- dounds to the ptbllc welfare, the tax Is for a public purpose. The foregoing cited cases are indicative of the present judicial trend to uphold the type of tax imposed by the Texas Act In question as against constitutional objectlogs, particularly as to Its being for a “public purpose. The authorities are not without conflict, and we set out hereafter two comparatively recent cases to the contrary. In Stuttgart Rice Mill v. Crandall, 203 Ark. 281, 157 S.W.2d 205 (1941), the Supreme Court of Ar- kansas considered an act passed in that State called the “Rice .DevelopmentCommission Law,” which levied a tax on rice milled within the state for the purpose of financing an advertising campaign to promote rice con- sumptlon. That act was passed contingent upon the . . Hon. J. E. McDonaid, page 19 (V-922) adoption of similar acts In Texas and Louisiana, which were in fact adopted in those states, the Texas Act be- ing Acts 47th Leg., 1941, ch. 434, p. 695. It was held In the Instant case that the Arkansas "Rice Development commlsslon Law" was unconstitutional under the Arkan- sas Constitution as not being for a public purpose. The basis of that holding is found In the following language: "Broad use may be made of the state's police power; and If the treatment of rice by grower, miller, seller, or others dealing with it creates a hazard against which there should be protection, then,admlttedly, any agency through which It passes may be subject- ed to regulation and a tax laid for the reason- able cost. But like corn, wheat, and all ag- ricultural commodities of common use, rice Is extremely wholesome. It contains no quality or element requiring that strict supervision which must be applied to products inherently harmful. "The latest federal census of agriculture for Arkansas lists 1,428 rice farms, embracing 153,095 acres. The total of all farms in the state Is 216,671, the acreage being 6,609,833. In point of numbers, rice farms account for .0066$ of the total, and in acreage .O23$. "Can it be said that the Interests of so small a group (although such farmers are among the more aggressive, progesslve, and substan- tial of the state) are such as to call for protective Intervention by the state's taxing powers on the theory that the common welfare is Involved? That which is termed the logic of this contention Is shredded by the facts." In Llnaamfelter v. Brown, W. Va. 52 S.E.2d 687 (1949), the Supreme Court of West Virginia held unconstitutional an act of the legislature of that state creating the West Virginia State Apple Commission and levying a tax on commercial apples grown In West Virginia and "moved into the channels of commerce' to conduct advertising campaigns to foster the apple lndus- try, such tax being held not to be for a public purpose. That court cited the Florida Citrus Commission Case, the Michigan Apple Commission Case, the Idaho fruit and veg- etable case, and the Louisiana Sweet Potato Commission . . Hon. J. E. McDonald, page 20 (V-922) Case, but distinguished the West Virginia situation from those cases, as follows: “We are not persuaded that the reasoning of the cases of C. V. Floyd Fruit Co. v. Florida Citrus Commission,.supra; Michigan Sugar Co. v. Dlx. supra; State v. Enklng, su- pra, and Louisiana State D&partment of Agrl- culture v. Slbille, supra should be applied in this case. The principal reason for this con- clusion Is that the growing and moving of com- mercial apples in the State of West Virginia Is not an enterprise or undertaking of such size as to Impress It with a public interest. True, the growing of apples and the shipping of them Into ‘channels of commerce’ Is an important undertaking to the persons engaged in that bus- iness. Furthermore, it may be said that the undertaking or enterprise Is Important to the parts of the State where a considerable por- tion of the land Is devoted to the growing of apples. But when appraised from the stand- point of the entire State the monetary returns from such business are, more or less, insigni- ficant and are not sufficient to characterize that business as one of the principal commer- cial or agricultural enterprises of the State of West Virginia.” The obvious conclusion is that the determining factor in the case of an agricultural Industry Is the relative contribution to the agricultural economy of the taxing state made by the taxed agricultural industry. The latest Texas Almanac, being that for the years 1947-1948, reveals pertinent facts concerning the Texas citrus lndustry. Texas grapefruit production of 24,000,OOO boxes In 1945 placed It second only to Flori- da In such production. Average annual production from 1934 to 1943 has been over 12 000,000 boxes. Value of the 1946 grapefruit crop was 821,675,000, nearly half of all fruit and nut crops In the State. Texas ranked seventh In 1946 among the thirteen orange-producing states, the crop of that pear being 5,500,OOO boxes val- ued at $9,625,000. Through June, 1946, 36,513 carlots of citrus moved out of the Lower Rio Grande Valle Texas Extension Service estimated that late In 19r6 there The vere 10,000,000 citrus trees in the Lower Rio Grand8 Valley. In the last ten years, utilization of citrus fruit has Increased 350 per cent due primarily to process- ing of citrus. Boxes of graperrult processed for juice Increased from 20,000 In 1929 to 10,559,OOO In 1945. Ac- cording to Information released by the United States De- partment of Agriculture, the value of citrus production in Texas in 1945 was $41.664.OOO. while the total value Hon. J. E. McDonald, page 21 (V-922) of all field crops, fruits, nuts and truck crops produc- ed In the State that year amounted to $745,290,000, which would make the citrus production 5.59$ of the total crop production indicated. In 1947, the latest year for which conclusive figures as to production are available, clt- rus production totalled $18,041,000 as compared with the total value of all field crops, fruits, nuts, and truck crops amounting to $1,452,300,000, Indicating a percentage of 1.24% allocable to citrus production. It is pertinent also to recall the davastatlng winter freeze In the early part of 1949 which ravaged the citrus trees so tragically, rendering the industry peculiarly In need of assistance to foster Its return to Its previously held position in the agricultural econ- omy of this State. A further consideration is found In the fact that the legislative purpose in enacting the Texas citrus Commission Act, the statute we have here In question, Is found In Section 20 of the Act, which reads: "Sec.20. This Act Is passed for the pur- pose of preventing economic waste of food and loss of property and natural resources of this State and to encourage and foster the develop- ment of a major Industry, the Texas citrus ln- dustry by fostering research as to new uses; by preventing destruction thereof by pests and diseases and by Improving the quality of and stimulating demand for, such Texas citrus fruit and by-products produced therefrom. Lack of such fostering care for such industry has in the past and will in the future (unless prevent- ed) result in unnecessary and avoidable waste of an Important resource of this State. Such loss and waste will Imperil the ability of pro- ducers of Texas citrus fruit to contribute in appropriate amounts to the support of ordinary governmental and educational functions, and in- crease the tax burdens of other citizens for the same purpose. Hence this Act Is passed to further the public welfare an9 general pros- perity of the State of Texas. Pert~inentto the effect to be given the state- ment of the legislative purpose expressed In the Act, with reference to whether the tax be for a public pur- ., . Hon. J. E. McDonald, page 22 (V-922) pose, we cite the following from Louisiana State Deuart- ment of Agriculture v. Slbille, supra: "In enacting the statute In question the Legislature, In Section 1 thereof, declared that 'the production of sweet potatoes Is one of the important agricultural industries of the State of Louisiana; that this act Is pass- ed to conserve and promote the prosperity and welfare of the State of Louisiana and of the sweet potato industry of the state and for fostering and promoting better methods of merchandising and advertising the sweet po- tatoes produced In this state. The purpose of this act Is to expand the market and in- crease consumption of sweet potatoes by ac- quainting the general public with the health giving qualities and the food value of the sweet potatoes grown In the State of Lo*lslana, thereby promoting the general welfare of our people." "The declaration that the act was passed to promote the prosperity and welfare of the State of Louisiana and of its people is an ex- pressed legislative recognition that the tax is Imposed for a public benefit. To be sure that recomltion is not conclusive: It could not make the tax one for public purpose if in fact It were folra private purpose. Since, however, the members of the Legislature are the direct representatives of all of the p ple of the State, their declaration cer- &ly furnishes the presumption that the pub- lic generally Is to be benefited by the leve." Upon a careful consideration of all of the author- ities and of the circumstances surrounding the citrus In- dustry In Texas, we are of the opinion that the collection of the tax Imposed for the purposes therein enumerated in Acts of 51st Legislature, 1949, ch.93,p.150, creating the Texas Citrus Colmnisslon,would not be violative of Article VIII, Section 3, of the Texas Constitution requiring that taxes be levied and collected for public purposes only. It is necessary to note In this connection that in a previous opinion No. O-3364, dated April 17, 1941 It,was held bx this office that a roposed "Citrus Ad- vertising Iav , Introduced In the t7th Legislature, was unconstitutional as not being for a public purpose wlth- Hon. J. E. McDonald, page 23 (V-922) In the requirement of the Texas Constitution, citing previous opinion No. 0-3106 which held a proposed Rice Development Commission Bill, of the same Legislature, to be unconstitutional for the same reason. The rice opinion, No. 0-3106, is distinguishable In that it was for another agricultural Industry and also In that Its legislative purpose was not stated in the bill as being for the general welfare of the people of the State. The Citrus Advertising Commission opinion, No. O-3364, is overruled In so far as the same conflicts with the holding of this opinion on the Issue of the tax being levied and collected for a public purpose. (2) Does the delegation of authority to the Texas Citrus Commission In connection with determining the amount of the tax constitute an unconstitutional de- legation of legislative authority violative of Article fl, Section 1, and Article=, Section 48, of the Tex- as Constitution? We set out the pertinent provisions of the Texas Constitution on this consideration, as follows: Article II, Section 1, provides: "The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of maglstry, to-wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except In the Instances herein expressly permitted." Article III, Section 48, provides: "The Legislature shall not have the right to levy taxes or impose burdens upon the people, except to raise revenue suffl- cient for the economical administration of the government. . . .' We do not think that the delegation to the Texas Citrus Commission of the pover to fix the tax In question in an amount "not to exceed three cents (3#) .I . Hon. J. E. McDonald, page 24 (V-922) per standard packed box or bag”, constitutes an uncon- stitutional delegation of the power to tax. The lev of the tax is made by the Legislature, not the comm --? s- sion, while the fixing of the amount - - not to exceed three cents - - Is a ministerial function properly delegable to an admlnistrktive agency. Thus It is said In 1 Cooley on Taxation (4th ed. 1924) 195: “After a tax Is once levied or lmpoaed, I.e., ordered to be laid, further proceedings, such as the extending, assessing and collect- ing the taxes, are administrative.” And in Stratton v. Commissioners Court of ~;;w;)n;yn;- “The general rule of constitutional law thata sovereign power conferred by the people upon one branch of the government cannot be delegated applies with peculiar force to the case of taxation. The taxing power is vested by the Constitution In the Legislature; end within that department of government lies the authority - to _.prescribe ._ the rules _.of _ taxation, ._ anb to regulate tae manner 1n wnicn mose rules shall be given effect. The Legislature must in every Instance presmibe the rules under which taxation may be laid. It must originate the authority under which, after due proceedlngs,‘the tax collector demands the contribution; but It need not prescribe all the details of action, nor even fix with precision the sum to be raised or all the particulars of Its expenditures.” To the same effect on another t e of tax, see Perry v. City of Rockdale, 62 Tex. 451 (lb). And see an annotation in 70 A.L.R. 1232. We therefore hold that the delegation of au- thority to the Texas Citrus Coamlsslon In connection vlth determining the amount of the tax Is not unconstltutlorul as a delegation of the legislative power to lev taxes. We refrain from passing upon the nature of the tax as concerning Its distribution and also as concern- ing Its collection fiat the grower. Those questions Hon. J. E. McDonald, page 25 (V-922) have not been asked and are not covered by this opinion. SUMMARY The tax levied under Acts 51st Leg.,R.S., 1949, ch. 93, p. 150, codified as Article 1186, V.C.S., for the establishment and op- eration of the Texas Citrus Commission, Is not in violation of Article VIII, Section 3, of the Constitution of Texas which re- quires that taxes be levied and collected only for public purposes. Floyd Fruit Com- pa y v. Florida Citrus Commission, 128 Fla. 56;, 17 So. 248 (1937); State ex rel Graham 59 Idaho 321, t12P.2d 649 (1938r; ii=?= 11 er v. Michl 296 Mich., 248 ana State Depa&ment of Agriculture v. Sl- bille, 207 la. 877, 22 So.2d 202 (1945). The tax is not In violation of Article II, Section 1, or of Article III, Section 48, of the Constitution of Texas, as en ln- valid delegation of the taxing authority to an administrative agency. Penny v. City of Rockdale, 62 Tex. 451 (1884');Stratton v. Commissioners Court of Kinney County 1 s.w (T Ci 9 1 erroi rZ.); 1 Coo:ii'on %at& "& ( % ,'d!i924) 195. Yours very truly, ATTORNEY GENERAL OF TEXAS DJC:bh: gl This opinion has been considered and approved In limited conference. ATTORNEY GENERAL