GROVER S~S AU~TXN ,a.TEXAS
HID
Honorable W. J. Townsend
County Attorney
Angellna County
Lufkin, Texas
Dear Sir: opinion no. o-6629
Re: Under the given facts does
the Commlsslonersl Court of
.,Angellna County have the
authority to use a portion
of-the air port funds to
gravel the road $.nquestion?
Your rOqU38t for an opinion on the above question
read8 a8 f911OW8:
“i&gOlh COUIIty Voted a iona hiSUe t0
purchase and establish an airport. With F p!r-
tion of the proceeda of 8aia bond issue, .~..
land vas purchased for the establishment of an
airport, which airport ha8 been established on
the land purchased by the county for 8UCh purpose.
“The airport is located about 3/b ,of a mile
from the state highway leading to Lufkin, tiiah
18 a hard eurfaced hlghway. To make the airport
available for the purpose for which it la built,
it is necessary that said road leading from-~the
airport to said highway be graveled or hard aur-
faced. Would it be lawful for the Commisaloners~
Court to use a portion of the airport fun&s to
gravel or hard surface the 3/4 of a mile of the
public road leading from the airport to said
atate hIghway, to make eaid airport available in
all kIna of weather?"
Article 1269h, Vernon's Annotated Civil Statutes, is
in part 88 fol~ovs:
"Section 1. A- That the governing body of any
incorporated city in this State may receive through
gift or dedication, and is hereby empowered to ac-
Honorable W. J. Tovnsena, page 2 (o-6629)
'quire, by purchase without condemnation or by pur-
chase through condemnation proceedings, and there-
after maintain and operate as an airport, or lease,
or sell, to the Federal Government, tracts of land
either within or without the corporate limits of
such city ana vithln the county In which such city
his 8itUatOd, EUIdthe cOUlllLt88iOllt3r8'
COUI'tOf any
county may likewise acquire, maintain and operate
for like purpose tracts of land within the limits
of the county.
.“. . . ,
“Sec. 2. (a) For the purpose of condemning or
purchasing, either or both, lands to be U8Od and
matitalned as provided in Section 1 hereof, ana
improving and equipping the same for such use, the
governing body of any oitg or the Commissioners'
Court of any county, falling vithln the terms of
8UCh Section, may issue negotiable bonda of the
city or of the county, as the case may be, and
levy taxes to provide for the interest anb slnk-
ing fUa8.of any such bonds so issuea, the au-
thority hereby
_ given
- for the issuance of such
bond8 &Id lOVy and COlleCtiOn of 8uch taxes to be
exercised in accordance with the provisions of
Chapter 1 of~Ti.tle22 of the Revised Civil
Statutes of 1925.
". . . .
'Sec. 3. Any air port acquired under and by
vlrtue,.ofthe terms of this Act 8htil be under the
management and control of the governing body of the
city or the Commisaloners~,Court of the county ac-
quiring the Fame, which is hereby expressly author-
ized and empowered to Improve, maintain and conduct
the same as an air port, and for that purpose to
make ana provide therein all necessary or fit lm-
provements and facilities and to fix such reason-
able charge8 for the use thereof a8 such governing
body or CommissIonerat Court shall deem fit, and to
mslcerules and regulations governing the use there-
of. All proceeds from such charge8 Shall be devoted
exclusively to the maintenance, upkeep, improvement
and operation of such air port and the facllltles,
StNCtUI'OS, and improvements therein," .*. .
Honorable W. J. Tovnsend, page 3, (O-6629)
Chapter 1, Title 22, of the Revised Civil Statute8
of Texas, 1925, is in part as follows:
'Article 701. Shall hold el&.tlon. l%e bonds
of a county or an Incorporated city or town shall
never be i88UOd for any purpose unless a proposi-
tion for the issuance of such bonds shall have been
first submitted to the qualified voters who are
property tax payers of such county, city or town.
"A&t. 702. Qukstlon submitted; In all cases
when the governing body of a county, city or town
shall order an election for the issuance of the
bonds of the county, city or tovn or of any political
subdivision or defined district of a county, .such
body shall at the same time submit the question of
whether or not a tax shall be levied upon the proper-
ty of ~suchcounty, city or town, political 8Ub-'
division or defined district for the purpose of
paying the interest on the bonds and to create a
sw funa for the redemption of the bonda.
UArt. 703. SUbmiSSiOn of proposition. The
proposition to be submitted shall di8tinCtly specify:
1. The purpose for vhzichthe bond8 are to be iSSUed;
2. The amount thereof;
3. &he rate of Interest;
4. he levy of taxes 8Uff$Cient to Pay ihe =ual
interest and provide a sinking Arid to pay the
bond8 at maturity;
5. The maturity date, or that the bond8 may.be
issuea to mature serially within any given nuni-
ber of years not to exceed forty."
h the case Of CarrOll vs. WilliamS, COUnty TIwaSUrOr,
et al, 202 9. W. 504, the Supreme Court had under considera-
tion the power of the Commiaslonera* Court to transfer rolrey
from one.fund to another. while the fasts in that case are
somewhat different from those here being considered, the
principle of law Is, In our opinion, the same. In that case
the Comm18sloner8t Court of Jefferson County, as part of a
gocoral scheme for exacting from tarpayers and expending on
road8 ana bridges more money than the ConstitutAon of this
State permits to be rsised by taxation and emended for that
-1
Honorable W. J. Tovnsend, Page 4, (O-6629)
purpose, deliberately 8nd purposesly levied, for various
other purposes defined by said Constitution, which were known
by that Court at the time of such levies thereof, to be much
greater in amounts than were required to meet the current ex-
penditures for such other purposea, and afterwards trans-
ferred such excesses in such funds to the Road and Bridge
Fund, and expended same accordingly. in holding such prac-
tice to be unlawful.,the Court laid down the following
principles of law which sre applicable here:
~"Going to the real gist of the main issue before
us, section 9 of article 8 of our state Constitution,
supra, inhibits any and all transfers of tax money
from one to another of the several classes of funds
therein authorized, and, as a sequence, the expendi-
ture, Por one purpose therein defined, of tax money
raised ostensibly for another such purpose. The
immediate purpose in so prescribing a separate maxi-
mum tax rate for each of the classes of purposes
there enumerated is, no doubt, to limit, accordingly,
the amount of taxes which may be raised from the
people, by taxation, declaredly for those several
purposes or classes of purposes, respectively. But
that is not all; The ultimate and practical and ob-
vious design and purpose and legal effect is to
inhibit excessive expenditures for any such purpose
or class of purposes. By necessary implication said
provisions of section 9 of article 8 were desIgned,
not merely to limit the tax rate for certain therein
designated purposes, but to require that any and all
money raised by taxation for any such purpose shall
be applied, faithfully, to that particular purpose,
as needed therefor',and not to any other purpose or
use whatsoever. Those constitutional provlslons con-
trol, not only the raising, but al80 the application,
of all such funds; and such is the legal effect of
articles 2242.and 7357, aupra, when properly construed
and applied.
"True, the COn8titUtiOn do08 not 889, in 80 many
Words, that money raised by a county, city or town,
by taxation for one such purpose shall never ,be ex-
pended for any other purpose - not even for another
of the,five general classes of purposes defined and
.approved in said section 9 - but that, we thin&, is
its plain and certain meaning and legal effect. The
very definitions of those several classes of pur-
posea, a@ the declaration of authority to~tax the
people therefor, respectively, coupled, as they are,
in each instance, with a limitation of the tax rate
for that class, must have been predicated upon the
Honorable W. J. Townsend, page 5~ (O-6629)
expectation and intent that, as a matter of common
honesty and fair dealing, tax money taken from the
pOOplO 08ten8ibly for one such specified purpose
shall be expended, as needed, for that purpose
alone, as veil aa that the tax rate for that par-
ticubr class, in any one year shall not exceed
the prescribed maximum."
In the aase of Moore, County Judge, et al vs.
Coffman, et al, 200 3. W. 374, the Supreme Court was consider-
ing vhether the Commissionersl Court of Knox County could use
the proceeds of bond8 voted forbuilding a bridge acroaa the
Brazes River'at a designated place for building a bridge at
another place.' In holding that the proceeds~of said bonds
must be used for the purpose stated, the Court held as fol-
lows :
"It vaa the duty of the Commissioners* Court
.ukder the statute (art. 606), in statingthe proposl-
tion to be voted on in the bona eleotlon, to specify,
both in its order for the election and in the notice
of the election, the purpose for vhioh the bonds were
to be iaaued. The rosa09 of this requirement is that
the voter8 in 8Uoh an election are entitled to know,
beforehand, the specific use to which their taxes
levied in virtue of the election are'to'be put. The
design of the statute 18 that the purpose of the bonds
shall-be.stated in such way as to fairly and fully
apprise the voter8 of it. Ro particular form is pre-
scribed for it8 statement, and the way in vhlch it
shall be stated 80 as to accord with the apirlt of
the statute Is neaessarily left to the Commissioners*
court. In this instance, the oourt in defining the
proposition in respect to the purpose of the bond8
saw fit to declare that it was not only to construct
these two bridges, but to construct them at certain
designatea locations. Stating the purpose in this
manner contravened no law% hence the court was
privileged to thus announce it. Since the aourt by
deliberate action made the location of the bridges
a part Of the proposition submitted, it i8 fair to
conclude that their erection at the .locationanamed
constituted in the court13 mind an essential part of
the purpose of the bonds. If so, it must have in-
tended that the'voters in the election should uuder-
8tand that included in such purpose Was the building
of the bridg& at these particular places. That the
voters did so understand can hardly be denied.
._
.
I
Honorable W. J. Townsend, Page 6, (O-6629) ,~
"If it was within the lavful power of the
court to so declare the purpose of the bonds; if
It intended that the voters should understand
their purpose to be the erection of the bridges
at these particular crossings; and the voter8
cast their ballots accordingly, we think that is
an end of the question. It then becomes simply a
matter of keeping faith with those whose will the
election expressed.
,"To say.,as is urged, thatthe incorporation
of the location of the bridge8 in the Commissioners1
.Courtls statement of the purpose of these bonds was
surplusage and Is therefore of no effect, 18 to deny
to those courts the power of 80 declaring the purpose
of a bona issue of this character as a means of fully
acquainting the property owning voters of a county
with thenexact use intended to be made of the bonds.
For if the court had the power to include in its
definition of the purpose of the bonds 80 material
.a matter a8 the prOPO8Od locations of the bridges,
that part of the stated purpose cannot be regarded
a8 mere surplusage. It csn be 80 treated only upon
Ahe theory that the court in 80 including it trsn-
-8cendedIts authority, ma for that reaaon 18 not
bound by it. We decline to so hold. The specific
use .towhich It is intended by public officials that
.public moneys shall be applied is always of concern
to those upon whom tsxation rests the burden of the
expenditure. In the matter of bond issues authorized
by ,the vote of.the citizenshlp affected, in the sub-
mission of the proposltlon the law encourages, rather
than frowns upon, a full and definite statement of
their purpose. The location of an expensive public
Improvement dependent upon such bond issues is fre-
quently 0f:as prime importance as~its construction.
In such cases,it is 6nly fair to the voters in the
electioncalled to determine the matter to inform
.them in advance of the intended~,location,80 that
the actual merits of the given proposal, into,vhich
the question ~of location may largely enter, ~shall
decide the contest. When this is done, the location
is a part of the vote~ana is entitled to an equivalent
'protection. Wee can perceive nothing in such a courae
that elther.trenches upon or exceeds the authority
possessed in these matters by Commissioners* Courts
or municipal bOdiO8,~ or that amoUntS, a8 18 contended
to's surrender of their duty into other hands."
_-- .. _..
Honorable W. J. ToWnsend, Page 7, (C-6629)
In the a880 of Levis et dl v8i City of Fort Worth et
al, 89 3. W. (26,)975, the Supreme Court was considering
whether or not the City Counail had authority to use the pro-
COed8 Of the 88&I Of oOrt8in bonds for VEdOUS named pUrpO808,
8nd the Court, in holding that 8UOh purposss were not foreign
to the purposes for vhioh said bond8 verb voted, laid down the
following general rule of law:
"It 18 elementary that the proceeds of bond8
voted by the people must be expended for the pur-
poses for vhioh they were voted."
Angelina County having voted bond8 for the purpose of
purohasing and 08t8bli8hiIlgan air port, it i8 our opinions
that the prooeeds of said bonds oannot be U8Oa to gravel or
hard 8XU'f8COthe pub110 road leading from said air port to
the State Highway, 88 that would be using the proceeds Of
SSid bond8 for 8 purpose different from that for vhluh raid
bonds were voted and V0ula be in violation of the above rule8
Of 18V.
we tlTlStthat this 88ti8f88tOrily 8ll6VOrO yOUr ill@l'y.
Your6 very truly,
ATTORJEY gElfEW& OF Tw;as
By /8/ Jas. W. Bassett
JaS W; Bassett
JWBrLJ:EAC ..ABsistant
.-._
APPROVED J-C-N26 1945 APPROVED
- . . ..- OPmIoN
IS/ Oar106 G, Ashley COIdMITTEF.
BYBWB.'