Untitled Texas Attorney General Opinion

TEEA~~~RNI~Y GENERAL

Hon. Henry C. Kyle Opinion No. O-5338
County Attorney Re: Is it lawful for Hays County to pay
Hays County principal and interest due on road and
San Marcos, Texas bridge fund indebtedness with receipts
from motor vehicle registration license
fees and use money collected from the
levy of the road and bridge constitution-
al 15$? tax, which has been pledged for
retirement of said principal and interest,
to pay the salaries of the county commis-
sioners and a part of the ex officio sal-
ary of the county judge, and is Article
2350(l), Vernon’s Annotated Civil Stat-
utes, constitutional to the extent of
allowing payment of the salaries of coun-
ty commissioners and a part of the ex
officio salary of the county judge out of
any fund derived from the 15# constitu-
Dear Sir: tional tax levy for roads and bridges?

Your request for an opinion on the above matters has
been received and carefully considered. We quote from your re-
quest as follows:

“The receipts of the Hays County road and bridge fund
are derived from the Constitutional 15$ levy as provided in
Art. VIII, Sec. 9 (the additional 15# tax for that fund
has never been voted); motor vehicle registration fees;
fines and forfeitures; and, state aid for retirement of cer-
tain indebtedness and payment of interest. All of the 15$
levy has been heretofore pledged by the Commissioners Court
for the payment of principal and interest on outstanding
road and bridge fund amortized indebtedness. All of the
said State aid is applied as required by law. The entire
salary of each County Commissioner and a part of the ex-
officio salary of the County Judge are paid from the road
and bridge fund as is presumably allowed under certain
circumstances by Art. 2350(l) of V.A.C.S. where the entire
levy of 25$ is made for the general fund. Such salaries
paid from the road and bridge fund do not exceed the in-
come from the 15# constitutional tax levy for roads and
bridges. The other income of the road and bridge fund,
exclusive of automobile registration fees, state aid and
the said 15p levy, is not sufficient to pay such salaries.
 -- .

Hon. Henry C. Kyle, page 2 (O-5338)

Although the entire said 15$ levy has heretofore been
pledged, as stated above, it is contended by the Commis-
sioners Court and the County Auditor of Hays County that
it is impossible to say that any salaries are paid from
motor vehicle registration fees, because all the funds
are in one ‘pot’, so to speak; that such salaries are com-
ing out of the said Constitutional 15p levy and other rev-
enues of the road and bridge fund besides the motor vehi-
cle registration fees and state aid; and, that Art.
6675a-10 specifically provides that motor vehicle regis-
tration fees may be used in payment of principal and
interest on obligations issued in construction and improve-
ment of county roads.

‘1. . . .”

In reply to our request for additional information
relative to said matters, you state that Hays County does levy
the entire sum of 25$ provided for the general fund; that all
the taxes levied for retirement of indebtedness are put into the
road and bridge fund without setting up a fund for any bond or
warrant issue and that whatever amount is due at the various
dates is simply paid by a warrant on the road and bridge fund.
You also state that the salaries of the county commissioners
and a part of the ex officio salary of the county judge are paid
from the road and bridge fund, and that the commissioners’ court
and the county auditor contend that these salaries come out of
the 15Q constitutional road and bridge fund tax, which has been
pledged to pay the indebtedness referred to, since the motor ve-
hicle registration fees are used to pay what said 15p tax has
been pledged to pay, and you ask whether Article 2350(l) of Ver-
non’s Annotated Civil Statutes, is constitutional Insofar as it
permits the payment of said salaries from the proceeds of said
15# road and bridge fund tax.

Article 6675a-10 of Vernon’s Annotated Civil Statutes,
which provides for the apportionment of funds collected by
county tax collectors from motor vehicle registration fees, is
in part as follows:

“On Monday of each week each County Tax Collector
shall deposit in the County Depository of his county to the
credit of the County Road and Bridge Fund an amount equal
to one hundred (100%) per cent of net collections made here-
under during the preceding week until the amount so aepos-
ited shall have reached a total sum of Fifty Thousand
($50,000.00) Dollars.

“Thereafter, and until the amount so deposited for the
year shall have reached a total of One Hundred Seventy-five
. -

Hon. Henry C. Kyle, page 3 (O-5338)

Thousand ($175,plO.OO) Dollars he shall deposit to the
credit of said Fund on each week an amount
equal to fifty (50$> percsm of collections made hereun-
dsr during the preceding week.

II
. 0 None of the monies so placed to the credit
0 .

of the Road and Bridge Fund of a county shall be used to
pay the salary or compensation of any County Judge or
County Commissioner, but all said monies shall be used for
the construction and maintenance of lateral roads in such
county under the supervision of the County Engineer, if
there be one, and if there is no such engineer, then the
County Commissionerss Court shall have authority to command
the services of the Division Engineer of the State Highway
Department for the purpose of supervising the construction
and surveying of lateral roads in their respective coun-
ties. All funds allocated in the counties by the provi-
sions of this Act (Arts. 6675a-1 to 6675a-14; P-C, Art.
807a) may be used by the counties in the payment of obliga-
tions, if any, issued and incurred in the construction or
the improvement of all roads, including State Highways of
such counties and districts therein; or the improvement of
the roads comprising the County Road system.”

It is the opinion of this department that, under the
provisions of said quoted statute, funds received from motor ve-
hicle registration fees could be used in the payment of obliga-
tions issued and incurred in the construction or improvement of
all roads in Hays County, including State highways and districts,
as well as any roads comprising a county road system, which would
evidently include all of the indebtedness referred to by you, but
for the following reasons:

Payment of all of said indebtedness has already been
arranged for as provided by law, in that the 15$ road and bridge
fund tax set out in the Constitution and statutes has been set
aside for that purpose and, under the laws of Texas, the funds
raised by the levy of said 15# tax cannot be used for any other
purpose. This rule of law was laid down by the Supreme Court
in the case of Carroll v. Williams, 202 S.W. 504. There was
involved in this case the authority of the commissioners~ court
of Jefferson County, as part of a general scheme for exacting
from taxpayers and expending on roads and bridges of the county
more money than the Constitution of this State permitted to be
raised by taxation and expended for tha,t purpose, deliberately
and purposely levied, for various other purposes defined by
said Constitution, taxes which were known by that court, at the
time of such levies thereof, to be much greater in amounts than
 - .

Hon. Henry C. Kyle, page 4 (O-5338)

were required to meet the current expenditures for such other
purposes, and afterwards transferred such excesses in such
fund to the road and bridge fund, and expended same accordingly.
In holding that said court did not have such authority, the Su-
preme Court made the following holdings that are applicable
here:

“Going to the real gist of the main issue before us,
section 9 of article 8 of our state Const%tution, 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 expenditure, for one purpose there.-
in defined of tax money raised ostensibly for another such
purpose. !!he immediate purpose in so prescribing a separ-
ate maximum 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, aecl aredly for those several purposes or classes
of purposes , respectively. But that is not all. The ulti-
mate and practical and obvious 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 aesig-
nated 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 there-
for, and not to any other purpose or use whatsoever. Those
constitutional provisions control, not only the raising,
but also, the application of all such funds; D D I

“True, the Constitution does not say, in so many words,
that money raised by a county, city or town, by taxation
for one such purpose shall never be expended for any oth-
er purpose --not even for another of the five general
classes of purposes defined and approved in said section
v--but that, we think, is its plain and certain meaning
and legal effect. The very definitions of those several
classes of purposes, and 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 expec-
tation and intent that 9 as a matter of common honesty and
fair dealing, tax money taken from the people ostensibly
for one such specified purpose shall be expended, as
needed, for that purpose alone, as well as that the tax
rate for that particular class, in any one year, shall
not exceed the prescribed maximum.
I,. . D .
. .

Hon. Henry C. Kyle, page 5 (O-5338)

“Under a Constitution which designated certain speci-
fic funds for counties, cities, and towns, and fixes a
different maximum tax rate for each such fund, why should
the local governing body be permitted to expend for one
such purpose money raised by taxation under an entirely
different grant of power and for an essentially different
constitutional purpose? That, it seems to us9 would. not
conserve any sound public policy.

“No implied power to transfer money from one to an-
other such constitutional fund is derived from the fact
that the original fund contains more than enough to meet
the current demands against it. Such excess may be re-
tained in that fund, and applied in succeeding years to
the very purpose for which it was raised, thereby possibly
reducing the future tax rate for that purpose.

“Nor is the asserted power to transfer money from one
to another such fund aided, even to the slightest extent,
by the circumstance that any particular levy of taxes for
the benefit of the specific fund which would be augmented
by such transfer was made at a rate less than the maxfmum
rate permitted by the Constitution, or even, as In the case
at bar, at a rate less than that authorized at a referen-
dum election. The power to tax, up to the authorfzed maxf-
mum, but separately for each such purpose, is conferred,
and exists , and may be exercised freel.y, without regard to
the existence or nonexistence of the asserted power to
transfer, under any circumstances, the proceeds of such
taxation, or any portion thereof, from one to another such
fund. But, on the other hand, said asserted power of
transfer of tax money from one to another such fund, and
the consequent expenditure thereof for a purpose essen-
tially different from that for which, ostensibly, it was
taken from that taxpayer, effectually is inhibited and
nullified, fn law, by reason of the fact that our Constf-
tution itself--to say nothing of our statutes--speciff-
tally has designated and permitted the creation of each
such separate fuud, and for each expressly and specifi-
cally has prescribed a separate maximum tax pate, Utter-
ly and radically at variance with those provisions is the
whole conception of a transfer of money from one to an-
other such fund, and its consequent application accord-
ingly O

Under these rules of law, the funds collected by Hays
County by means of the 156 constitutional tax levy for the pur-
pose of paying the principal and interest on outstanding road and
bridge fund indebtedness cannot be used for any other purpose and,
the funds so collected being sufficient to take care .of said fn-
debtedness, the funds received from motor veh%cle regestration
Hon. Henry C. Kyle, page 6 (O- 5'338)

fees cannot be used to pay said indebtedness. It is clear from
the provisions of Article 6675a-lo, that said motor vehicle reg-
istration fees cannot be used to pay any of the salaries of
county commissioners or county judge.

In determining whether or not Article 2350(l), which
provides that as much as 7596 of the salaries of the county judge
and all of the salaries of the county commissioners may, at the
discretion of the commissioners9 court9 be paid from the road
and bridge fund in counties where the constitutional l.imit of
25$ on the $100.00 is levied for general purposes, is constitu-
tional, the rules of law laid down by the Supreme Court in the
case of Carroll v. Williams9 supra, must be applied9 and no
funds over and above those authorized by the Constitution may
be used to pay said salaries.

In the case of Tinner v a Crow 9 et al0 9 78 S.W. (2d)
588, Com.App., there was involved the constitutionality of Sec-
tion 8a, Special Laws 19199 2nd Called Session9 page 16, Chapter
79 authorizing the members of the commissionersN court and coun-
ty judge of Hill County to use their automobiles in the perform-
ance of their duties as set out in a bill theretofore passed at
the regular session of said Legislature providing for a more
efficient road system in Hill County, and that all of the ex-
penses of said automobiles should be paid by the county out of
the road and bridge fund. Said law was u@eld on the ground
that the use by the commissioners of their private automobiles
clearly had to do with the maintenance of the public roads of
the county, and if so9 the Legi.:lature nad’the authority under
the Constitution to authorize tjie use 0:: a. part of the road and
bridge fund to accomplish this gurpoce, +$plying this reason-
ing to the question here under co~:?i.ueration, it is evidently
necessary for someone to have char*ge of and administer the road
and bridge fund and to perform various services in connection
therewith which would have to do ,wi?;h the mafntenance of the
public road system of Hays County, therefore, it is proper that
compensation for such services should be paid from the road and
bridge fund, though, ordinarily, all salarit’:i should be paid
from the general fund.

The case of Underwood’v. Howard9 County Judge, et al. 9
1 S,W.(2d) 730, writ dismissed, deals with a contract entered
into by the commissioners9 court of Childress County for the
making of an abstract covering delinquent taxes and9 in comply-
ing with said contract, said commissioners9 court issued various
warrants which were to be paid in part from delinquent taxes as
collected over a certain period of time9 except county general
fund delinquent taxes9 and in part from delinquent taxes col-
lected for the general county fund0 In holding that the warrants
first above referred to could not be thus paid9 the court he1.d as
follows:
Hon. Henry C. Kyle 9 page 7 (O-5338)
_ -

“The commissioners1 court was not authorized to con-
tract for the ayment of the $500 warrants aggregating
not to exceed ii16,000, with interest thereon, out of all
the delinquent, taxes collected except theiportion of said
delinquent t axe s belonging to Che general fmd of the
county, as this was obviously an attempt to appropriate
the state taxes, the jury fund, the road and bridge fund,
and any improvement fund included in said delinquent taxes
to the discharge of an obligation payable only out of the
general fund. Carroll vi Williams, 109 Tex. 155, 202 S.W.
504; Commissioners’ Court of Henderson County v. Burke,
(Tex.Civ.App.) 262 S.W. 94; Wallace et al. v0 Commission-
ers’ Court of Madison County et al. (Tex.Civ.App. 281 S.W.
5939
‘IWe are not to be understood, however, as holding
that said warrants issued for the payment of the making of
the abstract of the property of Childress county are Q&&
and y2j&, but our conclusion is that the commissioners~
court was without authority to set aside and place in a
separate fund, for the payment of said warrants, all the
delinquent taxes collected, belonging to said severzilcon-
stitutional funds, except that portion thereof belon ing
to the general fund. Austin Bras. v. Patton et al. 7Tex.
Com.App.) 288 S.W. 182.”

Another case applying the rule of law that iunds levied
and collected for certain purposes cannot be transferred to some
other fund and used for some other purpose is that of Jefferson
Iron Company et al. v. Hart, Tax Collector, 45 S.W. 321. The
facts of this case were that the commissioners* court had levied
a tax for county purposes for the full limit allowed by law.
In addition thereto, it had levied a tax for courthouse repairs
when no such repairs were to be made, the real purpose and in-
tention of levying said tax for courthouse repairs being to raise
an additional fund for general county purposes. In holding such
levy for courthouse repairs invalid, the court held as follows:

“The case of Railroad Co. v. Dawson Co., 12 NebO 255a
11 N.W. 307, was a suit by injunction to restrain the col-
lection of a sinking-fund tax. It appeared that large sums
collected for the sinking-fund tax for the three previous
years had been transferred to the county general fund. The
court in that cases uses the following language: PThe lim-
itation upon the rate of taxation is for the protection
of the taxpayers, and to secure economy in the expenditure
of public moneys. It is the evident intention of the law
that only the amount required in any particular fund shall
be levied, and no more. If the law limits the levy for
the ordinary: county revenue to ten mills on the dollar val-
uation, no, greater sum can be raised for that purpose by
Hon. Henry C. Kyle, page 8 (0-5338)

levying more than is required for a sinking fund, or any
other tax, and then transferring the surplus to the gen-
eral fund. If the law could be thus evaded! it wou1.d
afford no protection to taxpayers whatever. See 9 also,
Vanover v. Davis, 27 Ga. 355; State v. Commissioners of
Marion Co. 21 Kan. 419; Bank v. Barber, 2& Kan. 534;
Desty, Taxin, 1059; Cooley, Tax’n (2d Ed.) 2Y0 In this
case it appears that for the past eight years a tax for
court-house repairs has been levied and coll,ected, and
appropriated for county purposes. The petRion nl.leges,
in effect, that there is no necessity for this tax; that
it is levied for the purpose of, and with the i,n%ention
of9 using the fund arising therefrom Par the payment of
current expenses of said county, and aot for the purpose
of repairing the court house and jnfl. These allegations
are sustained by the findings of the .trial ccurt. Under
these fa&s, if the tax for the Pcourthouse repairs is
sustained, it in effect renders nugatory the limitation
in the constitution prohibiting a county from levying a
tax in excess of 25 cents on each $100 valuation of the
property for county purposes. This provision of the
constitution cannot be defeated in this indirect manner”
If this were a case in which the comni,ssioners’ court was
exercising its discretion as a court 1.n the levy of a tax,
we would not feel authorized in interfering wP.th its dis-
cretion. The record presents a case in which the comnis-
sioners’ court 9 after having levied a tax for county pur-
poses to the full limit authorized by the cons~tftution,
has made an additional levy for the purported purpose of
court house repairs, when the real purpose and intention
is to raise a fund for general county purposes. This
seems a meclns adopted to defeat the ,limfta,tion on taxation
for county purposes imposed by the constitu,tion. o D “”

Applying these well settled rules of law to the ques-
tion of whether or not salaries of county commi,ssioners and
county judges can be paid from the road and bridge fund, i’t is
clear that funds levied and collected for the road and bridge
fund must be used for road and brf.dge purposes, an,d ,that no
part of such funds can be used to Day the salaries of county
commissioners or county judges, unless such payments be in pay-
ment for services performed in the maintenan~;e of the public
road system. It is our opinion, ,therefore, that the salaries
of the county commissioners ?f Rz.ys County ran be paid from
the road and bridge fund insofr as t;he f.md; so used are in.
payment for services performed in the mai,ntanan.ca of th,e publi::,
road system of Hays County, but that a,ny salaries paid o,ther--
wise would be, in effect 9 taking the funds belonging to the. road
and bridge fund and appropriating same to the discharge of ob-
ligations payable only out of the general rund, thereby defeating
Hone Henry C. Kyle, page 9 (O-5338)

the limitation of taxation for county purposes imposed by the
Constitution. This holding would also apply to the county judge
of Hays County but for the fact that Article 2350(l), insofar
as it applies to a county judge, is, in our opinion, of no ef-
fect, for the following reasons:
Article 2350 was passed originally l.n 1925. It has
been amended several times since then but until the last amend-
ment in 1935 by which what is now Article 2350(l) was added, it
had covered only salaries of county commissioners. In this last
amendment, salaries of county judges of certain counties are men-
tioned for the first time, and provision is mada therein that
as much as 7yb of the salary of the county judge may, at the
discretion of the commissioners’ court, be paid from the road
and bridge fund in counties where the constitutional limit of
25p on the $100.00 is levied for the general fund, However, the
caption of the bill by which this amendment .was made makes no
reference to the fact that the salaries of county judges are to
be affected thereby, said caption being as follows:

“An Act to amend Article 2350, Title 44, Revised Civil
Statutes of the State of Texas, 1925, as amended by the
Acts nf the Thirty-ninth Legislature, Regular Sessions, Chap-
ter 135, Section 1; and as amended by Act of the Fortieth
Legislature, page 4359 Chapter 290, Section 1; and as
amended by Act of the Fortieth Legislature: First Called
Session, page 138, Chapter 46, Sections 1; and as amended
by Act of the Forty-third Legislature, Regular Session
Chapter 216; and as amended by Act of the Forty-third Eeg-
islature, First Called Session, Chapter 83> page 220; and
so as to provide the salaries of County Commi.ssEoners and
Precinct Commissioners in certain counties; providing that
all laws or parts of laws in conflict with this Act are
hereby expressly repealed; providing that if any part of
this Act be deolared unconstitutional it shall not(;Feet
any remaining part; and deolaring an emergency,”
362, p0 1036, Regl. Session, 44th Legislature, 1,9350)’
Article III, Section 35, of the Constitution is as
follows:
“No bill, (except general appropriation bfl.ls,
which may embrace the various subjects and accounts, for
and as on account of which moneys are appropriated) shall
contain more than one subject, which shall be expressed in
its title. But if any subject shall be embraced in an act)
which shall not be expressed in the title, such act shall
be void only as to so much thereof, as shall not be so
expressed.”
The general rule of construction of this Article and
Section of the Constitution, as applied to amendments, is laid
Hon. Henry C. Kyle, page 10 (O-5338)

down in 39 Tex.Jur., Sec. 48, pages 102-,104, in the following
language :

‘I 48. Amendatorv Act+ -- The title of an amendatory
act is-ordinarily sufficient to allow any amendment germane
to the subject of the original statute, if it properly spe-
cifies the chapter and section, or the revision, and arti-
cle, to be amended. When the ‘title of the original act is
sufficient to embrace the matters covered by the provisions
of the amendatory act, the title of the latter act is not
required to state the subject of the l.aw amended or to spe-
cify the nature of the proposed amendment. But new substan-,
tive matter contained in an amendment, which is not germane
to or pertinent to that contained in the provision amended,
is invalid as legislation upon a latter not expressed in
the title of the amendatory act.

“Saeciffcation of field of amendment--In addition to
the statement of a purpose to amend a given law or provf-
sion, a title may specify the nature of th,e amendment, and
when it does so the body of the act must conform. A title
that specifies the particular field an amendment is to
cover or states a purpose to make a certain chan,ge in the
prior law 9 and that is not merely descriptive of the mat-
ters to which the law relates, limits the amendatory act
to the making of the change designated and preelu,des any
additional, contrary or different am,endment. Thus a t;1,tl.e
that expresses a purpose to change a prior %aw by adding OI
extending a provisions or conferring a right does not war-
rant an amendment that omits OP restricts a provision of
the original act or destroys a previousl,y existing right.
Similarly a title expressing a purpose to change a deffnf-
tion does not authorize a change of penalty” Nor does a
title expressing a purpose to change a penalty authorize
a change of definition0 And where a title names as the
purpose of the act the amendment of specified sections of
a former law, the body of the act 9 after amending such
sections, may not proceed to set out other soztions which
would become a part of the original act buo whl.ch are not
included in the title by reason of being changes in, or
enlargements of, the sections specified thereon.“’

Applying this rule of law to the amendmen% of Article
2350 passed in 1935 and known as Article 2350(l) 9 and it being
clear that the caption of said ‘bfl.1 did not conttifn any refer-
ence to the fact that said bill was i.ntend,ed to make it pccssfble
for as much as 75jb of the salaries of county ju,dges to be paid
from the road and bridge fund in counties where thee c,onsti,tutianal
limit of 254! on the $100.00 is levied for the general fund, there
is no question but that said amendment, insofar as the salaries
. -

Hon. Henry C. Kyle, page 11 (O-5338)

of county judges Is concerned, is unconstitutional and void,
and we so hold.

For your information relative to the ,proper handling
of the various funds referred to, we hand you herewith a copy
of our Opinion No. O-2942. We also refer you to Article 839
of the Revised Civil Statutes of Texas, which reads as follows:

‘INo city or county treasurer shall honor any draft
upon the interest and sinking fund provided for any of the
bonds of such city or county, nor pay out nor divert any
of the same, except for the purpose of paying the interest
on such bonds or for the redeeming the same, or for in-
vestment in such securities as may be provided by law.
Acts 1899, p. 45."

We think the fund derived from the 15# constitutional
road and bridge fund levy should be placed in interest and sink-
ing funds for the purpose of paying the indebtedness referred to,
each of said interest and sinking funds to be kept separate from
the others, as well as separate from the road and bridge fund
used for other purposes. Since it takes all of the funds de-
rived from said 15$ constitutional road and bridge fund levy to
pay said indebtedness, there would be no funds to place in the
regular road and bridge fund, except such funds as may be re-
ceived from other sources.

We are returning to you herewith the audit report of
Hays County for 1942. Trusting that this satisfactorily an-
swers your inquiry, we are
Very truly yours

ATTORNEYGENERALOF TEXAS

By /s/ Jas. W. Bassett
Jas. W. Bassett, Assistant
APPROVEDJCL 19, 1943
/s/ Grover Sellers
FIRST ASSISTANT ATTORNEYGENERAL

APPROVED: OPINION COMMITTEE
BY: BUB, CHAIRMAN

JWB:db:wb

Enclosures