. . -
F,.~~ORNEY GENERAL
OFTEXAS
Honorable R. V. Ragford
County Auditor
Rusk County
Henderson, Texas
Dear Sir: Opinion No. o-3211
Re: Purchase of land for airport out
of county general fund.
Reference is made to your letter of February 23,
1941, requesting the oplnlon of this Department upon the
following questlon:
93oea the CommFssioners' Court have the
authority under Section 15 of R.C.S. 2351-,Pow-
ers and Duties of Commissioners' Court, and Art.
1269h R.C.S. to purchase up to 640 acres of land
for an airport fn Rusk County, out of the current
general fund revenues or is it mandatory for
the court to call an election and issue bonds to
pay for this tract of land If the election carries.
"We are going under the fact that the county
has the money in the general fund and is able to
pay for the 640 acres."
Article 1269h, Vernon's Annotated Civil Statutes,
reads as follows:
"Sec. 1. That the governing body of any ln-
corporated city in this State may receive through
gift or dedication, and is hereby empowered to acquire
by purchase, without condemnation or by purchase
through condemnation proceedings, and thereafter maln-
tain and operate as an Air port tracts of land, either
within or without the corporate limits of such city
and within the county in which such city is situated,
the land acquired and held by any such city never
to at any one time exceed six hundred forty acres, and
the Commissioners' Court of any county may likewise
acquire, maintain and operate for like purpose tracts
of land within the limits of the county, not to exoeed
at any one time six hundred forty acres.
HC norable R. V. Rayford, page 2 0 -3211
Y3ec. 2. For the purpose of condemning or
purchasing elltheror both, lands to be used and
maintained as provided In Section 1 hereof, and
improving and equipping the same for such use,
the governing body of any city or the CommFssloners'
Court of any county, falling within the term3 of
such Section, may Issue negotiable bond3 of the
city or of the county, a3 the case may be, and
levy taxes to provide for the interest and slnk-
ing fund3 of any such bond3 30 issued, the author-
ity hereby given for the issuance of such bonds
and levy and collection of such taxes to be exer-
cised in accordance with the provisions of Chapter
1 of Title 22 of the Revised Civil Statutes of 1925.
"Sec. 3. Any Air Port acquLred under and by
virtue of the terms of this Act (art. 1269h.)
shall be under the management and control of the
governing body of the city or the Commissioners’
Court of the county acquiring the same, which is
hereby expressly authorized and empowered to im-
prove, maintain and conduct the Same as an Air
Port, and for that purpose to make and provide
therein all necessary or fit improvements and
facilities and to fix such reasonable charges
for the use thereof a3 such governing body or
Commissloners' Court shall deem fit, and to make
rules and regulatlons governing the use thereof.
All proceeds from such charges shall be devoted
exclusively to the maintenance, up-keep, improve-
ment and operation of such Air Port and the fa-
cilities, structures, and improvements therein,
and no city or county shall be liable for ln-
juries to persons resulting from or caused by
any defective, unsound or unsafe condition of
any such Air Port, or any part thereof, or thing
of any character therein or resulting from or
caused byanynegligence, want of ski.11,or lack
of care on the part of any governlng Board or
Commissioners' Court, officer, agent, servant or
employee or other person with reference to the
constructIon, improvement, management, conduct,
or maintenance of any such Air Port or any struc-
ture, Improvement, or thing of any character what-
ever, located therein or connected therewith.
"Sec. 4. That in addition to and exclusive
of,any taxes which may be levied for the interest
and sinking fund of any bonds issued under the
authority of this Act (Art. 1269h.) the govern-
Honorable R. V. Rayford, page 3 o-3211
ing body of any city or the Commissioners' Court
of any county, falling within the terms hereof,
may and is hereby empowered to levy and collect
a special tax not to exceed for any one year
five cents on each One Hundred Dollars for the
purpose of improving, operating, maintaining and
cbnductlng any Air Port which such city or county
may acquire under the provision of thL3 Act (ARt.
1269h.), and to provide all suitable structures,
and factlllties therein. Prbvlded that nothing
in this Act (Art. 1269h.) shall be construed as
authorizing any city or county to exceed the
limits of indebtedness placed upon it under the
Constitution."
Section 9 of Article 8 of our Constitution reads
Ln part a3 follows:
tt
...and no county, city or town shall levy more
than twenty-five cents for city or county purposes,
and not exceeding fifteen cents for roads and bridges,
and not exceeding fifteen cents to pay jurors, on
the one hundred dollars valuation, except for the
payment of debts incurred prior to the adoption of
the amendment September 25, 1883; and for the erec-
tion of public buildings, streets, sewers, water works
and other permanent Improvements, not to exceed twentg-
five cents on 'the hundred dollars valuation, in
any one year, and except as is in this Constitution
otherwise provided; and the LegFslature may also
authorize an additional annual ad valorem tax to be
levied and collected for the further maintenance of
the public roads: provided, that a majority of the
qualified property taxpaying voters of the county
voting at an electton to be held for that purpo3e
shall vote such tax, not to exceed fifteen cents on
the one hundred dollars valuation of the pl;loperty
subject to taxation in such county. .....
In Carroll v3. Williama, 109 Tex. 155, 202 S.W.
504, the Texas Supreme Court used the following language:
"Second. Going to the real gist of the
maIn issue'before u3, section 9 of Article 8 of
our state Constitution, supra, inhFbit3 any and all
transfers of tax money from one to another of the
several cl&&saesof funds therein authorized, and,
as a sequence, the expenditure, for one purpose thereIn
defined, of tax money raised ostensibly for another
such purpose. The immediate purpose in 30 pre -
Honorable R. V. Rayford, page 4 o-3211
scribing a separate maximum tax rate for each
of the classesa 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
obvious design and purpose and legal effect is
to inhibit excessive expenditure3 for any such
purpose or class of purposes. By necessary Lm-
plication 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 tax-
atlon 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 provlsions con-
trol, not only the raising, but ,also the applica-
tlon, of all such funds; and such is the legal
effect of articles 2242 and 7357, supra, when
properly construed and applied.
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 other purpose---not even
for another of the five general classes of pur-
poses defined and approved in said section 9--
but that, we think, Is its plain and certain mean-
ing and legal effect. The very definitions of those
several classes of purposes, and the declaration of
authority to tax the people therefor, respective-
ly, coupled, as they are, in each Instance, with
a limitation of the tax rate for that class, must
have been predicated upon the expectation and intent
that, as a matter of common honesty and fair deal-
ing, 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 maxLmum."
In Opinion No. O-413 we were concerned with the au-
thority of the commlssioners' court to purchase rlghts-of-way
out of moneys in the county general fund. We held general
fund moneys may not be so used; that under Section 9 of
Article 8 of the Constltutlon money for the purposes con-
templated must come from the ConstitutIonal road and bridge
fund.
_.. -
Honorable R. V. Rayford, page 5 o-3211
In our Opinion No. O-3142 it appeared from the facts
that the county had a surplus in the permanent improvement
fund., It desired to use this money to purchase airport prop-
erty under Article 1269h, supra. We held that since airport
Indebtedness would be a charge agalnst the county permanent
improvement fund, the county might, at its option, issue
bonds or use a surplus existing in such permanent improvement
fund.
You are accordingly advised that under the author-
ities cited revenues in one Constitutional fund may not be
diverted for uses other than the purposes for which such taxes
were levied; that while the county may use a surplus in the
permanent improvement fund for the purchase of airport prop-
erty under Article 1269h, supra, general 'fundrevenues may
not be diverted by the commissioners' court for such purposes.
Very truly your3
ATTORNEY GENERAL OF TEXAS
By s/James D. Smullen
James D. Smullen
Assistant
JDS :js :wc
APPROVED MARCR 25, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion CommIttee By s/BWB Chairman