Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN 376 have for aon Wth wherein you request @in aitsunmoc that we quotr at,, length ~onodh Julian Eontgoniery, Fage 2 by the City of San Angelo in the transporting of paahengers for cozpensation and hire is such use*aa would entitle the City of San Acgelo to receive exen?t license plates without tke pay- ment of registration fees under the articles above referred to.” Artiole 067Sa-3, Vernon’s Annotated Civil’stat- utes, efter setting out the modus operandi of application for required registration of a notor vehicle ,under Artlole 6676a-2, provides es fOl.lOws: b 0 owners of motor vehicles, trailers and se&~tkilers, which are the pro@erty of, anQ used exoluslvely in the service of the United States Coverhxent, the state of Texas, or any County, City or School District thereof shall apply annually to regfster,all such ve- hicles, but shall not be require,d to pap the registration rees herein prescribea, provided .~.~thet erridavit Is made at the time of registra- .tlon by a person who has the proFer authority that such vehicles are the property of and used .oxalusively in the service of tho United St%t8S Governcant, the State of Texas, or County or City or School. District thereor, 8% the case may be . . . .” Artiole 6675a-Sas, provides that: *Before the Qellvery of license ‘plates to anyone engaged exclusively in the service of aad operating vehicles whioh are the property of.the United States Gomrment, or the State Or Texes~, or any cOu.ntp,’ or’ Cftie8 thereof, ouch application shall have the approval of the State Highway Departn;ent. . . .” Further, we deem It advisable at this polnt ~to ret out the following constitutional en4 statUtOI?y pro- visions tisofar as they deal with the subject of exenp- tions and possibly appear applicable to our problem. Article 8, Section 1, Constitution of Texas, pro- rldes; in part, as follows: . All property In this state. ‘. . other ;h&*municipal, shall be taxed. . . .= Eonombll~r Julian Eontgozery, fage 3 It ~111 be observed that Article 8, 5sction 1, would aeelp to exeapt from taxation all t&e property held by a nuniclpsl corporation; however, Artiole 11, Seation 9, providea: lTM property of c~uaties, cities and towns, owred and held oally for jmblio purpores, rash as publio bulldl~ga acd the altea there- ror. Fire engines and the furniture therecf, and all property used, or lntscded for ertin- guishing fires , Fubllc grounds and all other property devoted exolusively to the use end ‘benefit or the publla shall be exempt . . . frcfa taxation.w The’enuzeration oi these certain exempted articles in the section of the Conatltutlon quoted was designed to indicate thl aharaater ct thinm, and the wee to which they euat be appropriated a8 a condition precedent to erezptptlon. See Calveston %hart Co. va. CalvestOn,, 63 Ter. 14. There- tore, clearly there my be property omed by a mnicipal aor- paration subjeat to taxation. (Id) Betired Statutes, 1025, Artlole 7150, provides: .The rollowing promrty mhall be exenpt from tam.tion, to-wit i *All property, whether real or personal, belonging exoluelvely to this State, or any political eubdiviaicn thereof . . . .* Countlea, aities, and t&as are ~unioipal aorgor- ations. Constitution, Article 11. They are political sub- dlrlaions of the State. Id. Alto see Corp. of Tan Fellse de Austin va. state, ill Tex. 102, 229 ~3. x. 845,. City of Abilrne~va. State, ll3 3. i?. (2d) 632. Asaumlng that the Legislature tas the authority to enaot these statutory provisions greeting exeoptlona, it is perforce of the coaatitutfonal provision contained in Article a, Seotlon 2, -Hheretmder "The Legislature my, by gdceral laws, exeqt iron taxation public property used r0r publia purposes.* 3ereroro, shy consideration OS these statutes enaoted by the Legislature pursuant to the power granted it in Article 8, i”ection 8, should, if possible, Eonorable Julbn Xoatgonery, Page 4 be viewed Ln the light of the aonatitutional provisiona ret out above. Xn the cases wherein the courts of this %ate dealt with aituetiona whloh imolved or pertained to one or more or ths statutory and/or constitutional pzoviaions rsterred to above there has been corsiatent dffficulty snoouhtered la the proper eecertaimzert of r&at conatl- tutea *public property* aad further Mat ia, a’ *publio use.’ Id many oases it involves the ‘laborious problem o? border- ltie c0hstruCttoKl. The leading oese of corporation or sea 7elipe de Austin oa. State, supra, advanoes the rollming as a helpful aid to possible solution; Fhillipa, C. J., speak- ing r0r the suprexs courts “The test is not whether the property ir used ror governttntal purpoaea. That is riot the langr;age of the Constitution. This oourt has never aUoCtad that narrow lhitatlon and the weight of authority is o?poaed to it. ruch public property or muuiaipalltles exempt rrorn taxation has, and can have, no goverhzantal US@. The test 1s whether it is devoted ex- olusivs~ly to a pub110 use.* Citing Galoeation Wharf Co. ~5. Calvestion, 63 Tex. 14, wherein city owned stock in a wharr corporation waa. held exeqt iron taratlon under the,Constitu- tion. Chier Justice Fhlllips oozzeating on that oase said: *Xt would be dilfioult to rind anything vgovrrmental* in the pub110 use or a wbari.” The San ?elipe de Austin ~830 hold thet lend granted the zumiaipallty b? Xexlco and used by tkb lnhabi- tants thereof ea a ;ubllo R~~zx~nw is not taxable. .:ae Us0 the case or Daugherty vs. Thospaan, 71 Tar. 192. Rowever, it is our opinion ttat we woald aot be jUStAiled in looking to Article 11, Zeation 9, ot the Con- lititutlon nor Artlole 7153, Revised Civil Statutes, 1925, ror a.solutizm of the issue now aonrrontlng us. That aon- stitutlocal proviso and that statute aFeal: of the word “tax”. ‘Our situation involved not a *tax* but a Wrs&istra,tion* oT llioeme isa** in fhe case of atifns vs. State iiighvmp Ze- Eonorable Julian ~olltgoEery, Page 5 PrUent, 201 S. T;. 226, in uphold& the validity of the original act requlritig registration 0r riotor uehlcles, the court said: %e . . . oonclude that the stm of money rhich appellant is rewired to pa,y under the. laws, Acts 35th Le(glelature, oh. 190 and 270, as axe~dsd at Plrst Called:fEesslon, 35th Leg- islature, ah. 31, here involved is not,o tax . . ., but a license ree r4r the privil0go or operatlng his autombile on the pub110 high- ways or the atate.*’ In other words, the fee provided for in Artlale 667ba-1 et se@ I;artakw tiot or the nature or sn exaction .deslgned prlxarily ror revenue raising purposes: i.e., a tax, but Is a reasonable tipost levied and required to be *id as a oonditfon prsoedent to *the ~privilege oi using fhe highways of this Xtats.. Consequently, we reel that we axe not controlled in tha rendition or our opinion by any aonetitut:onal or statutory provisions ooaceming or ~mtalnlng to wtaxeam nor the oase8 eonstrulng them. In Louwin Y. .zoctdy by’ the Cozdssion or Appeals, 12s 9. Vi. (2d) 929, the court held that a person owning and opexatlhg xotor vehicles under oontractwith ths fEedera Oovernzent ror the pUrFOSfJ .0r transportlnr; the mall was rxexpt fror the payxect Of the ragiritrat~ion fess tax the tald vehicles under the term of the article, supra. Tha court so held because it found that the *practical eifesat- oi the inpoeitlon or such an exaotfon’ as a regfetration fee would be to ?increasa the oost to the Enlted States Or axocution Or Lts poxer and duty (:eotion 8, oh. 7, Art. 1) to.eotabllsh And operate post, offioes, eta. . . .* The situation berore t,:ecourt in the iouwein sass may be distinguished fro;;,our ract situation in this IDBonert In the Louwein case the service or activity in- ‘rolved, as the court 80 stated, was pursuant to a *duty or power* imposed upon the i?‘oderal Covernzent by exFresa pro- vision of the United states Constitution. 5?vhere in the laws of this State are we able to find any provision or prorislona wkinq It the "power or duty* or a sunicf:al 4or- poration to ostabllsh, operate, or wintaln a. oystu of inotor bussea - me caee or San Ant&f0 Independent School Distrlat -. Bonorable Julian Xontgomsrp. Fage 6 y, rater Works aoard or Trustees, 123 9. X. (2d) 661, annoume as r0110ws a well kmwh principal or law: *A rtunicipel corporation IS Invested with two klods ot powera or'functlons, ~overnzental and proprietary. Coveruzental fuactioos are ex- eroised in the ad&niotration ct the arraira which affect the publia generally, and are per- famed by virtue of povms coaterred upon the city as an agency or the. state. imprietary iuuctione pertain to buoinese arralra adzinis- tered iOr the special benefit Of the urban co=- Sunity mbraced within tha corporate boundaries.” The first potRer fa of a publia nature whereas the ’ ‘aeoond or proprietary,~tuhction partakes or the nature or a private power. Qt the exercise of its private powera, generally the eunicipal oorporation is treated 8s a private corporation or Individual and is ~aubjsct to alL t’ne obligations and is entitled to all the benefits or the private law.” gee ,. Ea~ufLlin tiunicipal corporation, Vol. 1, Ssa. 564,, at p. 905. In the ann&ated, note in 3.8. i. R.~ 1439at p. 144l;:tt la aptly said: . zhsre tim state steps down troa her 0 soterei&t~ and &&arks with individuals in buslnesi e&rgrisas, the saze considerations do not prevail. The state does not enEage 13 suoh enterprisee ror the benefit or the state as a state, but ror the banerft 0r individuals . l . .- Burthot in the wim note it ie observedr When an lncose or FrorltAe derived iron malolpally oxned property, not as an incident to its use as a rublie ag~noy, but fro& its use prinarlly and principally ‘for the purpose or producing revenue, it casuot be said to be de- voted to public use, and is, thererore subject to taxation’.* (Citing xiwerous oases) KS. are inclined to think mat Article 6673a-3, lupra, exempting publicly owned vehiolss fros regletration Eonorable Julian xontgosery, iwigs 7 fees ahoulb ba visaed In the llG,ht of the faoiliar prin- cipl, that a cmtutory gsnt or exacption is 20~0s pre- ~tmed, rzu8t be clearlp conferred ln.;lain snd unnzblguous term, and should bs strictly ccnstrued. The ;over of a rtate to levy fees or tar&s is an lnhererit attr:bGte of Its sor3reigaty esd “essetitial to the perpetuity of it8 llLst5.tutloa- ." This being true, the pertron v&o asserts l right to exer?tion sDeulC be :re