Untitled Texas Attorney General Opinion

. . - 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