Untitled Texas Attorney General Opinion ( 1951 )

~%~ATTOMNEY GENE-I.
ov TEXAS
AunTrN 11. TExas
PRICE DANIEL
ATTORNEYGENERA,.
December 19, 1951
Hon. Jim W. Weatherby Opinion No. v-1381
District Attorney
Kerrville, Texas Re: Le,gality of using the
proceeds of a county
tax levied for airport
maintenance when the
county has relinquished
to a municipality its
interest in the airport
Dear Sir: in question.
Your request for an opinion of this office
reads in part as follows:
"In 1941 the City of Kerrville and
Kerr County, Texas acquired land and con-
structed an airport; thereafter, the op-
eration of the airport was under the City
of Kerrville.
"In 1943 Kerr County paid one-half
of the expense of additional hangars on
such airport.
"In September of1945, Kerr County
relinquished to the City of Kerrville all
right to participate in the upkeep, opera-
tion and control, with the understanding
that the City of Kerrville would be re-
sponsible thereafter for all expenses ln-
curred in the operation, upkeep, manage-
ment and control thereof, without any de-
mand against Kerr County.
"In 1950 the tax was levied For alr-
port maintenance.
"All taxes were paid without protest
and no claim, demand or protest was made
as to the payment of such five cent levy
for airport maintenance.
"The City of Kerrvllle requested
the County to contribute money for up-
keep expenses. The tax collected is 1x2
Han. Jim W. Weatherbg, page 2 (v-1.381)
a spealal fun4 set aside for al??port
uaintenance .
% view of &e rellnquismnt by
Kerr County of its Fights, and lacept;
anee by the City of Kerrville, it 1s
requested that you advise:
ll. Whether br not this money
could be used by Smr County as a eon-
trrtbmtlon tovard the upkeep maintenance
el rath airport,
w2, If the above question Is
answered in the negative, then whether
OF net such money could be rxpendsd by
SeFr county,
*3* If srteh money can be orpended
grEe” County, what may it be expended
.
“4. It such money can be eXpended
by Sum WWg, may it be used In fts
(iawml Fund.
3% pel?tUunt part of Seetie 9, Article
VT11 of the Texar Constltutisn la a8 followsr
a and no c@untT, city or town
shall &~*EOCO than twenty-five (25)
cente itw city
‘or -county po808, and
not exceeding fiSteon (15 p” oentr ir
roads and bridges, and not exceeding
fifteen (15) cents to par urora, On
the one hxmdrad dollars ra i!
uation, Ox-
cept fop the payment of debts 1nerzrreQ
prior tb the ad tlon of the Amendment
September 25, 1%; and for the erection
of publio bu%ldiage, streets, sewers,
waterworks and other permanent 1 rove-
ments, not to exceed twenty-five “p 25)
cents on the one hundred dollars valua-
tion, in any one year, and except as
1s in t&&s Conetitatl.on otherwise pro-
vided 0 D *’
Sectien 4 of Article 1269h, V,C.S,, pro-
ViU88:
Hon. Jim W. Weatherby, page 3 (V-1.381)
"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,
the governing body of any city or the
Commissioners' Court of any,county, fall-
ing within the terms hereof, may and 16
hereby empowered to levy and collect a
special tax not to exceed for any one
year five Cents on each One Hundred DOl-
lars for the purpose of improving, oper-
ating, maintaining and conducting any
Air Port which such city or county may
acquire under the provision of this Act,
and to provide all suitable structures,
and facilities therein. Providsd that
nothing in this Act shall be construed as
authorizing any city or county to exceed
the limita of indebtedness placed upon it
under the Constitution."
The order of th,e Commfesionersf Court of
Kerr County reflects that the tax was levied for *air-
port maintenzincen, which is ordinarily an expense pay-
able out of the county general fund. IiOWever, the
County Judge has advised that it was levied for the
specific purpose of improving the runways of the air-
port. ,In this event, the tax becomes a part of the
permanent improvement fund. In Attorney General's
Opinion O-6762 (1945) it is stated:
"From the information given in your
letter, we understand that a part of the
contemplated expenses in connection with
the airport is for the improvement of the
runways. It Is apparent that the runways
and the improvements thereto are in the
nature of permanent improvements. v8 think,
therefore, that the expenses for the im-
provement of the runways should be allocated
as a part of the total levy authorized by
the Constitution for permanent improvements,
but in no event should such allocation have
the effect of increasing the total county
levy for permanent Improvements beyond the
conatitutlonal limit for such purposes."
In view of the foregoing, and assuming the
Hon. Jim W. Weatherby, page 4 (v-1381)
tax Vas, in fact, levied for rUnVay iq3rOvetZMJntS,
it la our opinion that the money in question is a
part of the permanent improvement f~&l of the county.
In Capr,;ll v, Williama, 109 Tex. 155, 202
S.W. 504, 506, 50 (lqltr), it is stateds
'Going to the real gist of the nin
Issue bePore us, Section 9 of ArtMle 8 of
OCR state Constitution, Bupra, inhibits any
and all transfers of tax money from one to
another of the several classes of funds
therein authorized, and, aa a wqwnce, the
expen<Ure, Sor one purpose therein dsilned,
of tax money raised ostensibly for another
BUCh pIlrpose. The Immediate purpose in so
prescribing a separate maximum tax rate for
each of the classes of purposes there enu-
lssrated is, no boubt, to limit, accordingly,
the anount of taxes which may be raised from
the people, by taxation, declaredly for thOB8
several purposes or classes of puTposes, re-
spectively. But that Is not all. The ulti-
mate and practical and obvious derign and
purpose and legal effect is to Inhibit ex-
cessive expenditures for any such purpose
or clars of purposea. By necessary impli-
cation said provisione of section 9 of arti-
cle 8 WUP~ eerigwe, not merely to limit
the tax rate fa certain therein 4esignated
purposes, but to require that any and all
u8kej raised by taxatien for any such pur-
peso shall be applied, faithfully, to that
part&alar purpose, as needed therefor, and
not to any other purpose or Us0 vfhatroever.
Those constitutional provisions central, not
C&J the raising, but also the applioatlon,
& a21 such funds; and such is the legal
effect of articles 2242 and 7357, supra,
vhe~ p~operlj 00nam6a and applied.
l
'frue, ths Constitution does not say,
la so any VOP~B, that mtme~ raised bj a
oemt~, city, w tom, kq taxatioa fa ow
BUCh purpose ahsll never be expended for any
other purpoeo-not even for Ulether of the
five general classes of purposes defined
and approved in said section 9--but that, 've
Hon. Jim W. Weatherby,' page 5 (v-1381)
think, Is ita plain and certain mean-
ing and legal effect. The very deflni-
tlona of those several classes of pur-
poses, 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 expectation and intent that, a8
a matter of common honesty and fair deal-
ing, tax money taken from the people os-
teneibly for one such specified purpose
shall be expended, as needed, for that
purpose alone, as well as that the tax
rate for that particular claw, in any
one year& shall not exceed the preaaribed
maximum.
Baaed upon the assumption that the tax
wa6 levied Sor runway improvements, it la our opin-
ion that the only purpose for which this money may
be expended is for repairing and improving the air-
port.
The decisions of the Texas courts have re-
peatedly held that the commissioners' court la a
court of limited jurisdiction and has only such powers
aa are conferred upon It, either by express terme or
by necessary implication, by the Constitution and
statutes of thi8 State, Childress County v. State,
92 Z.W,2d ltm (1936) V on Rosenberg v.
.W. 508 (Tex. Civ. Appi 1915, error ref.);
D Rail; 280 s,W..289(Tex. Clv. App. 1925); Art.
11 Tex, Jur. 632, Countled, Sec. 95.
There is no law which authorizes a county
to relinquia$I the operation of an airport to a city.
The only reiatsd,proviblan at the time of thili pur-
ported'.raZlnqulshmant vaa that which authorized the
coIIpIas$onere' Court to lease a county-owned airport
to any city within the cs. Art. 1269h, V.C.S.,
There is no law authorizing a county to ContribUt8
money to a city for the operation of an airport. How-
ever, Article 46d-l&,.V.C.S,, authorizes the joint
operation of an airport by a county and city. This
act provides that a joint board shall be created and
prescribes the method of operatlon by such board.
There ie nothing in your request indicating that the
- .
Hon. Jim W. weatherby, page 6 (V-191)
PrOCOdure outlined in Article 464-14, V.C;.S., hae
been f olloved D
In view of the ioregolng, It is our opinion
that Article 46d-14 must be complied vlth before coun-
ty money may be expenrled in the operation OS a joint
airport.
SUMMARY
Money collectc)(l by a county for air-
mrt maintenance cannot be contributed to
the mafxitenance of an
Ueno~ rollected by a county through
the levy a? tax08 for the purpom of ia-
protins th* ruawa7r of tba couat7 @irport
is a put of t&a permanent llprorrunt
fUnd ati OIll b. r)eRt On1 fOP 6Uah WpeS..
Att'f @on. Opq O-6762 (I&); Carrel ! v.
lrslliar, log tot. 155,292 23. 504 /A``).
Yours very tmalp,
YEroE a!iAnEL
Attsraw Oweal
Arslstart