Untitled Texas Attorney General Opinion ( 1962 )

Mr. Jack N. Fant Opinion No. WV-1423
County Attorney
Room 201 Re: Whether certain lots and
City-County Building the permanen.timprovemen~ts
El PL~SO,Texas and per;onul propertie.-
thereon are exempt from
ad valorem taxe.;as b)pui3-
Dear Mr. Fant: lit library.
You have asked the opinion of the Attorney General as to
whether certain town lots in the City of El Paso, Tex-i~,
.ind
the permanent improvements thereon together 1~3ththe personal
properties therein are exempt from Texas ad valorem taxeu.
Such exemption is claimed by the owner of theiieproperties
on the basis that the properties are a public library and exempt
from ad v-aloremtaxes by Article 7150, subd. 8, Vernon's Civil
Statute; which is as follows:
"The following property shall be
exempt from taxation, to-wit:
8.' Public libraries. -- 9.11public
libraries and personal property be-
longing to the ;:cme."
PERTINENT FhCTS
A. The Real Estate and Improvements
The real estate in yue.,tionis lots 17, 18, 19 and 20 in
block 69 of Franklin Heights Addition to the City of El Paso,
Texzs. This realty, in the aggregate, fronts 100 feet on Mon-
tana Street and is bordered on one side by Brown Street to a
depth of 120 feet. The property is zoned a3 apartment. Im-
provement, consist of a -t:'io+tory
building (constructetia.ja
private dwelling) with a full basement; the building is ap-
proximately 56 feet by 49 feet in size. On the rear portion
of the tract of land is a two-story combination garage and
servant 1j quarters. The improvements are approximately fifty
years old and are not modern, though they have been remodeled
to some extent to meet the needs of the present owner and user.
Mr. Jack N. Fant, page 2 Opinion No. W-1423
The market value of the realty and permanent improvements
has been appraised at $42,200.
This property is at a location which is conveniently ac-
cessible to the public as a library.
B. Ownership of the Properties under Consideration
Title to the realty and permanent improvements is vested
in fee in the El Paso County Medical Society, a private Texas
corporation which is now subject to the Texas Non-Profit Cor-
poration Act. The purpose clause of the charter of this cor-
poration is as follows:
"The purposes of this corporation
shall be to associate in a single body
the duly licensed and regular practi-
tioners of medicine in El Paso County,
Texas, for the purpose of promoting
medical knowledge, elevating the stan-
dard of medical education, encouraging
free intercourse among its members, and
inculcating principles of professional
ethics orotectinn its members against
impositions, establishing a library for
the use of its members, dispensing char-
ity among the worthy sick, and assisting
in upholding and enforcing the laws en-
acted to protect the public against any
who may offer to practice medicine in
violation of the laws of the State of
Texas." (Underscoring added).
The realty and improvements have vested under the terms
of the will of S. T. Turner, deceased, who devised the property
to the El Paso County Medical Society, its successor or succes-
sors,
I,
. . . to use as a club house, li-
brary or any other useful purpose to
which they may from time to time de-
sire to appropriate it, to be known
as the Turner Home of the El Paso
County Medical Society."
c. Facts Pertinent to the Operation of the Property as a
Public Library
Mr. Jack N. Fant, page 3 Opinion No. NW-1423
Tne following more pertnent and controlling facts have
been furnished by you:
"1. Floor Space 7248 Square Feet.
4 rooms and hall on each floor.
"1st floor: Library Space 48 ft
by 174 ft. Hall 52 ft by 12 ft.
Reading Room 25 ft x 17 ft.
"Kitchen and two pantries 27 ft
by 17 ft. Powder room and storage
room 4 ft by 17 ft.
"2d floor: Assembly room 52 ft
by 17+ ft. Hall 52 ft by 12 ft.
Ladies Lounge, bath and closet 25
ft by 17 ft. Storage rooms 27 ft
by 17 ft.
"Rasement: Furnace room. Storage
room for books and periodicals 884 Sq.
ft. Hall 624 Sq. ft. Storage rooms
used by the City Museum 52 ft by 17+
ft.
"2. About 1945 sq ft used for li-
brary. 1265 sq ft for material and
reading room. 680 sq~ft used for star,-
age. Librarian's office is in the li-
brary proper. About 2,000 sq. ft used
by City Museum for storage. (This is
donated by the Society.) Kitchen and
pantries, furnace room and halls.
“3. The El Paso County Medical
Society meet once a month fr,om6 p.m.
to 9 p.m. The Ladies Auxiliary meet
during the winter months from 10 a.m.
to 12~30 p.m.
“4. The library is used by students
from Texas Western College, the general
public and doctors. The public and stu-
dents use it more than the doctors. It
is opened from 1 to 5 p.m. Monday thru
Friday.
Mr. Jack N. Fant, page 4 Opinion No. NW-1423
“5* The library has never been closed
to the general public since it was origi-
nally opened over 10 years ago.
“6 . The librarian does not hold a
degree in library science. The El Paso
County Medical Society pays her $150.00
monthly. Hours are from 1 to 5 p.m.
Monday thru Friday. The librarian takes
care of the telephone for the Medical
Society, keeps up with the membership
and dues. This would require about one
hour an afternoon,
“7. The library is located on a
corner lot and the grounds are used by
the puclic when needed.
“8
D Four years ago, all of the out-
of-date books were discarded and they
have been replaced with up-to-date later
editions. A few of the old books were
kept. At the present time, about 20% of
the books are out of date except for his-
torical purposes and most of these have
definite historical value. The periodi-
cals are kept up-to-date with no missing
issues. When the periodicals are bound,
if there are any missing issues, they
are replaced to make the bound volumes
complete."
9. You state that the usual library
indices and cross references are avail-
able and that the books are catalogued.
10. You state that the property is
"centrally located in an ideally acces-
sible location".
"11. Several people besides the
doctors come in every afternoon be-
tween 1 and 5 and use the library
material. The library is used prin-
cipally by students in olurlocal col-
lege and high schools. Some other lay-
man use it. The doctors themselves use
it least of all. It is very difficult
Mr. Jack N. Fant, page 5 Opinion No. WW-1423
to say what percentage of the library
material has been used by anyone other
than doctors within the last year. It
would probably be about 25% (doctors'
use) but this is a rough estimate.
"12. The library has been adver-
tised at our local college, Texas Wes-
tern College. The Chairman of the
Biological Sciences Department there
has made this known to the students
by verbal announcements and by a notice
on the bulletin. The Public Library
also sends many students to our medical
library. Only the Public Library is
advertised in the Yellow Pages of the
Telephone Directory."
II.
OUR OPINION BASED ON THE FOREGOING FACTS
Our opinion is that neither the realty, permanent im-
provements nor personal properties under consideration are
exempt from State ad valorem taxes by reason of being a pub-
lic library.
The pertinent constitutional provision which authorizes
exemption of the kind of properties under consideration is
Article VIII, Section 2. The relevant portion of this article
reads as follows:
II the legislature may, by
generai iaws, exempt from taxation
public property,,usedfor public
purposes; . . .
.Article7150, subd. 8, V.C.S. effects the permissive
exemption authorized by Art. VIII, Sec. 2 (supra) as to pub-
lic libraries in the following language:
"The following property shall
be exempt from taxation, to-wit:
6.' Public
* libraries. -- All
public libraries and personal pro-
perty belonging to the same."
Mr. Jack N. Fant, page 6 Opinion No. WW-1423
Tne constitutional provision requires that a public li-
brary to be exempt must be, first, "public property", and
second, that the public library properties must be "used for
public purposes".
1.
We first consider whether the realty, the permanent im-
provements thereon and the personal properties comprising the
library and its furnishings are "public property" within
the meaning of Ar'ticleVIII, Sec. 2 of the Constitution. "'he
early case of Saint Edwards College v. Morris, Tax Collector,
82 Tex. 1, 17 S.W. 512 (1891) considered that portion of Art.
VIII, Sec. 2 of the Constitution which we now have under con-
sideration (which was in the identical language as now). With
reference to the nature of property as being "public property
used for public purposes" the Court stated:
"It can not be claimed that the
property of appellant is public pro-
perty used for public purposes, for
to give it such character it is be-
lieved that the ownership should be
in the State or some of its munici-
pal subdivisions, and it may be that
its use would have to be not onl?
under their control but for a pur-
pose for which the State or such muni-
cipal subdivisions are authorized to
use property held by them for the
benefit of the public." (Underscoring added).
See also Texas Turnpike Company v. Dallas Count& 153 Tex. 474,
271 s.w.2d 400 (1954).
We are aware of the statements of our Suprem? :ourt with
reference to this Art. VIII, Sec. 2 of the Constitution made in
erty, Tax Collector v. Thompson, 71 Tex. 192 9 S.W. 99
) wherein the Court stated
"That section of t:~ie
Constitution
seems to apply to property owned by
persons or corporations in private
right, but which, from the use to
which it is applied, is, in a quali-
fied sense, deemed public property."
Mr. Jack N. Fant, page 7 Opinion No. WW-1423
Later in that same case the Court reitterated this statement
in the following language:
“As before said, section 2, art.
8, of the constitution, gave to the
legislature the power to exempt
property held in private ownership,
but used for purposes which give to
it a public character.”
This latter quotation from Daugherty v. Thompson is
quoted in Lower Colorado River Authority v. Chemical Bank and
Trust Co., 144 Tex. 326, 190 S.W.2d 48 (1945) (at page 51).
We reconcile these apparently contradictory statements
by our Supreme Court in the following manner. The Daugherty
case (supra) considered the taxability of school lands belong-
ing to Frio County which were under a ten-year lease to an in-
dividual. The quoted statements from that case were made with
reference to ownership of the lands by Frio County. In that
respect the lands considered were owned by Frio County in its
own private right. While these lands were public in that they
were owned by the county, a political subdivision of the State,
they also were private in that they were bne property of Frio
a public corporation. The case of Coyle v. Gray, 7 Houst.
E%'Atl. 72'8 (court of Errors and Appeals of Delaware L-law
co;rt of last resortJ 1884) makes this distinction clear where-
in the Court said:
,1
. . . The inhabitants of a city,
who are in fact the corporators under
a charter creating a municipality, are
a portion of that general public which
constitute a state. And they are also
that particular public which consti-
tute a municipality. The municipality
may hold property in which all the in-
habitants of a state or of a county may
be said to have an interest in some
respect, but not as owners or proprie-
tars. And it may also hold property
in which the inhabitants of the muni-
cipality alone may properly be said
to have an interest. Both classes of
property are public, -- the one, as
to the people of the whole st,ateor
county; the other, more particularly,
as to the inhabitants of the munici-
pality . It is only in this sense
Mr. Jack N. Fant, page 8 Opinion No. WW-1423
that the words 'public' and 'private'
can with propriety be applied to such
property, when held by a municipality.
Although the property held for the
municipality is in fact public, as
common to all the inhabitants of a
city, it nevertheless may justly be
said to be private property, as being
such property as is exempt from being
taken or applied to any other public
use by the state, or by authority of
the state, without compensation being
made." (at P. 733).
We believe the same interpretation was meant in Lower
Colorado River Authority v. Chemical Bank and Trust Co.,
(supra).
Our State Constitution nowhere provides for the exemption
from ad valorem taxes of property which is privately owned
although used for public purposes. The Legislature could not
by Art. 7150, subd. 8, (supra) convert private property used
as a publlc library into public property. In Texas Turnpike
Company v. Dallas County (supra) the Court stated:
If
. . . Public cwnership, for tax-
exemption purposes, must grow out of
the facts; it is a legal status, based
on facts, that may not be created or
conferred by mere legislative, or even
contractual, declaration. , . .'
(at p. 402).
The following quotation from Davis v. City of Atlanta, 206 Ga.
652, 58 S.E.2d 140 (Ga.Sup. 1950) very clearly states this
principle.
"Under Board of Trustees v. City
of Atlanta, 113 Ga. 883, 39 S.E. 394
154 L.R.A. 806J, the fact that pri-
vately owned property is devoted ex-
clusively to a public use does not
thereby make it public property so
as to exempt it from municipal ad val-
orem taxation. Indeed, not even leg-
islative enactment can make it such
nor so exempt it. In that case the
court held unconstitutional an act of
the legislature which declared that
. . .
Mr. Jack N. Pant, page 9 Opinion No. WW-1423
armory property shall be public pro-
perty and exempt from municipal and
other taxation.
"In that case the court said:
'It is claimed . . . the property is
used exclusively for public purposes
in maintaining the military company
known as the Gate City Guard, which
is a part of the regular volunteer
milltary.forces of the state. That
private property is used exclusively
for public purposes does not change
the nature of the property, or the
title thereto, so as to convert it
into public property. . . . Private
property cannot be converted into
public property by the simple de-
claration of the general assembly;
and especially is this true when
the purpose of the declaration is
to relieve private property from a
burden which the constitution says
in unmistakable terms shall be borne
by it for the benefit of the public."'
See also Attorney General Opinion No. O-1621 (1939).
We believe the law Is settled to the effect that real
estate and the permanent improvements thereon and personal
property therein to which neither the State nor any of its
political subdlvisions nor agencies nor representatives have
any title, nor right of control under any form of grant vest-
ing In any such public entity a right of control over said
property, can be "public property" within the meaning of Art.
VIII, Sec. 2 of our State Constitution. As to the library
properties under consideration, the public has only access,
and that at the sufferance of the El Paso County Medical So-
ciety as its invitees. We have fcund no authority, in Texas
or in any other jurisdiction of the:United States, which would
authorize property to which the public has this type of access
right only to be qualified as being public property for pur-
poses of being exempt from taxation.
The properties in question must be "used for public
purposes" as provided in Art. VIII, Sec. 2 of the Constitu-
tion (supra).
Mr. Jack N. Fant, page 10 Opinion No. WW-1423
As to whet.hera particular usage is a public purpose-
within contemplation of the above constitutional provision
must be determined in each l.ncldenceuwon the warticular
facts. In Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d
1033 (1934) the Court stated:
"In discussing what is a public
purpose, McQulllin on Municipal
Corporations (2d Ed.) vol. 6, p. 292,
sec. 2532, says: 'What is a public
purpose cannot be answered by any
precise definition further than to
state that if an object is beneficial
to the inhabitants and directly con-
nected with the local government it
will be considered a public purpose.'"
Again, in the case of A & M Consolidated Independent School
District v. City of Bryan, 143 Tex. 348 184 S.W.2d 914 with
reference to publicly owned property being used for a public
purpose, the Court stated:
"The property in question appears
to be used for a public purpose. It
is used primarily for the comfort and
welfare of the people, and all the pub-
lic has the right to use it under rea-
sonable and uniform regulations."
(at p. 916).
However, the Courts have also well established what is
not a public purpose. The following two authorities are typi-
cal:
"It Is not all things which an-
swer a public need or fill a public
want that it is within the authority
of the State to furnish for the people's
use or support at the public expense."
Waples et al v. Marrast, 108 Tex. 5,
184 S.W. 180 (1916).
"It is well settled that there
must be a general public --
right to
a definite use of the property, as
distinguished from a use by a pri-
vate individual or corporation which
may prove beneficial or profitable
. . *
Mr. Jack N. Fant,,page 11 Opinion No. W-1423
to some portion of the public,"
(emwhasis added'1. RIver & Rail Termi-
na,ls,TV. Louisiana 'Ry. & Nav. C0.9
71 L 223 5 0. 7 (La.Sup.
:930)aiP. 340;.
The specific limited exemptions stated in Art. 7150 V.C.S.
make certain the proposition that not the use only of properties
which promote the welfare of the public Is a public purpose
which will exempt those propertles from ad valorem taxes. The
following usages of portions of the land and improvements under
consideration do not comport with the use of property for a
public library: (1) the two-story combination garage and
servants quarters, (2) about one-fifth (l/5) of the time of
the librarian spent in taking care of the telephone for the
Medical Society and keeping up with the Society's membership
and dues, (3) space used for storage by the City Museum and
(4) meetings by the El Paso County Medical Society and its
Ladies' Auxiliary;
Without a doubt; the library facilities furnished arc
of benefit to the public; but the law is ``11 se~ttledthat
not all benefits to the public are recognized in law as being
for public pu.rposesin considering the properties a3 being
tax exempt. Our opinion is that the El Paso County Medical
Society may not voluntarily and gratuitously ?,rdin it:>own
private capacity make availnblc to the public the bencflt;
of it; library and thereby zlnkcthe librc?ryexeinptfrom zcj
valorem taxes.
The properties owned by the El Paso County
:$edicalSociety furnished by it voluntarily to
the public as a public library, but to which
the public has access only at the sufferance
of the Society as its invitees, are not exempt
from ad valorem taxes as a public library un-
der Art. 7150, subd. 8, V.C.S. as "public pro-
perty used for public purposes" within contem-
plation of Art. VIII, sec. 2 of the Texas Con-
stitution.
Yours very truly,
, ,
Mr. Jack N. Fant, page 12 Opinion No. WW-1423
BY
APPROVED:
OPINION COIXMITTEE
Morgan Nesbitt, Chairman
L. P. Lollar
Robert A. Rowland
FXVIEWED FOR THE .ATTORNEYGENERAL
BY: Leonard Passmore