Untitled Texas Attorney General Opinion ( 1956 )

June 28, 1956
Honorable Marion M. Lewis Opinion No. S-203
County Attorney
Goliad County Re: Whether the cost of
Goliad, Texas public scales ln-
stalled under Article
2372n, V.C.S., may be
paid out of the County
Permanent Improvement
Dear Sir: Fund.
You have requested an opinion on the following
question:
'Can Goliad County, upon compliance
with the necessary requirements, purchase
and install public platform tonnage scales,
as authorized by Art. 2372n, V.C.S., and
pay for them out of the Public Improvement
fund of said Goliad County?"
Section 9 of Article VIII of the Constitution of
Texas provides for a general purpose fund, a road and bridge
fund, a jury fund and a permanent improvement fund. commis-
sioners Court of Henderson County, et al v. Burke, et al,
262 S.W. 94 (Tex.Civ.App. 1924). The restriction upon the
use of these funds Is described in Attorney General's Opln-
ion V-808 (1949) where the cases of Ault v. Hill CountY
102 Tex. 335, 116 S.W. 359 and Carroll v. Willi.&s,
109 Tex. 155. 202 S.W. 504 'are correctls stated as
authority for the following. .
"The moneys accruing from taxes levied
and collected for each of the enumerated pur-
poses are Constitutional funds. The immediate
purpose of the above quoted provision of the
Constitution f3ec. 9, Art. ``27 is to limit
the amount of taxes that may be raised for the
several purposes. It is also Intended to re-
quire that any and all moneys raised by taxes
Hon. Marion M. Lewis, page #2. (S-203)
for a particular purpose shall be applied
to~that purpose and to no other."
TEmphasis added.)
Thexefore, expenditure of money from the Permanent
Improvement Fund of Goliad County for public platform scales,
as authorized by Article 2372n, Vernon's Civil Statutes, is
authorized if these scales can be properly classified as a
permanent improvement.
The only Texas case construing the words 'perman-
ent improvements" Is Holman, County Judge, et al~v.,Broadway
Improveme~ntCo., 300 S.W. 15 (Comm. App. 1927), Where sea-
walls were held to be within this term. Thus, the interpre-
tation of these words must be found in the decisions of the
courts.
In the leading case of Teaff v. Hewitt, 1 Oh. St.
511 (1853), Chief Justice Bartley laid down certain rules
which were in essence an attempt to define the requisites of
a "fixture" which would bring it within the common concepts
of an improvement on land. In determining whether a fixture
has become a part of the land, Chief Justice Bartley, spoke
as follows:
"The united application of the follow-
ing requisites will be found the safest crite-
rion of a fixture:
"(1) Actual annexation to the realty or
something appurtenant thereto. (2) Am-o-
priation to the use or purpose of that part
of the realty with which it is connected. (3)
The intention of the party making the annexa-
tion to make the article a permanent acces-
sion to the freehold - this intention being
inferred from the nature of the article affixed,
the relation and situation of ~the party making
the annexation, the structure and mode of an-
nexation, and the purpose or use for which
the annexation has been made."
This rule was followed in Texas by our Supreme
Court in Hutchins v. Masterson, 46 Tex. 551 (1.877) and ap-
plied as the determinative rule for construing the permanent
improvement section of the State Constitution by Attorney
General's Opinion V-808.
Because we do not have sufficient facts to give a
Hon. Marion M. Lewis, page #3.
categorical answer and because of the principal element of the
rule, the intention of the county, we can only point out the
elements which must exist before the purchase of the scales ,
can be made out of the permanent improvement fund.
The following must exist to authorize the purchase:
(1) The county must attach the scales to the land
or an appurtenance thereto with the.intent and In such way as
to affix them in a permanent manner; (2) the scales and the
land or appurtenance to which they are attached must have a
relative and corresponding use or purpose; (3)~the~county must
have the Intention of making the scales a permanent accession
to the land or appurtenance.
STJMMARY
The cost of public scales installed
under Article 2372n, V.C.S., may be paid
out of the County Permanent Improvement
Fund if they are attached to appropriate
land or an appurtenance thereto with the
intent and in such a manner as to make
them a permanent fixture.
Yours very truly,
APPROVED: JOHN BEN SHEPPERD
Attorney General of Texas
J. C. Davis, Jr.
County Affairs Division
W. V. Geppert Assistant Attorney General
Reviewer
J. Arthur Sandlin
Reviewer
L. W. Gray
Special Reviewer
Davis Grant
First Assistant
John Ben Shepperd
Attorney General
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