Untitled Texas Attorney General Opinion ( 1957 )

1957
Honorable
- . Jack Fields Opinion NO. ww-218
County Attorney
calhoun county Re : Whether or not the Commlssion-
Port ,Lavaca,Texas em I Court of Calhoun County
is subject to a requirement of
a city ordinance for the pay-
ment of fees, charges or assess-
ments for permits for the demo-
lition of the old buildings and
the constructionof a new build-
Dear Mr. Fields: ai.
You have requested the opinion of this Department on
the folloving question:
Whether or not the Commissioners‘Courtof
Calhoun County is subject to a requirementof a
city ordinance for the payment of fees, charges
or assessmentsfor permits for the demolition
of the old buildings and the constructionof a
new building.
In your very able brief that you submitted in connec-
tion with this question, you advise us that the facts are as
follows: Calhoun County is preparing to constructa new court-
house to be ‘locatedupon property purchased in fee some forty
years ago such property not being a part of any city-owned
square. b-le City of Port Lavaca desires to make periodic prog-
ress inspectionsof the courthouse constructionto enforce con-
formity with the City Building Code, pursuant to the police
powers of the municipal corporation. The city contends that it
is entitled to the payment of certain fees in exchange for the
issuance oi the Building and Inspectionpermits, such fees to
be used by the City to defray the cost of the progress lnspec-
tions. It is the position of Calhoun County that such charge
is in effect a tax against the county, In violation of the pro-
visions of Section 9, Article X,1of the Texas Constitution,
which provides:
“The properties of counties, cities, and towns
owned and held only for public purposes, D o 0 shali
be exempt from forced sale and from taxation, o . .*
Honorable Jack Fields, page 2 NW-218)
You further advise that the City of Port Lavaca
adopts the view that since their ordinancefor building permits
is levied against the contractor,rather than against the
County, and that since the permit fee is to be paid by the con-
tractor, the charge in this instance Is not actually to be as-
sessed against, nor paid by the County. This contention is in-
supportablein the light of the language found In the advertise-
ment for bids and In the proposed contractas follows:
"In determining the total amount of bid the
bidder shall not Include any costs of city fees
for permits for building but the same shall be
the responsibilityof the County if the same be
a legal charge against the County. O O .*
Article III, Section 48, Texas Constitution,states
as follows:
"The Legislature shall not have the right to
levy taxes or Impose burdens upon the people, ex-
cept to raise revenue sufficientfor the economi-
cal administrationof the government, O e *e
Article 1175 (81, Vernon's Civil Statutes,gives HOE
Rule cities power to provide for the mode and method for assess-
ing taxes against any person or corporation. A tharge or fee,
if for the purpose of raising revenue, Is a ;tax 9 and is levied
under the general taxing power. Harris Coun Y vO Sh ooerd
Tex. 291 S.W.2d 721, 723. Generally,where a ice isper
actedsolely for revenue purposes, and its payment gives the
right to carry on business without further conditions,such fee
is a "tax*. Brrpe undel County CommissionersvO @g&& 182
Md. 514, 34 A.2d 1% The courts of other jurisdictionsi&e
held that as an Incident to its power to enact valid inspection
laws, a State may Impose a reasonable fee to defray expenses of
inspection. Such fee is not a wtaxe and the fixing of the
amount of the fee is a legislative power, which may be delegated
when it seems advantageousto do so. manee v. Flann Y 176
Term. 125, 318 SeW.2d 441, 4% In jurisdictionswherErtie
matter has been considered,the courts are almost uniform in
holding that *taxes* are burdens of a pecuniarynature imposed
for defraying the cost of governmentalfunctions,whereas,
charges are sustainableas "fees- where they are imposed to de-
fray the cost of ; par;;;ular service rendered for a specific
&won a ithg 264 Mist, 736, 124 N,Y.S.2d 473p
trseo We are of the view that's permit fee which Is limited to
an amount which does not exceed the cost of the inspection,and
is assessed for the sole purpose of defraying the cost of such
inspectionby the City of Port Lavaca, is not a tax.
Honorable Jack Fields, page 3 (W-218)
We are primarily concernedwith the question of
whether a municipal corporationcan Impose any regulatoryre-
strictions
.. . upon
. county buildings.
_ .__It
_ is well establishedin
tnls state tnat a county 1s a subdlvlslonof the state, and
as such is a projectionof the state on a local scale. QQ-
dress Countv State, 127 Tex. 343, 92 S.W.2d 1011 (1936);
Jones v. AlexzAder9 122 Tex. 328, 59 S.W.2d 1080 (1933).It
has been argued, therefore,that a city cannot exercise police
power over the state nor wer the subdlvislonsthereof.
In 9 &m.Jw. 202, Ruildines, Section 6, it is said:
"The courts are not entirely agreed as to
the applicabilityof municipal building regula-
tions to buildings erected within the municipal
limits, by or under the authority of the State,
or by a county or other political subdivision
of the state. According to well-reasonedcases9
a county in erecting buildings within the limits
of a municipal corporationmust comply with such
proper building regulationsas the municipality
pursuant to its police power has Imposed. . 0 0
However a legislativegrant of police power to
a munic1pal corporationwill not be deemed a
cession of the legislature'sprerogativeto gov-
ern for itself the institutionsof the state
which may be located within such municipality,
unless it may be clearly gathered from the latter
act that such was the legislativeintent. D o *e
We are advised that the City of Port Lavaca operates
under a Home Rule charter. Article 1175 (341, Vernon's Civil
Statutes, in delegating certain police power to Home Rule cit-
ies, provides that such cities may enforce ordinancesnecessary
to "protect health, life and property. a 0 0w This provision
is an express legislativegrant, by the State, of police power
to all cities operatingunder a Home Rule charter to adopt and
enforce all ordinances,which are necessary for the purposes
specified. We are of the view that the duty to erect a county
courthouse rests upon the relation of the county to the State.
Its use concerns the public at large, for the whole state is
interested in the enforcementof the law in each county and the
county acts in the building of the courthouseas an agency of
the state. Police power is granted to the municipal corpora-
tion by virtue of Article 1175 (34) Vernon's Civil Statutes.
If the regulation imposed by the city to "protecthealth, life
and property . . .e is to be uniform in Its protection,we can
perceive of no good reason why the county should not be amen-
able to the reasonable police regulationswhich the city im-
poses in the interest of general welfare. Cook Countv v. Citv
1 -
-. -
I’,. . ,
Honorable Jack Fields, page 4 Ww-218)
nf Chl~ 311 Ill. 234, 142 N.E. 512 (1924). It can be ar-
gued that ihe state has committed the control of the county
buildings to the county, and that the county has preempted the
field of regulations to the exclusion of the city within whose
boundaries the buildings may be located. It is true that the
state may confer upon the commissioners'court of a county such
power of regulationand control as to exclude some of the broad
police jurisdictionwhich would normally lie in the city, In
this instance, however, the only power which the Legislature
has conferred upon the county is that set forth in Article 2351
(7) Vernon's Civil Statutes, wherein it states:
"Each commissionerscourt shall:
Rwlde and keep in repair courthouses,
jails"ini ill necessary public buildings. 0 0 *e
We are of the opinion that the above quoted statute
is so general as not to vest sole police jurisdictionwith re-
gard to regulation of county buildings with the county commis-
sioners' court. Even if the above provision is given the broad-
est application permitted by its language, it is not so explicit
as to infer that the county should have exclusive police juris-
diction of such buildings. While it is well settled that the
county is an agency of the state, it is likewise a creature of
~~~..~;~ vested with only such powers as conferredupon it by
0 It would be Incorrect to hold that the county is a
part of the state In the exercise of police power for reasonable
regulatory and inspection purposes in this instance. We, there-
fore, think it inescapable that police power delegated to the
city in this Instance,must be construed,as between the county
and the city, as a delegation of a power to the latter, which
the former is expected to observe. Cook County v. City of Ch&-
!aKQ, if!uus
Consequently,the problem resolves itself into a ques-
tion of whether the inspection here involved is a reasonable
regulation by the municipal corporationin the exercise of its
police powers. It is well establishedthat any regulatory mea-
sures exercised by a city by virtue of police power are exer-
cised only in pursuance of a legislativegrant of such police
power by the State. Brewer v. State9 113 Tex.0.R. 52.2,24 S.W.
2d 409; Port Worth and D.C. Rv. Co, v0 Amma 9 215 S.W.2d 407
(Tex.Civ.App.19489 error ref. n.r.e.1
Where the subject matter of a city ordinance is within
the police,power of a city, such city has broad discretion in
deciding what is necessary and roper. e
222 S,W.2d 646 (Tex.Civ.App.19f9, error ref,) It has been held'
- r
. . .
L a ..1
Honorable Jack Fields, page 5 W-218)
that the supervisionof the construction,maintenanceand re-
pair of buildingsfall within the scope of the police power
which is inherent in the State, and has been delegated to the
city. Newton v. Town of Hleh 9 282 S.W.2d 266, 278
(Tex.Clv.App.1955, error ref This power may be dele-
gated by the State to municipal corporationsand such authority
when delegated comes within the police power of a city. m
139 Tex. 600, 164 S.W.2d 516; U.&v of E&
225; 107 S.W.2d 872; also see McQulllin
9 2d Ed., Vol 3, pe 286, Section
1016.
Ordinancesenacted by a city requiring the payment of
fees for the issuance of permits and allowing inspection of con-
struction within the corporate limits of the city by the city
inspectors to insure compliancewith the City Building Code,
constitutea valid exercise of the police power of such city to
adopt measures to protect life and property, Ex
_8arte,
62 Tex.Cr.61,136 S.W. 61.
We conclude that the fee required by ordinance of the
City of Port Lsvaca, Texas, for the Issuance of a building per-
mit, enabling progress Inspection of county owned construction
is not a tax and does not violate Article III, Section 48 of the
Texas Constitution. Further, it is our view that such charge
is valid in the proper exercise by the city of its police power.
It must be remembered,of course9 that t.hereasonablenessof
any such regulatorymeasure, enacted under the police jurisdic-
tion of a municipal corporation,ultimately depends upon the
facts which exist in each particular case.
SUMMARY
The Commissioners'Court of Calhoun County Is
subject to a requirement of an ordinance of the City
of Port Lavaca, Texas, for the payment of fees,
charges or assessmentsfor permits for the demoli-
tion of old buildings and for the constructionof a
new building,where such fees constitute a reasonable
charge to defray the cost incurred by the City in
having progress inspectionsmade.
Yours very truly,
WILL WILSON
Attorney General of Texas
ByB.(/6!w,
B. H. Timmins, Jr.
BHT:pf:wb Assistant
Honorable Jack Fields, page 6 (WW-218)
Geo. P. Blackburn, Chairman
W. V. Geppert
J. C..Davls, Jr.
John Reeves
Wm. R. Hemphill
Lonny Zvlener
Ralph R. Rash
REVIRWED FOR TRE ATTORNEY GENERAL.
BY: James N. Ludlum