Untitled Texas Attorney General Opinion ( 1950 )

THEA
July 3, 1950
Hon. B. F. McKee Opinion No. V-1077.
County Auditor
Hidalgo County Re: Constitutionality of statute
Edinburg, Texas requiring favorable vote of
majority of voting qualified
property taxpaying voters in
county prior to levy, assess-
ment and collection of coun-
ty ad valorem tax for Farm
to Market Roads or for Flood
Dear Sir: Control.
You have requested the opinion of this office as to the
validity of those sections1 of H.B. 107, ch. 464, Acts 51st Leg,,
R.S. 1949, which require a favorable vote of a majority of the qual-
ified property taxpaying voters of the county, voting at an election
called for that purpose, before the county may levy the new tax for
Farm to Market Roads or for Flood Control purposes as author-
ized by the amendment to Article VIII, Section l-a of the Constitu-
tion of Texas. H.B. 107 is presently carried as Article 7048a. V.
C.S.
H.B. 107 was ‘enacted in pursuance to and in execution
of the provisions of ~the constitutional amendment proposed by H.
J.R. 24, which was adopted by vote of the people in the 1948 Gen-
eral Election. The pertinent provisions of H.J.R. No. 24 are the
following:
“Section 1. That Section l-a of Article VIII of
the Constitution be amended so as to be and read as
follows:
W‘Section l-a. From and after January 1, 1951,
no State ad valorem tax shall be levied upon any prop-
erty within this State for general revenue purposes.
From and after January 1, 1951, the several counties
of the State are authorized to levy ad valorem taxes
upon all property within their respective boundaries
for county purposes, except the first Three Thousand
1 Sets. 7, 8, and 9.
Hon. B. F. McKee, Page 2 (V-1077)
Dollars ($3,000) value of residential homesteads, not
to exceed thirty cents (3OC) on each One Hundred Dol-
lars ($100) valuation, in addition to all other ad valo-
rem taxes authorized by the Constitution of this State,
provided the revenue derived therefrom shall be used
for construction and maintenance of Farm to Market
Roads or for Flood Control, except as herein other-
wise provided.”
In view of the fact that the constitutional amendment
does not make the imposition of the tax contingent on an affirma-
tive vote of a majority of the qualified property taxpaying voters
of the county, you ask whether the Legislature could impose this
requirement.
At the outset we should examine the general purpose
and effect of this constitutional provision together with applicable
rules of construction.
Prior to the adoption of this constitutional amendment,
county ad valorem taxes for the purposes enumerated could not be
levied in excess of the maximum rates fixed by Section 9, Article
VIII of the Texas Constitution. The effect of the amendment was
to lift these maximum limits-to the extent of authorizing counties
to levy.an additional ad valorem tax not to exceed 30 cents on each
$100.00 valuation for the limited purposes of “construction and
maintenance of Farm to Market Roads or for Flood Control.”
Since the constitutional amendment does not provide
the method and means by which the counties shall determine the
time, rate, and purpose (as between Farm to Market Roads and
Flood Control) of the tax, or how it shall be levied and collected,
it was within the power and duty of the Legislature to provide such
method and means. Tex. Const. Art. VIII, Sec. 3.and Art. III, Sec.
42. See Stratton v. Commissioners’ Court of Kinney County, 137
S.W. 1176, 1117 (T C’ A 1911 f )’ Stevenson v.
Blake, 131 Tex. lO~‘ll?S.W% 525,‘5ezf;rT)l9ie8): ’
By H.B. 107 the Legislature provided a method which
gives both the Commissioners’ Court and the property taxpaying
voters a part in determining if, when, why and for how much the
newly authorized tax shall be levied. Such method has been pro-
Hon. B. F. McKee, Page 3 (V-1077)
vided by the Legislature for the levy of many local taxes. 2
If the vote requirement of H.B. 107 were subject to two
interpretations of legislative intent -- (1) as an unconstitutional at-
tempt to limit the authority of the county to levy the tax and (2) as
a valid step in the procedure or method for levy of the tax --, we
would be compelled to follow the latter interpretation. As stated
in Sutherland (3rd Ed.) on Statutory Construction:
“It is constantly asserted by the courts that every
presumption favors the validity of an act of the Legis-
lature and that all doubts, must be resolved in support
of the act.” (Vol. 2, Sec. 4509, p. 326.)
This rule is applicable to tax statutes the same as oth-
er stiltutes.
“This rule that when a statute is attacked as un-
constitutional, it is the duty of the courts, when the
statute is subject to different constructions, to adopt
such construction as will make the statute constitution-
al if the language will reasonably permit, is applied to
tax statutes time and time again the same as to other
statutes.” (Cooley on Taxation (4th Ed. 1924) Vol. 2,
Sec. 509, p. 1133.)
’ Article 6078, V.C.S., provides that no tax for the purchase and
improvement of lands for use as county parks may be levied “until
the proposition is submitted to and ratified by the property taxpay-
ing voters of the county at a general or special election held for
that purpose . . . /%ndf two-thirds majority of the property taxpay-
ing voters . . . de&rriiine in favor of said tax.” Articles 4436a-2
and 4436a-3 authorize the Commissioners’ Courts in certain coun-
ties to levy a tax in stated amounts for creating a county health
unit if the proposition to levy said tax is approved by a majority
of thrproperty taxpaying voters at an election called for that pur-
pose. Articles 4478, 4494c, 4494g, and 4437a, dealing with county
hospitals, all require that the voters of the county shall determine
whether a tax for establishing and maintaining a hospital will be
imposed. Articles 2352a. 2352b. and 2352~ provide for the levy of
a tax in a stated amount for the purpose of advertising the county
and its county seat providing that a majority of the qualified taxpay-
ing voters of the county shall, by a majority vote, authorize the
Commissioners’ Court to levy the tax. (These articles are simply
cited as illustrative. No opinion is expressed as to their constitu-
tionality.)
Hon. B. F. McKee, Page 4 (V-1077)
However, in our opinion, the situation before us requires
no resort to statutory construction. Here we have a statute which
from the caption to the emergency clause clearly reveals that the
Legislature intended to include the vote of the taxpaying citizens
as part of the method for levying the tax. The constitutional amend-
ment does not prohibit such procedure.3 The Constitution does not
clothe the Commissioners’ Courts with any general power to levy
taxes except as provided by the Legislature. Most functions of the
Commissioners’ Courts in the levying of ad valorem taxes are stat-
utory, and in the absence of a constitutional provision to the con-
trary, the Legislature is authorized to pass statutes regulating the
levying and assessing of county ad valorem taxes. Stevenson v.
Blake, 131 Tex. 103, 113 S.W.Zd 525, 527 (1938). -It is noteworthy
-with few exceptions, the specific powers which have been con-
ferred on Commissioners’ Courts with regard to levying, assess-
ing and collecting county ad valorem taxes have been conferred on
said courts by statutes and not by the Constitution. The rule is that
Commissioners’ Courts have no general blanket authority over coun-
ty business, but only such powers as are expressly given them by
the Constitution and statutes. Canales v. Laughlin, i47 Tex. 169;
214 S.W.Zd 451, 453 (1948).
The constitutional amendment being silent on the sub-
ject, the House Committee on State Affairs, .51st Legislature, ask-
ed this office if the amendment was self-enacting or if it required
an enabling act such as H.B. 107 to provide a method for levy of
the tax. Our reply by Opinion No. V-797, March 29, 1949, was in
part as follows:
“Passing to a consideration of the remainder of
H.J.R. 24, we may ho,ld it .self-executing ‘if it supplies
a sufficient rule by means of which the right given may
3 “This Court has repeatedly held that no Act of the Legislature
will be declared unconstitutional unless some provision of the Con-
stitution can be cited which clearly shows that the Act is invalid.
Texas National Guard Armory Board v. k&Craw, 132 Tex. 613, 126
. a 42V; Hcirris qount)r y. Stewart, 91 Tex. 133, 41 S.W. 650;
Brown v. Cityci;ifCialveston, 9TTex. 1, 75 S.W. 488, 9 Tex. Jur.,
pp. 4f I, 478, sec. 54.
“No provision of the Constitution has been pointed out which pro-
hibits the enactment of the Act under consideration, . ~ .” The State
of Texas ex rel. Carl Rector v. McClelland, Texas Supreme7 ourt
Reporter, Vol. 19, No. 9, p. 123; 224 S .W . 2 d 706 (1949).
Hon. B. F. McKee, Page 5 (V-1077)
be enjoyed and protected or the duty imposed may be
enforced; and it is not self-executing when it merely *
indicates principles, without laying down rules by which
these principks may be given the force of law.’
“This excerpt from Cooley on Constitutional Lim-
itations was quoted by the Supreme Court of Texas in
Mitchell County v. City National Bank, 91 Tex. 361, 371,
. D 0 083, when the court was determining wheth-
er or not th; provisions of Section 7 of Article XI of
the Texas Constitution were self-executing; i.e., said
the court, whether ‘the source of authority for making
the levy and collecting the tax is the Constitution and
not the act of the Legislature.’
u
. 0 . .
“The Court reached the conclusion that the pro-
visions of Section 7 of Article XI were not self-execut-
ing in the following analysis:
“ ‘The only parts of the constitution which bear
upon this subject are section 9 of article 8, and sec-
tions 2 and 7 of article 11. Section 9 confers no author-
ity upon any offic,er of a city or county to levy a tax for
any purpose, but by the language, “No county, city or
town shall levy more than one-half of said state tax . . ~
and for the erection of public buildings not to exceed
fifty cents on the one hundred dollars in any one year,”
places a prohibition or limitation upon the power of the
legislature to authorize counties to impose taxes for
such purposes. Section 2 of article 11 expressly re-
quires the enactment of a general law to carry its man-
dates into effect; and section 7 of the same article con-
tains no grant of authority to levy a tax nor designation
of any official by whom the tax specified is to be levied
and collected, but is, in effect, a limitation upon the
power of the legislature to authorize such corporations
to create debts. In the sense that all laws in conflict
with these prohibitions are void, section 9 of article 8
and section 7 of article 11 are self-executing; but, in
so far as anything is required to be done to carry them
into effect, they are not so, because they prescribe no
rules by which any act could be done in the enforcement
of their requirements. ’
‘*Although the provisions of section 7 of Article
XI expressly required future action by the Legislature
(the vote of the taxpayer, and the amount of the tax,
Hon. B. F, McKee, Page 6 (V-1077)
were to be ascertained ‘as may be provided by law’),
we think that the language of the court above quoted
precludes our holding that the last part of H.J.R. 24
is self-executing. There is no ‘designation of any of-
ficial by whom the tax specified is to be levied and
collected;’ nor is ‘anything . . . required to be done
to carry . . . (it) into effect . . . because . . . no rules
. D . (are prescribed by) which any act could be done
in the enforcement of their requirements.’ The Mitch-
ell case at least casts enough doubt on the matter to
fully justify the enactment of enabling legislation.
“Even if the main provi$ions of H.J.R. 24 are
self-executing, legislation could still be deemed de-
sirable for the purpose of ‘providing convenient rem-
edies for the protection of the right secured, or of
regulating the claim of the right so that its exact lim-
its may be known and understood; but all such legisla-
tion must be subordinate to the constitutional provi-
sion, and in furtherance of its purposes, and must not
in any particular attempt to narrow or embarrass it.’
Cooley Constitutional Limitations, 8th Ed., Vol. 1, pp.
170, 171. The power of the Legislature to implement
the present amendment is indisputable because, should
it be regarded as self-executing, the machinery for its
enforcement could only be found in existing legislation
whic.h is, of course, in the main, subject to repeal or
amendment at the pleasure of the presently constituted
legislative body.”
In Section 13 of H.B. 107, the Legislature found the en-
abling act necessary in the following words:
“The fact that House Joint Resolution No. 24,
Acts, Fiftieth Legislature, has been adopted by the
people of Texas at the General Election held in this
State on the first Tuesday in November, 1948, and an
enabling act is necessary to authorize the levy, assess-
ment and collection of taxes provided for therein by
the several counties in this State, create an emergency,
and an imperative necessity that the Constitutional Rule
requiring bills to be read on three several days in each
House be suspended, 0. a W
A full reading of the caption and body of the bill leaves
no doubt that the requirement for approval by a majority of the prop-
erty taxpaying voters was intended as an essential part of the meth-
od for levy of the tax rather than a restriction on the authority of
the county. Someone had to be authorized by the Legislature to act
Hon. B. F. McKee, Page 7 (V-1077)
on behalf of the county to determine (1) if any part of the newly au-
thorized tax would be levied; (2) if so, how much and when; and, (3)
whether for Farm to Market Roads, Flood Control, or both. H.B.
107 authorizes the Commissioners’ Court by majority vote or up-
on petition of ten per cent of the qualified property taxpaying voters
to submit these questions to the voters and levy the tax if and as
the majority of the voters decide.
This nrocedure. whether authorized bv constitutional
provision or statute, has been held to be part of the levy of the tax.
Crabb v. Cel,este Ind. School D,ist., 105 Tex. 195, 146 S.W. 528 (1912);
San Saba County v. McGraw, 130 Tex. 54, 108 S.W.Zd 200 (1937).
In the Crabb case the Supreme Court of Texas held that,an indenend-
ent schooldistrict had nb authority to levy and collect a tax on prop-
erty annexed after the tax had been voted for the reason that Section ‘``
3 of Article VII provided a “mode of levying” which required a vote
of “two-thirds of the qualified property taxpaying voters of the dis- _
trict, voting at an election held for that purpose.” The court point-
ed out that in those cases which were cited as authority for uphold-
ing the levy the right of the property owner to participate in the
proceeding with relation to the levy of the tax on his property was
fixed by statute and not by the Constitution. The-court said;
“Here lies the important distinction, If we had
no constitutional provision to grapple with, we would
be constrained to hold that, where the legislative act
gave the,property owner the right to participate in the
proceeding to determine whether or not the tax shoiiI?l
be levied, another legislative act, authoriamg ,an ex-
tension of the district where the tax had been voted,
would subject the property within the extension sub-
ject to the tax, notwithstanding the non-participation
of the property owner in the levy of the tax. This, how-
ever, is not the status of the case at bar; for here the
right to participate in the levy of the tax is given the
resident property owner by the Constitution, and the
Legislature is denied authority to abridge that right.
Where there is no constitutional inhibition, the power
of the Legislature to enact laws is supreme and un-
limited. ” (Emphasis ours.)
In addition to designating constitutional and statutory
voting provisions as part of the proceedings for levy of the tax, the
opinion in the Crabb case recognizes the unquestioned power of the
Legislature, inmbsence of constitutional prohibitions, to pro-
vide the method which counties shall use in levying taxes, includ-
ing the power to confer on property taxpaying voters the right to
participate in proceedings to determine if and when an authorized
;: tax will be levied.
Hon. B. F. McKee, Page 8 (V-1077)
The decision of the Supreme Court of Oklahoma in Til-
ley v. Overton, 116 P. 945 (1911). fully recognizes and sustains
this legislative power to prescribe the manner, time, and by what
authority the levy of a constitutionally authorized tax may be made.
In this case the legality of a school district levy for the year 1908
was attacked on various grounds, among which was the proposition
that a portion of the tax authorized to be levied by the Oklahoma
Constitution must be levied by the board of the district and not by
a vote of the people. The constitutional provision there involved
read as follows:
”
e . 0 school district levy, not more than five
mills on the dollar for school district purposes for
support of common school: Provided, that the afore-
said annual rate for school purposes may be increas-
ed by any school district by an amount not to exceed
ten mills on the dollar valuation, on condition that a
majority of the voters thereof voting at an election,
vote for said increase.” Okla. Const. Art. X, Sec. 9.
The court held that this provision as supplemented by
the statutes extended in force in the state upon its admission to the
Union was self-executing. The controlling statutory provision in-
volved provided that the inhabitants qualified to vote at a school
meeting shall have the power “To vote annually a tax not exceed-
ing two per cent. on all the taxable property in the district, . ~ 0”
With regard to this provision the court said:
“The foregoing statutory provision, in so far as
it authorizes an annual levy of 20 mills, is in violation
of section 9, art. 10, of the Constitution, in that under
that section the maximum that may be levied in any one
year is 15 mills, but in so far as the statute provides
the manner of levy and by whom it shall be made, it is
in no wise in conflict with the Constitution. By that
statute the people are authorized by vote at a meeting
of the district lawfully assembled to levy directly such
tax as they deem necessary and sufficient for the var-
ious school purposes for any current year. They are
authorized by this section to levy by their vote at such
meetings not only the first five mills, but all other a-
mounts that may be levied for the district.”
The court reached this decision on the basis of the fol-
lowing interpretation of the above quoted constitutional provision:
“It will be observed that that portion of the sec-
tion providing for a school district levy for the support
of common schools may be separated in two parts, the
Hon. B. F. McKee, Page 9 (V-1’077)
first of which authorizes a levy for a district of not
more than five mills on the dollar each year. The sec-
tion is silent as to how this tax may or shall be levied.
No attempt is made to define the procedure for its levy,
bywhom it shall be levied, or when it shall be levied.
It authorizes unqualifiedly, without restrictions or lim-
itation so far as the Constitution attempts’ to regulate
it, a levy for school district purposes not more than
five mills on the dollar, . . . The legislative intent
was to authorize first a levy of a tax not to exceed five
mills, leaving it to the Legislature to prescribe the man-
ner, time, and by what authority this levy shall be made;
but when a levy is to exceed five mills, which is author-
ized by the second part of the section, then there is
placed upon the authority to levy such additional amount
the constitutional restraint that it shall not be levied
except with the approval of a majority of the voters of
the,district voting at an election thereon. The addition-
al amount that may be levied under the limitation and
restrictions of the second part of the section is ten mills,
instead of five mills; and the limitation as to the man-
ner of such levy, which does not occur as to the.five
mills authorized by the proceding clause, is that it must
receive the sanction of a majority of the voters of the
district voting at the election, wh~ereas the first five
mills may be levied with or without such sanction of the
voters as the Legislature may provide. We cannot con-
cur in the construction contended for that it was intend-
ed to require that the first five mills should be levied
by the school district board. No such intention finds
specific expression in the seutiomnor do we think that
the same exists by implication. . D ~ All that was in-
tended by these provisions as to the school district tax
was that in no event should there be a tax levied for any
year in excess of fifteen mills. The first five mills of
which may be levied by such authority and under such
procedure as the Legislature may from time to time
prescribe, and the additional ten mills may be levied in
like manner except that such levy shall never be made
without the approval of the people of the district as pre-
scribed in the second clause of the section.”
The court also pointed out that at a special session of
the Legislature in 1910 (subsequent to the levy involved in the case)
an act was passed by which a different procedure was prescribed
for the levy of the first five mills authorized by the Constitution.
Under the terms of the 1910 act it became the duty of the county ex-
cise board, upon the estimates received from a school district to
levy a tax (not exceeding five mills on the dollar) for the support of
c
Hon. B. F. McKee, Page 10 (V-1077)
the common schools of such districtc At page 948 of the opinion
the court said:
“If there is any doubt as to whether the legisla-
tive department in passing the act of 1908 placed upon
section 9, art. 10 of the Constitution, the construction
we have here given it, an examination of the act of 1910
will remove such doubt; for, it is clear that the legis-
lative interpretation of this provision in the last act
was that as to the first five mills, authorized to be lev-
ied for school district purposes, the Legislature has
power, without any limitations by reason of said sec-
tion, to designate by whom and under what procedure
the same shall be levied,, and may do so likewise as to
all amounts in excess of said’five mills authorized to
be levied by that section, except Such levy must be made
by a majority of the voters of the district; and, what was
intended to be accomplished by the last act as to school
districts not in cities of the first class, was to change
the method and procedure of levying the school district
tax within five mills from the method prescribed under
the law extended in force in the state to that prescribed
by said act. It is true that legislative construction of
constitutional provisions is not binding upon the courts,
when called upon to construe such provisions; but the
construction given to this provision of the Constitution
by the legislative department is in harmony with our
views, and we think it is the correct one.”
We have heretofore pointed out that a method or pro-
cedure for levying taxes~which allows the voters to participate in
the levy of the tax is not unusual in Texas. Neither is it unusual
in other jurisdictions. It is well established as a proper and rea-
sonable means of local determination as to the need and uses of au-
thorized local taxes. Cooley on Taxation (4th Ed. 1924) Vol, 3, Sec.
1019, pp. 2062-2063.
We have referred to the custom and reasonableness of
the voting procedure as added evidence that it was not intended by
the Legislature as a limitation on the special taxing power author-
ized by the constitutional amendment. Had the Legislature provid-
ed an unreasonable or obviously impossible method of levy, such
as a unanimous vote of the property taxpaying voters, we would be
confronted with an entirely different question. We do not pass on
that question because it is not here presented.
For the foregoing reasons we are of the opinion that
Sections ‘7-9 of H.B. 107, 51st Legislature, are valid.
Hon. B. F. McKee, Page 11 (V-1077)
SUMMARY
The provisions of H.B. 107, Acts 51st Leg., R.S.
1949, ch. 414, p. 852 (Art. 7048a, V.C.S.), which re-
quire a local election to determine if and when the 30
cent per $100.00 valuation county tax authorized by the
amendment to Section l-a of Article VIII of the Texas
Constitution shall be levied, are valid. In the absence
of a conflicting constitutional directiqn as to the meth-
od for levying the tax, ‘the Legislature’has the authority
to provide by law any reasonable mode of procedure,
including the mode which allows the qualified property
tax paying voters of the county to participate in the levy
of the tax.
Yours very truly,
PRICE DANIEL
Attorney General
APPROVED: By ````~%J~ a
Mrs. MariettaMcGreg Creel
Chas. D. Mathews Assistant
Executive Assistant
Joe R. Greenhill
First Assistant
Price Daniel
Attorney General
MMC /mwb