Untitled Texas Attorney General Opinion ( 1944 )

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GROVER SELLERS AUSTIN 1,. TECXAS
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Honorable R. 6. Wyche Opinion No. O-6243
County Auditor Re: Articles 1694. 1683, 1689
Gregg County and other related articles
Longview, Texas on county libraries.
Dear Mr. Wyche:
Your opinion request of recent date has been received in
this office and we quote from same as follows:
“Facts: (1) There are three libraries in Gregg
County operated by three incorporated cities. Two of these
libraries have a legal certified librarian.
“(2) There is no library fund in the current budget
beginning October 1. 1943, and ending September 30, 1944.
“(3) Contracts have been entered into by the Com-
.missioners’ Court of Gregg county and the three cities.
(Copy of contracts inclosed.)
““(4) The Court passed an order on the 14th day of
August, 1944, authorizing the County Judge to enter said
contracts and authorizing the issuance of a warrant in the
sum of $3,333.33 to each of said three libraries . D 0 pay-
able out of the General Fund surplus a& (Copy of orders
inclosed;) Said sums are intended as the annual amount
for each of said libraries,
““Questions:
(1) Does Article 1694, Vernon’s, authorize the
.. Court to contract with each such library, independent of
Article 1689 and 1683, Vernon”s, and other articles re-
lating to county library?
“(2) If the court may contract with each library
must each have certified librarian to approve bill and
claims paid out of the sum provided for each library as
provided by the warrant above specified - if no county li-
brarian is named or provided with author’ity to approve
brlls and clarms. etc, 7
. .’
Hon. R. S. Wyche. page 2 (O-6243)
“(3) What is the meaning of ‘such contract shall
provide that such established library shall assume the
functions of a county free library within the county* and
‘said court may contract to pay annually into the library
fund of said established library such sums as may be
agreed upon a . . ’ as used in Article 16947
“(4) Must a certified county librarian approve
for payment bills and claims in all c’ontracts that the
court may make with established libraries ?
“(5) Under the terms and conditions of the con-
tracts above mentioned (copy inclosed and or~ders of the
court also inclosed) will the payment of said warrants
issued each such library violate article 3, section 52,
of the Constitution of this State ?”
Article 1677, Vernon’s Annotated Civil Statutes, pr~ovides
as follows:
“The commissioners court of any county may es-
tablish, maintain and operate within their respective coun-
ties, county free libraries in the manner and with the func-
tions prescribed in this title. The said court shall also have
the power and authority to establish in coo-operation with
another county or counties a joint free county library for the
benefit of the co-operative counties. (Acts 2nd C.S., 1919,
pa 219)“.
,Article 1679. V.A.C.S.~, provides:
‘“After a county free library has been established, the
commissioners court shall annually set aside from the gen-
eral tax fund of the county, a sum sufficient for the mainten-
ance of said library, but not to exceed five cents on the hun-
dred dollars valuation of all property in such county outside
of all incorporated cities and towns already supporting a free
public library, and upon all property within all incorporated
cities and towns already supporting a free public library which
have elected to become a part of such free library system pro-
vided in this title for the purpose of maintaining county free li-
braries and for purchasing property therefor.”
Article 1689. V.A.C.S.~, provides:
“All funds of the county free library shall be in the
custody of the county treasurer, or other county official, who
may discharge the duties c,ommonly delegated to the c~ounty
treasurer. They shall constitute a separate fund to be known
as the county free library fund, and shall not be used for any
Hon. R. S. Wyche. page 3 (O-6243)
other purposes except those of a county free library. Each
claim against the county free library shall be authorized
and approved by the c,ounty librarian, or in his absence from
the county, by his assistant. It shall then be acted upon in
the same manner as are all other claims against the county.”
Article 1690, V.A.C.S., provides,:
“After the establishment of a county free library the
governing body of any incorporated city or town in the county.
maintaining a free public library, may notify the commiss~ion-
ers court that such city or town desires to become a part of
the county free library system, and thereafter such city or
town shall be a part thereof, and its inhabitants shall be en-
titled to the benefits of such county free library, and the prop-
erty within such town or city shall be included in computing
the amount to be suet aside as a fund for county free library
purposes.”
Article 1691, V.A.C.S, provides:
“The commissioners court wherein a c’ounty free li-
brary has been established under the provisions of this title,
shall have full power and authority to enter into contracts
with any incorporated city or town maintaining a public free
library, and such incorporated city or town shall through its
governing body, have full power to enter into contracts with
such county to secure to the residents of such incorporated
city or town the same privileges of the county free library as
are enjoyed by the residents of such county outside of such
inc~orporated city or town, or such privileges as may be agreed
upon in such contract, upon such consideration to be named in
the contract as may be agreed upon, the same to be paid into
the county library fund, and thereupon the residents of such
incorporated city or town shall have the same privileges with
regard to said county free library as are had by the residents
of such county outside of such incorporated city or town, or
such privileges as may be agreed upon by contract.m
Article 1693,. V.A.C.S,, provides:
“The commissioners court of any county, wherein a
county free library has been established under the provisions
of this title, shall have full power and authority to enter into
contracts or agreements with the commissioners court of any
other county to secure to the residents of such other county
such privileges of such county free library as may, by such
contract, be agreed upon. the same to be paid into the county
free library fund, and thereupon the inhabitants of such other
county shall have the privilege of such county free library as
Hon. R. S. Nyche, page 4 (O-6243)
may by such contract be agreed upon; and the commissioners
cour’t shall have full power and authority to enter into a con-
tract with the commissioners court of another county wherein
a county free library has been established. under the provi-
sions of this title and shall have power to provide for and to
set aside a county free library fund, in the manner already
set out, for the purpose of carrying out such contract. But
the making of such contract shall not bar the commissioners
court of such county from establishing a county free library
therein. and upon the establishment of such county free li-
brary such contract may be terminated upon such terms as
may be agreed upon by the parties thereto, or may continue
for the term thereof.*
Article 1694,. V.A.C.S., provides:
“Instead of establishing a separate county free li-
brary, upon petition of a major’ity of the voters of the county,
the commissioners court may contract for library privileges
from some already established library. Such contract shall
provide that such established library shall assume the func-
tions of a county free library within the county with which the
contract is made, including incorporated cities and towns
ther,ein. and shall also provide that the librarian of such es-
tablished library shall hold or secure a county librarian’s
certificate fr’om the State Board of Library Examiners. Said
court may contract to pay annually into the library fund of
said established library such sum as may be agreed upon.
to be paid out of the county library fund. Either party to
such contract may terminate the same by giving six months
notice of intention to do so. Property acquired under such
contract shall be subject to division at the termination of
the contract upon such terms as are specified in such ‘con-
tract. D,
The br.oad purposes and intentions of Articles 1677-1696,
supra, are to provide free library services for the citizens of the county.
Also. these articles set up the standards fbr such free library service.
The librar~y service provided for in these articles may be obtained in
either of two ways: (1) the county may establish, maintain and operate
its own free library system as provided in Articles 1677, 1678 and 1679;
‘or (2) the county may contract for such services as provided in Articles
1693 and 1694.
When a county establishes its own library system, its ser-
vices may be extended to include the residents of incorporated cities or
towns, either (1) by joinder with a city or town at the request of its gov-
erning body, as provided in Article 1690, or (2) by contract with a city
or town as provided in Article 1691. In either event, the county library
maintains its identity as a county free library, established, maintained
Hon. R. S. Wyche, page 5 (O-6243)
and operated as such. In case the city 9r town enters into a contract
with the county for library services~, the county is in the position of own-
er., manager and operator of the library system while the city or town
is in the position of a subscriber for library services
On the other hand. instead of establishing, maintaining and
operating its own free county library system. the county may contract
for library privileges from (1) another county which has established a
county free library in accordance with the provisions of Article 1693, or
(2) the county may contract for library privileges from “some already
established libraryn (Article 1694). In either event, the other county li-
br,ary or the other “already established library” maintains its identity
as the owner? manager and operator of its already established library,
and the county, by virtue of its contract. authorized by Article 1693 or
‘1694, becomes a subscriber for the services of said library.
It should be noted that when a c,ounty, in lieu of establishing,
maintaining and operating its own library, contracts for library services
with either another county or another “already established library,s the
county receives library services equivalent to those it would have if it
had established, maintained and operated its own county library. Article
1693 provides that the contract may be made with another county which
has established a free library in accordance with the provisions of this
title D Thus, such county contracting for services in lieu of having its
own library, receives services that measure up to the standards required
for a free county library. Article 1694 provides that the contract “shall
provide that such established library shall assume the functions of a
county free library within the county with which the contract is made, in-
cluding incorporated cities and towns therein, and shall also provide that
the librarian of such established library shall hold or secure a county li-
brarian certificate from the State Board of Library Examiners,” thereby
providing a means whereby the county entering into such a contract may
have the kind of library service contemplated by this title without such
county having to establish, maintain and operate its own library.
It is also noted that in the caption of the original act. per-
taining to county libraries, S.B. No. 147, Ch, 117, Gen’l Laws of Texas,
34th Legislature. 1915, the language, in part, is as follows:
““An Act to establish. maintain, operate, equip and
disestablish county free libraries and county circulating
libraries for the use of the citizens of this State ~ D ~ and
also authorizing the commissioners court in lieu of estab-
lishing free libraries and circulating libraries to enter in-
to contracts wrth free lrbrarzes m any of the crtres and
towns of this State D o 0w (Underscoring ours)
The language is indicative that the purpose of Section 19,
S.B. No. 147, Ch. 117, Gen’l Laws of Texas. Regular Session 34th Legis-
lature. 1915’, as amended by Section 20, S. B-No. 149, Ch. 57 s Gen’l Laws
of Texas s Regular Session 35th Legislature. 1917. as amended by Section
20, S. B. NO. 80, Ch; 75, Gen”1 Laws of Texas, 2nd Called Session. 36th
Legislature, 1919, and changed by the codification of 1925 (R.CtiS., 1925
Article 1694) to read as cited herein, Article 1694. V. A. C. S., was to
provide a means of having library service
Hon. R. S. Wyche. page 6 (O-6243)
without the county’s establishing, operating and maintaining a county li-
brary as such, but, in lieu thereof, the county is authorized, by virtue
Of a contract, to subsc’rrbe to the services of an “already established Ii-
braryk equivalent to services it could have received had such county es-
tablished a library of its own, and a c’ounty is further authorized to pay
for such services in an annual payment from the library fund.
In view of the foregoing, we shall answer your questions
categorically.
(1) Article 1694 authorizes the commissioners’ court to
contract with an “already established library,” such as each of those re-
ferred to in your inquiry. The contract must provide, among other things,
that the librarian of the “already established library” shall have a proper
certificate. This provision of Article 1694 is in lieu of the provision of
Article 1683 requiring a county librarian to be appointed by the commis-
sioners’ court, for that appointment of a librarian by the court is appli-
cable to a situation where ,the county establishes, operates and maintains
its own library. and not where the county contracts or subscribes for li-
brary services from an “already established library.” Since Article
1694 authorizes a lump sum or annual payment for library services, this
provision is in lieu of that part of Article 1689 referring to approval of
claims by the county librarian, for that part of Article 1689 (concerning
the librarian’s appr~oval of claims) has reference to a situation where the
county has established its own library and has appointed its own librar-
ian. rather than to a situation where the c’ounty subscribes, for a lump
sum or annual payment, for library services in lieu of establishing its
own library, as provided in Article 1694.
(2) In view of the foregoing discussion, this question is an-
swered in the negative.
(3) The language. ‘such contract shall provide that such
established library shall assume the function of a county free library
within the ,con&y,’ .&as reference-to the service which the “already es-
tablished Ubrary”‘mu&providt; that is. the .sarme service that a library
,owaed. and olpuaied by ,+he cmmty wnukk .prwizk-,andrr the provisions of
this title- ,Thenn&ractrnay-cnntain ,such-prwvksions withrefer.ence to
the f.uncfier and s:eieices~af,tfte~-~ary,as rosy be agreed upon by the par-
sties thereto, .said provisions to be in acrnrd with the attainment of the
objective of library service within the scope and purview of this title.
With reference to the language of Article 1694, ‘“said court
may contract to pay annually into the library fund of said established li-
brary such sum as may be agreed upon. V+it is our interpretation that said
language provides a single annual consideration from the county in ex-
change for the library services by the already established library, said
services to be in accordance with the contract authorized by Article 1694.
In Section 20, S.B. No. 149, Gh. 57. Gen’l Laws of Texas, Regular Session.
* ,
Hon. R. S. Wyche. page 7 (O-6243)
35th Legislature, 1917, and in Section 20, S. B. No. 80, Ch. 75, Gen’l
Laws of Texas, 2nd Called Session, 36th Legislature, 1919, we find the
following language:
“The Commissioners Court may contract to pay an-
nually into the library fund of said established library such
sum as may be agreed upon, Said sum shall be paid out of
the county library fund provided for in Section 12 of this
Act.”
Section 12 of such act uses the identical language of Article
1679, V-A,- C.S.
Since the provisions of Article 1694 are in lieu of, or take
the place of, the “establishmentw of a county free library, the fund from
which the annual payment is to be made is the library fund set up under
the limitations as to the total amount under Article 1679, and in accord-
ance with Article 1689. as to the designated and specific use of said fund.
Under the foregoing limitations, the commissioners’ court is authorized
to “contract to pay annually into the library fund of said established li-
brary such sum as may be agreed upon to be paid out of the county library
fundam
(4) The claim for the payment of the annual sum for library
services under the terms of the contract would be allowed and ordered
paid by the commissioners’ court in the same manner that any other
claim for services rendered the county under a contract would be allowed
and paid. The approval by a certified librarian would not be required,
for under the provisions of Article 1694 the plan of an annual or lump sum
payment is in lieu of those provisions with reference to the approval of
claims by a certified librarian, which provisions are applicable to a sit-
uation where the county establishes, maintains and operates its own li-
brary, and has its own librarian, and not where the county contracts or
subscribes to the library servic,e from an ““already established library.w
(5) Article 3, Section.52, Constitution of Texas provides,
in part, as follows:
““The Legislature shall have no power to authorize
any county, city, town or other political corporation or snb-
division of the State to lend its credit or to grant public mon-
ey or thing of value in aid of, or to any individual, associa-
tion or corporation, whatsoever, or to become a stockholder
in such corporation, associatiola or company; e e 0 O”
The Austin Court of Civil Appeals in the case of Bland, et
al. vs. City of Taylor. et al, 37 S.W.(2), 291, in considering the applica-
bility of the above set out provision cf the Constitution, together with As-
title 11. Section 3, of the Constitution, which prohibits any county, city
or municipality from masking any appropriation or donation or in any wise
, ._-
HOIL R. S. Wyche, page 8 (O-6243)
loaning its credit to any private corporation or association, said the fol-
lowing:
“These provisions clearly contemplate and prohibit,
we think, benefits at public expense attempted in behalf of
individuals, corporations. or associations, as such. acting
independently and conducting some enterprise of their own.
such as are usually conducted for profit and commercial in
their nature. m
In the case of Davis, et al. vs. City of Taylor, et al, 67 S. W.
(2) 1033. in which the judgment rendered in Bland, et al. vs. City of Tay-
lor, et al. supra. was affirms d, the Supreme Court of Texas said the fol-
lowing:
“Article 8, Section 3, of the Constitution provides:
‘Taxes shall be levied and collected by general laws and
for public purposes only.’ --~Suffice it to say that, unless a
court can say that the purposes for which public funds are
expended are clearly not public purposes. it would not be
justified in holding invalid a legislative act - - pr.oviding
funds for such purposes.*
Therefore, we do not believe that such a contract. or con-
tracts, as we have discussed herein, would violate any provision of the
Constitution of Texas, as the expenditures herein mentioned are for
c~ounty library services for the citizens of the county. Furthermore
such service is clearly public in nature. and. the expenditure is not for
a commercial purpose. In connection w,ith this question, we point out
that we are not here ruling on the form or substance of your contracts
or the order of the commissioners* court. as we believe you will have
no difficulty in conforming them. if necessary, to our holding herein.
You are further advised that before such funds should be
paid out, such expenditures must have been authorized in the county bud-
get.
Trusting that the foregoing satisfactoxily answers your in-
quiry, we are
Yours very truly
Approved NOV 2 1; 1944
/s/ Carlos C. Ashley ATTORNEY GENERAL OF T~EXA.9
&i&t Assistant -
Attorney General By /s/ J.A. Ellis
J. A. Ellis This Opin-
Assistant ion considertd
and approved in
SAE:sd/cm limited c’onference