Untitled Texas Attorney General Opinion ( 1944 )

Honorable M. E. Baker
President of Corpus Christ1 Junior College
Corpus Christi, Texas
Attention: Dean E. L. Harvln
Dear Sir: Opinion Ro. O-5891
Re: -Are ex-servicemen en-
titled to free tuition-ih'
the pub110 junior colleges
that receive benefits from
the Public Juni.orCollege
Appropriation Act?
Your letter of January 21 reads in part as
follows:
-"The Texas Association of Public Junior
Colleges requested that I ask You for a rul'ing
on the questibn of whether or not ex-servicemen
can blaim free tuition in-the public junipr
colleges thatreceive benefits from the Public
Junlbr College Appropriation Act, which was
passed by the
.~ last two sessions of the Legislature."
,.~
In order to arrive-~atthe correctanswer' to
your inquiry; lt‘wlll be'hebessary to review~the-history
of the various LegPslative enactments, applicable to'3.n;
stitutioti$.ol cbllegihte- rank and-exemptionfrom payment
of tuition,.sofas to ascertain the Legislative intent.
Article,2654a, V. A; C. S. (Ch. 237, Acts of -
1927,'40th Leg..)relates to matriculation fees and
charges to be exacted by the State'educational lnstl-
tutions '(ofhigher learning) as therein set forth and
designated.
Article~2654b, V. A. C. 3. (2nd C.'S., Ch. 52.,
41st Leg.) provides for the exemption of veterans of the
Spanish-American war from the payment of any fees or
charges In State instltutlons; schools or colleges of
Texas to thensame extent as veterans of the (First-)
World War are exempt from such fees or charges under
Honorable M. E. Baker, p. 2
State laws.
"The "State laws" referred to therein were the
provisions of H. B'. 182, Ch. 147; Acts of 1923, 38th
Leg.; which exempted 'certainveterans 0.fWorld-~War'lfron
the pajrmentof all dues, fees and charges'whatsoever,
with certain exceptions, fixed or collected by the public
educational institutions of this State.
Set‘. 1 of Article 2654b-1.(1st C. S., p;~lO; -
Ch.~6, 43rd Leg.).provides for the exemptionof veterans
of the Spanish-American ~and./or'World.Warfrom'the ~paYmet&
of~all'dues, fees and 'charges~whatsbever,'bythe insti--“
tutions'of Collegiate rank; supported in whole or in part
my-fiublic'
funds 'ap.@ropriated-
from the State-Treasury.- ~--
Seti.~2~therebfmakes the~saine~exemptions~appIic~abIeto
theOhighestranking graduate of accredited high schools
of this State.
Article 2654~ (Ch. 196, p. 396, 43rd Leg.)
provides for-compulsory tuition as therein set forth.
Same is to be collected from~students registering in the
several institutions of collegiate rank supnorted in -
whole or-in part byepublic funds appropriated-from the
The provisions of said Chapter 196
``~$``~$%ed Art. 265413 (H. B. 182'). Attorney Gen-
eral's~ letter opinion 'co'&?.H. Y. Benedict, Bresldent;
University of Texas, dated August 22, 1933 and Attorney
General's opinion No. o-4200.
It'is evident that in passing Chapter 196
aforesaid the Legislature'intended'to and did substitute
the compulsory tuition fees, as therein stipulated and
required, for the matriculation.fees allowed in Art.
2634a (supra). It is also evident that it did not in-
tend to repeal any of the other provisions of said Art.
2654a.
It'will'be noted that the above mentioned Art.
2654b-1 was enacted at the 1st C. 3. of the 43rd Legis-
lature and being-a later expression of the Legislature
than the above mentioned Art. 2654c, its provisions as
to the exemptions from'payment of a11 dues, fees and
charges whatsoever, operate as an exception to the pro-
visions of Art. 2654~ which provides for compulsory
tuition.
Honorable M. E. Baker, p. 3
So it will have to be tionceded.thatwhen the
rovislons of said Ch. 196 of the 43rd Legislature
PArt. 26540) and the provisions of Ch:6, 1st C; 3. of
said 43rd Legislature (Art. 2654b-3).became effective,
that-the governing boards of the several institutions of
collegiate rank,'supported.in whole br in part by publio
funds appropriated from the State Treasury, were required
to collect from all students the.tuition as provided'in
said Article 2654c, with the exception that such gbvern-
ing boards should not collect such tuition from the
students exempted by Sections '1and 2 of Article 2654b-1.
As the Public Junior Colleges were not then supported~in
whole or'in part by p.ublicfunds appropriated from the
State Treasury and the Board of Trustees of,a'Junior
College District (except those that were'state supported)
bad the authority to "fix and collect fees for matricu-
lation, laboratories, libraries, ymnasium and tuitions",
as providei:in Sec.'13 Article 28l%, V. A.'C. 3. (Ch.
290, Abts of 41st Leg.j it is evident that neither said
Article 2654b-1 nor 2654~ applied to such Junior
Colleges.
However, since the enactment of the above re-
ferred to Legislation the Junior College Appropriation
Act was enacted by the 48th Legislature, Ch. 157, (A~rt.
28155-2 V. A. C. 3. ) and Ch; 337 of the 48th Leg.
(Art. 2&54b-1) was also,enacted.
If this'new Legislation did not change'the
existing.law pertaining~to such Junior.Colleges then
our answer to your question would-of~necessitjrbe that
ex~servicemtn~cannot claim free tuition"ln~the~'p~blic~'
JuniorColleges; '-hit-
is.bur~opinion, ,however;thatthe
two Actsin question'make'it'mandatory'that ~the Junior?
Colleges, who receive benefits from-the Junior College
Appropriation Act, receive the ex-servibemen without
payment of tuition as provided for in Sections 1 and 3
of Article 2654b-1.
We will first discuss the Junior College Act
which was enacted by the 4 th Legislature, Ch. 157,
(Art. 2815J-2;V.'A. C'.2. ? * The following provisions
of said Act are pertinent to your inquiry:
Honorable M. E. Baker, p. 4
"Sec. '1. There' shall be appropriated
biennially from monies in the State-Treasury
not otherwise appropriated an amount suffi-S
cient to,suppltment local funds,in the proper~
support, maintenance,'operation;and improve-
ment of~the P-ublicJunior Colleges of Texas,
Which~meet the standards as herein provided;
and said sum shall be-allocated on a basis and
in a manner hereinafter provided.
.
'Sec. 2. To be eligible for and to
receive a proportionate share-of this-appropri-
ation;‘a public Junior'College must 'be'ac--
&edited-as‘ a-fir~t;class'J'unidr 'Cbllege-bg'..
.
the3tate Department of Education and the State
-Department of‘Education is hereby authorized
to set up rnlis and provisibns~by'which publib
Junior Colleges may be inspected and accredited.
* + * It shall be mandatory that each Institution
participating In the funds herein provided shall
collect'from each pupil enrolled, q atrihulation
and other session fees notless than the amount
provided for by.law and by other State supported
instltitions of higher learning; as'provided In
Articles 2654a, 2654b and 2654`` the Revised
Civil Statutes of Texas * * * *I.
It is apparent from examination of thenquoted
portions of Chapter 157, (supra) that the Legislature did
not intend by said enactment to prescribe either a fixed
or a maximum scale of entrance"fees for Junlor College
Districts which qualify for State funds under said Act-;
The evident ph$pose of the Legislature was-to prescribe
the minimum fees which the Board of Trusteesmight fix.
if the district is to qualify for State funds; specifi-
oallg~Chapter 157 requires that such district charge
not less than-the fees prescribed by law for State-sup-.
ported colleges and univerbitles "as provided in Articles
2654a, 2654b, 2654c, Revised Civil Statutes of Texas."
Examination of the offSMa Revised Statutes of
Texas will dlsclose that there are no such numbered
statutes contained therein. Our investigation further
discloses no enactment officially so numbered and desig-
nated. It is evlden,t,therefore, that the reference was
^.
,..
.
Honorable M. E. Baker, p. 5
in error; but under settled canons of statutory con-
struction, we perceive the rule to'be that a statute
should not be denied effect because-of errors'of ex-
pression; so long as the Legislative intent can be
ascertained. 59’ CoPpus Jurls., pp. ,601, et seq.;
ibid., pp. 918, et seq. .
In attem'ptingto astiertain-theLegislative
Intent in the present instance trsare of the opinion
that the reference actually intended was to the widely
used unofficial compilation.of'Texas Statutes by the
Vernon Law Book Company. See Hughes vs. Kelly Bras-., ~-
129 3. W: 784; Hollibaugh vs. Hahn,'79 Fac.,I044; People
vs..Van Bever, 93 N.E. 725. .The Vernon compilation
does contain material with these'numerltialdeslgnatlbns
which relate to the subject matter of fees and charges
in State-supported Institutions of higher learning as
set.forth-above-. However a portion of the material
which-is embodied as “265-b”- in Vernon's compilatlon~
was repealed in 1933 by the enactment of ArticK2654c,
V. A. C. 3;~ (supra), and Article~"2654b" irasrepealed
in toto by said Article 2654~; as above set forth: In-
asmuchas Article 2654b was repealed and was wholly‘a
statbte of exemption as to-certain students from the
payment oftnitibn in State-supported-schools, the
Legislature evidently-intended to-refer to Article
2654b-1 which contained the same exemptions-as said
repealed Article 265413,as well'as other exemptions.
Its would follow that inasinutihas the Legislature; in -~
enacting~this Junior'CoIlege A~prbpriation~Act referred
to this exkmjptlori -statute,~
intended for such~e'xembtions--
to-apply to a11 the:Junior CoIleges 'whichquaIified``undeh
the'Act. Hbtiver;.even'though it should be held-that-the
numerlcal'references'~are‘~so'amblguous asto render their
identification impossible, wt+can StilI'arrive'atthe-
Legislative'intention with reasonable certainty by the
languagesused in said Act. Eliminating the numerical
references the intention of the Legislature nevertheless
is ascertainable, for the reason that its direction is
that Junior College districts which desire to qualify
under Chapter 157, supra, must "collect from.each pupil
enrolled, matriculation and other session fees not less
than the amounts provided for by law and by other State-
supported institutions of higher learning. State vs.
Ransom, 73 MO. 78, distinguished and kooroved Gunter vs.
:. ..,
Honorable M. E. Baker, p. 6
;;ys Land and Mortgage Company,'82 Tex. 497, 117 3. W.
.
_
If the'above Junior College a&was the last
expresslon~of the Legislature in reference,to the subject
Involved herein, the correct atisw@r to'youi?inquiry would
be very'doubtful. But the same~Legislature, subsequent
to the enactment-of said~Act, passed an Act which it
called an amendment to said Article 2654b-1, by adding
thereto an additional se&ion to be known as Section 3.
Section 3 merely made the exemptions provided for in
Section.1 as to veterans of the Spanish-Amerloan and/or
World War No. 1:and provisions of Section 2 as to‘~ex-
emptions'~providedfor high ranking students'0.i' the'
accredited high schools, to also apply to veterans of
World War Iio.2. Said Bill‘is S.-B. No: 81,~ Ch. 337, -~
Acts of the 48th Legislature and embodied thereinis the
following significant provision: "Other than as amended
herein,'Article 2654b-1 is hereby reenacted and shall at
all times continue In-full forbe and effect subject, only
to the addition of the above section to be known a3
Section 3." It is our opinion that the above quoted ,.
provision oftsaid Act in effeot amounted to-the incor-
poration in said Act of the whole'of Article 2654b-1 to
the same extent as if same, had been made a part of the
Atitby incorporating said'Arfihlb therein haec verba.
We do not'believe that the referentieto*said Article
2654b;l as made in said Act violates-the Constitutional
provisioh that no law shall be revised or amended by
mere-reference to it& title;. ‘The-‘rule as stated,by
Sutherland In his work on Statutory Construction, 3rd
Ed., Vol. 2, Sec. 5207, p. 547, reads as follows:,~ .
"A statute may refer to another statute
and incorporate part of it by reference.
(Citin In.re Heath, 144 U. 3. 92, 36 L.
.,12 Suf;.Ct. 615 (1892);
Ed. 358' State v.
Burchfleld, 21 Ala. 8, 117 So. 483 (1928)
Gadd v. McGuire, 69 Cal. App. 347, 231 P.
754 (1924 ; Gillum v. Johnson, 7 Cal. 744,
62 P. (2dI 1037 (1936); DuPont v. Mills,
39 Del. 42, 196 A. 168 (1937); Zurich
General Accident and Liability Ins. Co. v.
Industrial Commission, 331 Ill. 576, 163
N.E. 466 (1928); Department of Banking v.
Honorable M. E. Raker, p. 7
Foe; 136 Neb. 422, 286 N.W. 264 (1939);
State v. Hancock, 54 N. J. L:393, 24 A.
726 (189); Dallas County Levee Improvement
DFst. No. 6 v. Curtis, 287 5. W. 301 (Tex.
CFv. App. 1~6) .~ The Constitutional pro-
vision that nonla-wshall be revised or
amended.by mere reference to its title is
sbmetFmes used tb attack these statiztes.'
Reference statutes are not considered.amtnd-
atorg, however, but complete in themselves,
so that the ConstitutZonal objection
.- is met."
See also an opinion by Judge Gaines as reported Fn Quillan
vs. R. &~T. C. Rg. Company, 34 9. W. 738;'Leake'vs. City
of Dallas, 197 S.W. 473; Dallas County Levy DFst. vs.
Looneg, 207 S.W. 310.
The provision in this later Act, which states
that "The governing boards of the several institutions
of collegiate rank, supPorted In whole or in part by
public funds ap@opriatedfrbm the-State Treasury, are
hereby authorized and directed to except'and exembt'"ex-
servicemeh from tuiti-on,will control over and operate
as ah exception to the provlsion in the prior Junior
College.Appropriation Act which reads as follows: "It
shall.be mandatory that eabh institution partl.cipatFng
In the'funds'herein provided shall collect from each
pupil enrolled, matriculation and other session fees
not less than the amounts provided for by law * * * *".
.
The rule‘as to repeal by conflicting acts of the
same Legislative session is stated by Sutherland in his
work on Statutory Construction, 3rd Ed., Vol. 1, Sec. 2020,
p. 484 as follows:
"In the absence of an irreconcilable con-
fl%ct between two acts of the same session,
each will be construed to operate-within the
limits of its own terms in a manner not to con-
flict wFth the ~otberact. However, when two
acts.of the'same session cannot be harmonized
~br reconciled, that statute'which is the latest
enactment will operate to repeal a prior statute
of the same session to the extent of any con-
flict in their terms." (Emphasis ours).
Honorable M. E. Baker, p. 8
As the'latest expression of the Legislative.
will'prevails; the statute last passed will prevail over‘
a statute passed prior to it, irrespective of‘whether the
prior statute takes effect before orafter the later
statute. -People vs. Erambr, 328 Ill. 512, 160 N.E. 60
; Rewbauer vs:State,~200 Ind. 118, 161 N.E. 826
; State vs. Schaumbur 149 La. 470 89 So. 536
; State vs. Marcus, 3$Ii. M. 378; 281 P. 454
Winslow vs:Fleischner, 112 Ore. 23, 228 P.
101, 34 A. L. R. 826 (1924); Buttorff VS. York, 268 Pa.
143, 110 A. 728 (1?20),.~ .- ._ : -_
St is therefore our opinion that the ex-servlce-
men cab claim .freetuition in-the public Junior Colleges.
that rixeive benefits from the Public Junior College Ap-
propriatlon Act. ,..
'Trusting that this fully answers your inquiry,
we are
Yours very truly
ATTORREYGERERAL OFTEXAS
BY Gee. W:Barcus
AssFstant
.
BY w. Y. Geppert
WVG:bb/mjs Assistant
APPROVED MAY 30, 1944
:
/s/ Grover Sellers
ATTORREYGEIVERAL OF TEXAS