Untitled Texas Attorney General Opinion ( 1939 )

OFmOE OF THE ATI’ORNEY GENERAL OP1MA6
AUSnN
Hamrable Murphy tile
County Auditor
Liberty couflty
Liberty, TePam
Dar sir:
Honorable Eurphy Cole, pege ,#2
The broad general purpose or House Bill JaSS is
to essist the counties and derined rosa distriots 1s the
retirement or obligations ore&ted for the aoastraatlosof
roads, whiah function has been deolared to be.one resting
upon the State, and became of whioh, there now rests upon
the State both a legal and moral obligation to oompensate
and rehfhurse au& countlee and uerfned road dietriot ror
having performed such iunctions and to that extent the
funds provided by this Aot shall ooastituts ralr, Just asa
equitable coszpensatlon,repayment and reimbursementto sald
counties and dellned road dlstriots, ana i'ullydlsaharges
the legally implied obligations of the State to so compan-
sate, repay and reimburse suoh agencies of'the State.
Two methods hare been devised under this Aot by
whloh said obllg5tlone are to be dlsoharged, the rlrst being
a ab55t psrtloipatfoa in the one-oent gasoline tar 0r obll-
gstlons the prooeeds or nchichhave aatually been expeadsd
upon State deslgaatea highwsys and by inaired partlal~tlon
in meld one-oent gasoline tax through the *Lateral Road Ao-
oouIlt~, to whiah aaoount is oredlted any exoess funds ro-
malning after all primary obligations hare been alscharge&.
This moon& method la designed to distrlbate such exsoss
was equitably and ratably to all or the aountles ana
defined road distrlots or the Stats or Texas in aooordanoe
with the ratio provided.
It will be noted that the entire hat treats of the
rstlrement of obligations already areated, the proseeds of
whloh have been expended upon State deslgnsted highways.
It cont~plates asaiatiug the counties and derinea ma aim-
triets in retiring, paykg.off ana dimsbarging suah obliga-
t%ons, and that the rurther oonstmetlon at highways, UeSlg-
nated as State highways, rests exaluslrely upon the State
Hi&hway Commlsslon, and the bounties are forbiUden by the
prorlslon5 or seotlon 3 0r'Houme Bill #6SS to sake any
rusther lmproremeute or said highway8 8x55pt by the aoqui-
sltlon 0r rlgbt.5-or-my thereror.
The racts which gtre rise .to your rest questfon
are, briefly, as follows: In 1952 the DaptOn-Cleveland
Road in Liberty county was 8 part of the State Righrar
Systm and was designated as State Klghway #l46, and later
586
Honorable Eburphy Cole, page 1$'3
this designation was llf'teaor abandoned end said designa-
tion applied to another road. Subsequently, that is, betreen
Septeuber 27, 1932 and prior to January 2, 1939, Liberty
County construoted the Deyton-Cleveland Roed v3th bond fun&.
To mummmrlze, it must be noted that such designation ~55
abandoned and the State Rlghway number which had been applied
to the Dayton-Cleveland Road was applied to another mad,
namely, the Liberty-Livingston Road. Further, it 15 admitted
that there was no debt existing at the time said mad was
abandoned as e pert of the State Highway System, whioh, la
our opinion, excludes from partiaipation in the one-oent -5
tax the obllgetlons subsequently created for the aonatmotion
or,auoh roads, except in such proportion 55 the obligations
laayparticipate in any run65 accruing to the county throngh
the wLateral Road Acoount?.
Cur construction of paragraph 3, Seotlon 2, fs that
only muoh roadsas had tormerly oonstltutea a part or the State
Highway SyatesIand whose status had been lost through change,
relooatlon or abandonsent, that bed been aonatructed ulth bond
tPnd8 and the obllgatlOn8 issued to secure swh funds sare out-
standing at the time the road vas a part or the Syeta, aad
whloh bonds or obligations hfidnot been dlseharged or retired
at the time such road lost its designation either throwhF
ahanus, relooatloa or abandonment, asn prtlolpate 55 aa
mellgible issue* under the tez%s and pmvieions or House 'Bill
#6-. We oannot aonceive that the Legislature intended tie
pexwlt bonds, the pmcesds or which are to be expended oa a
roaa formerly oonstitntlag a part of the State Highuar System,
to pertloipate la the primary benerite of the one-oent gaso-
line tax ii'snah bonds are issued aubsequsnt~to the abandon-
seat or such road as a part of the State High-y SystSr.
Further, there being no evident intention by the HleIhuayCom-
m.l55lon or reaeeiguatlng suoh road as a part or the Hi
systes, we think the exoeptloa provlasa in 'aabseotioaFa) %
seotiOn 6, paragraph 2, lnappllcable to this issue 0r bonds.
Themrore, we conaluae that your rlrst questloa nnst
be answered in the negative.
The raata underlying your 5800na q~estlon are, briar-
iy, that in 1929 bonds were voted ror the eon5truatloa 0r 5
Xonorable Murphy Cole. page #4
road then known as Liberty-Livingston F&ad, and that in
1932 said road was deslgoeted as State Highway #leg, b&,
to date, the bonds have not been issued or the road eou-
struotea.
In order that suoh bonds may now be issued and be
eligible for pertlolpatlon in the one-cent gesollne tax as
Provided la House Bill #aSa, said raats must come within
the apparent exception provided la paragraph 3, subseotlou
(a), ;iectloa0, of said bill. This exception reeds, in
pert:
*In addition to and regardless or the other
provi5lon5 or this Aot. all bonds voted by a
county prior to January 2, 1939, insofar as
amounts of saxe were ox siaybe issued end the
prooeeas aotually expenaea 10 the constmotion
or roads Welch are a part or the designated
System or State highways, shall be allglbls
in the dletrlbutionof the moneys coming into
emid County sad~Road District Highway Fuud,
the 5am5 as provided ror other bonds under
this Aot, and 8~8 of the date of the aeslgsa-
tlon of said made as a part of the State
system **l“.
When a statute expre55e5 5 general intent or purpo50
and afterwards an iacon5lsteat ~ertlcnler latent, the latter
15 to be regarded as an exception to the former an&~&Ah ars
permitted to stand. Also, where one section of~an Aot prs;
scribes a general rule which, without qualifloatlou, Would
embraoe an entire class oi subjeote and another pressrlbes
a different rule for lndlvldusl subjeots or the 5amo ela55
~51atter will be ooustrued as an exodption to the ge5Srii
See 39 Texas Jurlsptidence;i Section 101; also milker
vs. &or, 266 S. OF.499, Cameron ~5. city or Waoo, 8 S. w.
(26) 249. mrther, it has been held that a genercilprovi-
sion or a statute nust yield to a speclal one so rar as 15
necessary to give errect to the partioular subjoot of the
speolal provision. See'Clty or Austin vs.~Cehlll, 88 9. W-
342, rehearing asnled, 89 S.W. 552, also Csllaghaavs* H*m,
90 S.X. 319, error ratneed, In the case of Stevens vs. Stats,
159 s. w. 305, the court 0r Crlmlml A~pesls held that chess
Honorable Murphy Cole, page #3
two previsions of the snmw law are in oonfliet, the last
one controls. The weight or authority seem8 to be to the
effect that In case of coniliet between the genwral and
specie1 provisions 0r a stetute, th* apealal one shall
prevnll. And even when e statute expresses a general in-
tentlon end likewise 6 plrtlcular intention lnoompatlble
\ath it, the particular fntentlon may be deemed an eroep-
tion to the general one. See Hwlem vs. bells Fargo k Cora-
paay ExpreQs# 177 s. u:.134.
Section 3 OS Rouse Bill #688, atate8, In part:
*All further improvementa of said State Blgh-
way Systcn; shall be xsde under the exclusive and
direct control of the StatW Highway Department,
and tith np roprlotlons medw by the Legislature
out or the 8 tnte Eighway Pund. lfofurther lri-
proverrent or.sa,idsystem shall be made with the
cid of or with any money furnished by the countlea
except where the aoqulslt~on or rights-of-way
which nay be rurnlshed by the oountles, their
subdivisiona, or def~iaed road Uistrfots.”
St is'obvious that paragraph 3 of wubeeotlon (a) of
Se&ion 6 is in confliotwfth thw'provfsion above quoted, but
by the very languagw~oi this paragraph, the Legislature ha8
attempted to mike this provision an exowptioa, suah lamgmage
being - "In*a$dipon to endregardle?e or other provialonr
or this Act wrhleh, in our opinion, brings t&da within
the purview of the'holding in the oaae of Holrord va. Patter-
SO~, a40 s. W. 341, whichwas atflrmwd in 257 S. w. 213, Mare-
in the oourt stated that "when a statute firat expresaea a
general intwnt.snU arterwards an fnoonsiatent partleular in-
tent, the latter will be taken as an wroeption to the rormer
and both will stand."
In view of the autborltfsa quoted above, which, when
read in connection with the language wmploywd in the Act, we
reaeh the conolusion that your seoond question must be ana-
~tipd in the errirxatfve, that is, that euoh bonda when
issued shall be elLgiblo for pertlolpstion in the primery
Honorable Wrphy Cole, page #6
benerlte 0r the one-cent gasoline tar es provided in
House Bill &88.
Yours very truly
ATTOPSIX CS?ZRAL OF TEXAS
%&zs- ~.+------
Clarence 3%.Crone
Assistant
cm-e