Untitled Texas Attorney General Opinion ( 1944 )

133
iicnorobloI. Fmdecki
ccxantyAuditor
oiAm3ton couutg
calvsstoa, Texas
oposed Oalvertoa-
!Cunnel~and relat-
sbova 0apLieasd
thla cgoement expired it was again renevod tor a
period of 90 days on April lOtA, 1944, at a meot-
log of the+iakissioaers' Court held on that date.
?l. B. 990, Aots ot the 47th Le&s2ature,
ufrL& 1s Art&c& 6795-B of the Reolaed'CL~il Stat-
utea, autho~$.gss ~onatwS%oaa of a tstrwture uhiah”
134
Honorable I. Predeoki, page 2
the engineering firm referred to proposed to Sur-
tish plaza alla apecificatfons for.
“Section 1 of said Article refers’ to the au-
thorization and Issuance of revenue bonds as well
aS the pQEb3at Of PZ'elimilWjr 8mnS8S by the
County from Its (general funds’ aad also provides
for the repayment to such fuuds fmm the proceeds
of the bouds when available.
“The various funds that 0alvestoa County has
at this tIm8 vere levied for specific purposes
and in none of said tax levies was oontemplated
the expeuditures sow propoaod for engIneerlug
services In comeotloa vith the tunnel. Ia aec-
tlon 2 of said Article, the vords ‘aenoral funds’
are used, and as this article Is a part of Title
116, Roads, Bridges, aud Ferries, It OCQLWS to me
that IS It Is legal to advance any funds, that
said funds should come Sron tax levies Iu uouuea-
tlon with roads, bridges, aad ferries.
)Your Oploion lo rerrpeotfullprequeeted on
the following:
“IS Article 6795-B a lega aad aoastitution-
al act?
“3Inoe the Couuty Is prohibited from traas-
.ferrfng oonstItutIoua1 funds, what funds can be
used to pay the~sum of $5O,O00.00 thI8 year and
$50,000.00 In the pear 1945, and the statement is
made by the RrqIneers that the Federal Government
through the State RI&way Departmeat ~111 match
the $100,000~.00that 2s requested Srolpthe COUP-
tY-
%houldgour oplaion on the above be Ia the
aegati+e, Is the County authorIsed to have a bond
electiotafor the purpose of Issuiag bonds Iu the
8~ 0f .$100,000.00 as its share of the preW=P
engIneerlag expenseaT
a
.“... ..
‘
.
’ 135
zonorable Xi Predeakf, page 3
W8 haV8 CW?fdly studied H. D. 990,.and have b8eA
unable to Shad sag provisions thereof vhIch la our oplaIoa
are i?~vlolatioa
._ of._the Constitution. We &We pazt10ular1y
con310eraQ 3816.act /A coaJUaot~oa vltl'z
SeW#ioA 56 of A.rucle
3, SeCtioA 9 of Article 8, Seotloa 18 of Artlole 5 and Sec-
tlon 7 Of Arttale 2 of ow State COnstItutIon &Ad have reach-
ed the Oonclusion that your first question should b8 answered
in the affirmative.
The Aat itself provides that the ooat of the pro-
ject shall be considered to Include the oost of construction,
the cost of all property, et cetera, aad %hall iaclude the
ppnt of al& legal, ffSCa1 and engineering eqenSes in-
curred la oonneotloa ulth the acquisition and aonstructfoa
of the pI'Oj8Ctand the making of preliminary swveys and in-
vestigations and the authorization and lasuanoe of the reve-
nw bonds." It la further provided in the Aat that any pre-
liminary expenses paid by the county from Its general funds
ohs11 be repid to the county horn the proceeds OS the bonds _
when available.
It may be seen, therefore, that Galveston County la
to,~flnaacethe pretilnary work and will b8 retibws8d for
that 8Xpense from the proceeds of the bonds Za the event the
revenue bonds are actually issued and sold.. Does this con-
stitute a leading of the assets of the OouAty, in VloLatloA
of our State Constitution? We think not. IA the SiFst plaae,
i there oan be no question but that this prellmlnary expense
is for “county purposes." See Aransas County vs. ColemaR-
F&On i%iSttWeCompany, 191 3. WI 553~ ~hl85tOn county VS.
Gresham, 220 S. W. $0; Hldalgo County Water ZmpFovemeat Dis-
trict No. 2 vs. Felck, 111 S.,W. (26) 742.
The Legislature could have prOVld8d IA said Act for
the oOuAtg to pay this preliminary expanse VIthOut makIng Pro-
VLSIO~S for its repayment, aa the projects provided for there-
in are for %our&g purposea.” The,mere SaOt that th8 Legis-
laturo provided for the county's repayment does not make the
trnnsaotion a "leAdIng," as the Legislature evidently knew
that if the flannclng of the projeot Salle, that the bonds
vould not b8 issued and the payment by the OOuAtS of the Rre-
i l&&ary eaellS8S would not be replde,
Fop an i~~tratloa of the prIAOIple involved, Ye
oite a gouovingg A OWM a farm adjoW 8': A de*fies to
i
136
fioaorableI. Predeckl, page 4
build a~fence around his land so as to keep his cattle con-
fined therein. B tells A that ii A will build such Seaoo
and PY for the Same that la the event that he (B) la elect-
ed to the office of pound keeper that he vIl1 repay A So+
such expenditures. A built the fence under wild aDeeneat.
Did A lend money to B? The question answers ICje3.f. The
fence belonged to A aad was erected for A's boneflt and Aas
p~poso. The prellmlzzwy expenses are for county purposes .,
6nQ 1s paId out for the bsnefit OS the county and the mere
fact that upon the happealqf: of a future coatingeaoy that
such money would be reSund9d to the county would not make
the paying for such preliminary expenses a lending of money.
Tb6 SUPrem Court of TeMeSsee In the case of Stat8 ex.rel.
Bigham, et al., VS. POVeI?a,reported IA I37 9. W. lll0, had
tke same WestlOU before It and held that the paYmientby the
county of the prelimiW.irYexpenses incurred in coanoction
with the proposcldformation of a drainage district, although
th6 amount so expended would be rotunded t0 the county out
of*the aSSessm8nt3 COlleUt8d from thelaads Of such dj.strIot
when so collected was not la vlolatlon of the coastltutfonal
provisions of Tennessee, vhlch has a llk8 provlslon as.ou
State COastltutlOa, as to leading of credit, et cetera. This
court In the course of'it8 oplaloa used the following lang-
uageI
“We do not think that this makes out a case of
lending the oredit of th8 county in the coastitu-
tlonal sense, but that it la rather tho ooaferrlng
of authority upon the counties to appropriate a
portfoa of their geaeral funds for a newly sane-
tloncd OOMty pUFpOS8." .'
All county expeAdItuF85 lawfully authorized to be
mzde by a county must be paid out of the county88 general
fund unless th6re is some lav which makes them a charge
against a sp8clal iund. Bexar County vai &inn, 157 3. Y.
(26) l34; w.llama ~8.~Carroll, 182 3. W. 29,
Tha oaxg special Sund, besidea.the goneral fund,
that ;t could 8‘v0a bo contended could be used In l=Ylrr&for
aaae prelwnary expenses, IS the Road aad nrldas FM& 30
lg VQ reach th8 conclusion that the R-d ead &i&e Fund Can0
not be used to pay th6Se prelvY exw!ns8% ve hav8 Your
second question aaavered~
T&$ fj.p$t QWStfOA that arise8 fs vhether Or aot 8
t&i& 1(1 a “road” or a gbp;&ge’ as those terms are wed fn
.
.
~...
_
137
Honorable I. Predeokl, psge 5
Section 9 of ArtlOb 8 of our Constltut;ba. _
We do not believe that it could be serlouslg con-
tended that a tunnel Is a bridge. Is It a road? Uebstw's
Heu InterKUitlO~l Dlotloaary defines a tunnel,as follows:
'A subterranean passageway, esp. o&nearly ':
horizontal and open at both ends, as to provide
8 path iOr a road, railroad, c+nal, and eta., OF
for a sever or drain.’
So ue see that a tunnel Is merely a subterranean passageway,
'to provide a path for a road . ; .' A road as deflaed by
Webster's New InternatIonal Dlatlonarg la as follows:
'A place Vhere onemy rlde$ an open way or
pub110 passage for vehlcles, persons, and ax&ala;
a track for travel or for couveylng goods, etc..,
forming a means of cammuuloatlon between oue place
8nd 8bOtheI'. Road is generally applied to a hlgh-
way outside of an urban dlstrlot, as distinct
from a street which 1s a highuag lo an w&an dia-
trict."
Vi have carefully examlned all the authorities olted
la Words 8od Phrases, Corpus Jurls and McQulllla on BUU.olpal
Corporations, ooustrulng tunnels, and the only case that ve
l-m10been able to find In any jurlsdlotlou, that Is directly
in point cnthls matter la the case of Thompson, et al., vs*
iiance,City Treasurer, et ali, reported in 163 Pao. 1021, lu
which the Supremecourt of CalZrornia held that a tunnel is
not a street. As stated by Webster lu hls deflultlon of 0
road, 8 street is merely a road within the Units Of a tOM
or oitg.
A bridge is defined by Webster'8 &3v fntertiatiorial
DlotloIuU-yas follovsr
“A
structure erected over a depression or an
obst8Ole, as over a river, chasm, -dvaY, pall-
road. eta;. carrgiw a roadvay for passeagers, ve-
hl&s, et-ceter&." __
Thus ve eee that a brld&e 1s a struatum
and that aocordlug to Uebster,'a roaduay
-. 138
bnorable I. Predeokl, page 6
and by reason thereof a bridge coma nearer to being a road
than does a tunnel. The Sroxzrs of our Constitution ia pro-
Vidl q for Road and Bridge Funds, evidently did not use tte
tern roads” ln a broad enough sense to include “brldSesy
or else thox would have merely provided for a’ “road fund ’ in-
stead of a road and bridge fund.” If the tern “roads” as
used in the Coustitutlon uas broad enough to lnblude "bridges,"
the addition of the term “bridge” vas surplusage and meaning-
less. Furtheruore, ve CamA believe that at the time the
Constitution was vritten that the framers thereof ever oon-
tczplated or dreamed that 8 road as used ther8itAwould coustl-
tute 8 tUM1 usder the sea.
Section 9 of Artlole 8 of our Constitution, reads
as r0110ust
” . and RO county . . . shall levy more
than 2jC*Sor city or county purposes, and not 8X-
coedlng-154 for roads and bridges, 1 .,.*
The fact that Section 9 (supra) la providing for the
levy Of not exceeding 154 on the $lOO.OO valuation for roads
and bridges, does not read: roads, bridges and tunnels, leads
to the inevitable conclusion that such spec'lalcoust;tut;oual
fund should only be expended for roads aa bridges.
The Supreme Court of Ts.xasln the case of Arausas
County et al., vs. Colemn-Fulton Pasture Company, et al.,
(supraI, had under consideration for construction that por-
tion of Section 52 of Article 3 or the Constitution, vhlch
reads 8s So~ous: "The constructlou, malntenanoe, and opera-
tion of mmadamlze$ graveled or psved roads and twnplkes,
03 in.ald theroof, and held that the.sense in vhlch the term
"roads@ is used ln.sald Section of the Constitution, iMhdeS
the tern "brldg8S,R but the Court in the COUlW8 Of it8 Apia-
ion used the fOUOWing signiSl=nt bW%8:
9n diff8reUt provisions of the Constitution,
aamelv.
-. . Seotlon
-~~~~~~ ~-. 56 OS Article 3. Section 9 of k++
ole2,
--- Sect&k 2-0s Article 11,-in0.Y to1
Art 1~18 16, rOads and bridge8 are deagi vffth8s'
distinct subjects~ In Litactiong of ~ttiie 8, the
construution of eaah 1s rl0oogtdmd as a dle+nat
a8 the t8l'% ‘rc ads’
purpose or ta.mtloD,” Ina?inuatih
. ,’
Honorable I. Predeckl, page 7
is very plainly used in these section3 ia a Sped
ClfiC SOWJO, it IS urged by the defeudauts in
error that the same restrlcted meaning should be -
given it la the construction of Seotion 52 43s
Article 3. Such %I88 the view of the Court of
Civil Appeals. There is force in the position
as a general rule 0s construction6 But the sense
IC which 8 term 18 used inother provlslous of the
CouStltUtlon is uota conclusive test of its meau-
lng ln a particular provision.: The spirit, pur-
pose acd scope of the pa?tlcukir provLs;on 8pe
all to be consulted in the effort to deterniue
ulth certalcty the moaning of its terms.* (Uuder-
acoring ours)
The Supreme Court in the above ~a38 clearly state3
th8t the term *roadsa as used lu 3al.dSeatlou 9 of Mtlcle 8,
is used in ita st~lctest sensei and does not include bridges. ,
~~e~~"rl roads as used lnSeotlon 9 does not include
.
EV~KLthough the term "roads3 as used in said Seo-
tlon 9.be broad enough to include a tunnel we are of the
OpitiOlIthat the 8XpeUdltuN for these pre iS.rninaryexpenses
should still be paid out of the general fuud of the county.
It is true that the county 1s prohlblted fi.~~~traasSerrlug
nouey from one oonatltutlonal fund to another, but x8 thiuk
this expeudlture la oertaitiy for general county purposes and
should properly be paid from the goneral fund, even though it
night be held that the aatual oost of the collstructlonof the
tunnel, Is it uere being paid for by the county Srox its funds
dertid from the taxes, properly should be paid from the r@d
and bridge fund. 'Al1 of the servloes heretofore performed
and to be performed, for which thle~payxeut is to,be made, are
of 8 fiSC8i nature and are prelSminaPy to the conatructlou of
the project and has to be coxploted before it can be financed,
much less actual oonstruotlon begun. In Words aud Phrases, it
i3 stated that the term "preliniaary" dealing with prelynaw
expenses, means "that which precedes the mSiu buslness~
In Attorney General's Oplulon No. O-781, lt was
held that the expenses for holding a county-wide eleatloa for
the purpose of voting a $gO,OOO.OO road bond l3su8, uas PSY-
able out oS the general fund &the COuPtY* T~u election.
. s:’
i
. .
Honorable I. Predecki, page 8
eqense wasmerely preliniUWy eXpSX%?n,and w&3 not payable
out of the R@d and BriBp;eFund. It was merely "that which
precedes the nain businkss." The preunary expense in-
volved in the construction of the proposed tunnel 1s certain-
ly for countypurposes and 'that uhlch preced+ the main
buslnesa." . !\
The Supreme Court In Bexar County vs. &inn, (supra),
held that the holdiw Of d~Cion3 should be paId out of the
general fund and made no excoptlons where the election was
for the purpose of votLn$ county road bonds. The Cou.rt in
the Course of 3.t.s
opinion used the Sollow~ Z,anguaget
"30 far as is pertinent to this case, Section
9 of Article 8 OS our State Constitution provides:
I+ l ib no c o u nty + l l shall 1Cvy more than 254
for-*-* * county pupposes l l l on the $100.00
valuation, * l* .a e - -
a ^-
"It is too evident to admU of debate that~
the holding OF conducting of elections is a coun-
ty pu??posewl.thinthe meani% of the above quotsd
coaetitutional provIsion."
We can 968 I10 distln&ion as a matter of li%vbetween
the preliminary expense of holding an election Sop the purpose
of votlry county-wide road bonds and the expenses involved ln
the PrelimiIWy matters essential to be completed in order
that revenue bonds may be Issued for the purpose of construct-,
lng the proposed tunnel. There Qan be no question but what'
constitutional funds can only be used for the purposes for
vhich the tax levy was made. The Road and Bridge Fund can
only be used for the construction of roads and bridges. In
the event that the proposed pro'jectIs not finanoed and
revenue bonds not issued, no road or brLdge (If a tunnel is
a road or bridge) ~121 be built end certainly the preliminary
j zatters, such as taking c0res of formations; making traffic
i investigations to establish the soundness of the projects pre-
; paring necessqy preliminary design drawingsI prepariag draw-
1~3 and applications to be filed with the Unlted States En-
gineers; securing neceosary permits from the United States m-
gin88rs to build such project; preparing PrelininWi drawin s
and preparing easements to secure the approval of the Unite8
States tiny to perat the passage across the sn Jaclnt0 Reserv-
atTon; securing the passage of vopcr legislstion permittin&
8nE authorlzine;the construction of the project and the procur
ing of -vestment ba&ers who are able and WiuW3 t0 assume
- ‘, . .
..
.;’
. .
2. 141
xonorable I. Prodeck& page 9
the Smmcing of the cost 0r the project; tha eocurlag of
nscessary Federal or State permits, easements, ri@tts-of-
yz~y,lcases, cosnultmentsfor ln8urances; the nalclng of SW-
VOYB, soundings, drlvlng of test pilings; prbparatlon of
uorislrq drawings3 n?akingall specifications; fiiaklng of large
scale md full sized detailed draulngsj pmparatlon OS ap-
plications for Federal or State funds; drafting of Soms of
proposals and coustructlons and the preparation of the estb
jztos of quantities and Costa, canRot be considered a8 the
buildlug of a rood or a bridge.,
It is therefore ou??opinion that the comissioners’
court of Galveston County may authorize the payment of the
preliminary en&necrtng expenses ia oonmctlon with the pro-
posed Galveston-Bolivar %mzael out of the General Fund.
Our mior Opioion MO. O-543, dated April 4, 1939,
in 30 as 8&e
far is in coafllct herevith, Zs hereby express-
ly overruled.
In vlmf of ow answers to the above questions, YB
do not ‘believelt ~o~oaary to OMYSP your ,Wrd QuestLou,
Yoursverytruly
ATTORUEY
ff- OF TEXAS
d-4++-+
Ii,V. Geppert
, Assista*