                                                        R-404




                           April 30, 1947

Hon. Claud Gllmer, Chairman
Appropriation    Connnittce
Rouse of Representat lves
50th Legislature
Aust In, Texas              Opinion NO. v-172
                             Re :   Constltutlonalitg  of H,B.
Dear Sir:                           No. 779, 50th bgislature.
             We refer to your letter       of April 23, 1947,
wherein you advise that the House Appropriations             Com-
mittee has under consideration          the matter of making
an appropriation     of $30,000 for the relief       of the Cen-
terville    CommonSchool District        No. 42, in Trinity
County, Texas.      The proposed House Bill No. 779, as
amended, recites     that the school buildin        of that dls-
trlct    and its facilities     have been total f J destroyed
by fire,    the insurance recovered from the destruction
being wholly Inadequate for the replacing           of sams, the
property values of the district          renders it impossible
for the tax payers to increase the bonded Indebtedness
in an amount sufficient       to replaee said school,      and
that the cum which can be raised by the district             to-
gether vith the insurance monies recoverad by the dis-
trict are wholly insufficient         for the replacing    of said
school district.       Said  bill  also   contains  the following
public calamity     clause :

            “Sect ion 1.  The destructive    and dlsast-
      rous fire  that occurred on or about March 17,
      1947, aad which resulted      in the comp,lete des-
      truetlon  of the sohool building     of C&@tervllle
      Coranon Schoal District    Iie, 42, Rural Route 1,
      Qroveton, Trinity County, Texas,      Is hereby
      found aad declared to be a great public calam-
      ity in such school district,      as to require
      and authorlee the axpeaditurs      of public funds
      for the purpose of aiding hnd assisting         the
      population of said school district      in the re-
      plaoiag of said schoal house; and there la
      hereby appropriated     out of the Qeneral Revenue
      Fund of the State, not otherwise appropriated
Hon. Claud Gllmer,            Page 2, V-172


       the sum of Thirty Thousand ($30,000.00)
       Dollars,     or 80 much thereof aa may be nec-
       essary,    for the purpose of assisting   said
       Centerville     CommonSchool District   No. 42
       at Groveton, Trinity County, Texas, in con-
       d.;u;;~gna      school building and equipping
                  .
                You ask to be advlssd concerning                      the coastl-
tutlonallty       of the proposed bill.
             Article   III,           Sect ion 56,     Ooastltution          of Tex-
as,   provides,    In part,           as f’ollowsr
             %he bglslature   shall not, except as
       otherwlss provided IA this ConstitutiaA,
       pass any local or speolA1 law, authoricing
              the building or repnlriag  of schcol
       ~o~A&J, aTd the raising of money for such
       purposes. ’
                Article III, Seotloa            51, Oonstltutlon             of Tsx-
arr, provldoa,      In psrt I
              “Thr bglslature shall Inave no power
       to mak8 a&g grant o r luthorlAe th8 making
       of any grant of public money to any lndlv-
       id-ual, aaroolatloa of bdlviduals,   munlcl-
       Pal or other oorporatioar  whatsoever;  , , .
       and provided, however, that the provlaloncl
       of thl8 8eotlon sha,ll not be oorrrtrwd 80
       a8 to proveat         thy, grant of       Ald    in    01000     or
       PUbliO     OAlAlllitf,

                In Opialoa          No, V-111    thin D8        rtmeat       AdVlOed
thAt Artlola III, 8Aotlrn 56, brtlolr Vr brotlon 5, d
the t?o~rtltutlor A8d tb rtaablla lrglrirt 1Qn provldod
la Art lo18 27848; 2706 ARd 2788, 6. 0, be, ooatrmplrto
that the rehrol        d.lrtaiote        Ai TIXA8,
                                    Vhf1 YillAflOiAlly
OApAbk  of dOi&g 89  Ah@Uld  WeOt And brAr tk@ .Xp~nlO
of thr errrtiou of hrlr own relPoo1 bulldlngm And fro-
i%itkr,  And thAt th0 ~gi8~AtW0,   OXOOpt  i8 01101   8i
pub110 orlralt    Ao8Mg wlthlr tb rxorptlor    of hrtlolr
III, Soot loa 5I , of th aart it ut lon, 10 wlthout Auth-
ority to ~mlg am approprlat16n                  frt, the      oan8truotioA       of
o(811811on
       or lade~adomt dbtrlot                    sohoel       buildlag    or     fro-
1U.t 10s.       IA that    oplnlra,
                           we wor8 ooaelderlng    8, B,
60 OS th8 50th LgllllAtUr8, whloh COntAilPod no roOltA-
tlons of pub110 oalamlty, And la thAt respect H. B.
60 and our Opinion V-111 Are clearly  dlstlngulehod   from
the present P. B. 779 and thin oplnlen.
Hon. Claud Gllmer,    Page 3, V-172


            Under the provisions of the proposed House
Bill No. 779, as amended, there Is an expressed legis-
lat ion declaration  and finding that the disastrous
fire which resulted   in the complete destruction   of the
sohool building of Centerville   CommonSchool District
No. 42 is a great public calamity In such school dls-
trlct,  and that the property values in said district
render It impossible   for the tax payers thereof to ln-
crease the bonded indebtedness    in an amount sufficient
to replace such school.
            In Martin vs. Hldalgo County, 271 S. W. 436,
writ dismissed,    wherein was considered    a public cal-
amity enactment coming within the provisions        of Article
VIII; Section 10, of the Constitution,       it was held that
the Legislature    alone has the authorIt     to de~cide the
public calamity matter, and, having decided that the
emsrgencg existed,     no Court oould assail    such deter-
mination;   that the Constitution    permits the Legislature
to grant aid in cases of public calamity to subdivisions
of the State government, and that to the legislature          A-
lone is confided the power of deciding If such public
calamity exists s It was never intended that the prop-
riety of such legislation      should be the subject of ln-
vest igatlon and attack by an individual.        On the other
hand, it has been held that a Court may go behind a
legislative   iinding or declaration    of public calamity
In those cases where as a matter of law the facts found
or considered    by the legislature   do not oonstltute     a
 “public calamity”.     Jones vs. Willlams,    45 9. W. (26)
130.

            Under a former administration,     this Department
held In Opinion No. O-941, June 12, 1939, that a similar
Bill to replace a school house destroyed by storm was
authorized   under the public calamity clause of 940.     51
of Art lcle III of the Const ltution as an exception     to
the provisions   of ~ec s 56 of Article   III.
            Our Opinion No. V-111 holds that only in cas4s
of public   calamity can the Legislature     make an approp-
riation,   and even then there is still    the question of
whether its enactment by special      law violates    Sec. 56
of Article   III of the Coast ltut ion.   Frankly, this of-
floe is, sharply divided on two questions      relating   to
the oonstltutionallty   of Ii, B, 779, and they are aa
follows :
Hon. Claud Gilmer,      Page 4, V-172


            1. Whether, as a matter of law, the
      burning of a single school house can constl-
      tute a public calamity within the manlng
      of Sec. 51, Art. III?
            2.   Even if
                       such facts could constitute
      a public   calamity,do they constitute an ex-
     ception to Sec. 56, Art. III, forbidding    spec-
     ial Acts for rebuilding   and financing school
     houses?
            The courts have not passed on these exact
questions,   and In view of the division     of opinion with-
in our own office     on the subject, we elect to follow
the former opinion of this Department (O-941) and the
Leglslatlve   Interpretat ion placed on these provisions
of the Constitution     in at least thirteen   Instances.
See : Acts 1929, 41st leg.,      2nd C S., 9. B. 195 Acts
1929, k&t,Ls,p.,    3rd C. S., B. B, 6; Acts 1931, 42nd
w.9                 9. B. 8; Acts 1931, 42nd Iag       3rd
         9. B: li:  9. B. 12 and H, B. 62; Acts i$35,
                         B. 510, H. B. 763, 5, B..309,
                         and H. B. 576; Acts 1941, 47th
Lag., R. S., B. B.
             In those Instances,      the 41st, 42nd, 44th and
47th Ieglslature     passed similar Bills for the rebuild-
ing of school houses destroyed by fire,           storm, hurrl-
cane, earthquake, etc.       Departmental and Leglslat lve
Interpretations     of constitutional     provisions    are always
given due consideration      by the courts, and doubts are
resolved in favor of the constitutlonalitg            of an Act
of the Legislature.
          Based upon such previous constructions,   we
find that H. B. 779, if enacted as amended, would not
violate the provisions  of the Constitution  of Texas.               .



             Based upon former Departmental and Legis-
      lative    interpretations,      H. B. No. 779, 50th
      kg.,    a  special    law  providing  an appropriation
      for the erection       of a school house for the
      Centerville     CommonSchool District      No. 42,
      Trinity County, if enacted as written,          with
      bgislat    ive f lndlng of “public calamity”
.




    Hon. Claud Gilmer,   Page 5, V-172


         (fire)  causing destruction,   would not be
         unconstlt ut Ional.   Sec. 51, Art. III, Tex-
         as Constitution;    Opinion Ho. O-941, June
         12, 1939, distinguished    from Opinion No.
         v-111.
                                  Very truly   yours,

                              ATTORNEY GENERAL OF TEXAS


                              By e--P-
                                     Chester E. Ollison
                                                Assistad




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