     1’1.   .




           GROVER SELLERS                    AUSTIN    1,. TECXAS
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        Arn”_NnnY“xcN”R.4,*




                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
