Mr. Jack N. Fant                Opinion No. WV-1423
County Attorney
Room 201                        Re:   Whether certain lots and
City-County Building                  the permanen.timprovemen~ts
El PL~SO,Texas                        and per;onul propertie.-
                                      thereon are exempt from
                                      ad valorem taxe.;as b)pui3-
Dear Mr. Fant:                        lit library.
     You have asked the opinion of the Attorney General as to
whether certain town lots in the City of El Paso, Tex-i~,
                                                        .ind
the permanent improvements thereon together 1~3ththe personal
properties therein are exempt from Texas ad valorem taxeu.
     Such exemption is claimed by the owner of theiieproperties
on the basis that the properties are a public library and exempt
from ad v-aloremtaxes by Article 7150, subd. 8, Vernon's Civil
Statute; which is as follows:
             "The following property shall be
          exempt from taxation, to-wit:
          8.' Public libraries. -- 9.11public
          libraries and personal property be-
          longing to the ;:cme."


                       PERTINENT FhCTS
A.   The Real Estate and Improvements
     The real estate in yue.,tionis lots 17, 18, 19 and 20 in
block 69 of Franklin Heights Addition to the City of El Paso,
Texzs. This realty, in the aggregate, fronts 100 feet on Mon-
tana Street and is bordered on one side by Brown Street to a
depth of 120 feet. The property is zoned a3 apartment. Im-
provement, consist of a -t:'io+tory
                                  building (constructetia.ja
private dwelling) with a full basement; the building is ap-
proximately 56 feet by 49 feet in size. On the rear portion
of the tract of land is a two-story combination garage and
servant 1j quarters. The improvements are approximately fifty
years old and are not modern, though they have been remodeled
to some extent to meet the needs of the present owner and user.
Mr. Jack N. Fant, page 2                  Opinion No. W-1423


     The market value of the realty and permanent improvements
has been appraised at $42,200.
     This property is at a location which is conveniently ac-
cessible to the public as a library.

B.   Ownership of the Properties under Consideration
     Title to the realty and permanent improvements is vested
in fee in the El Paso County Medical Society, a private Texas
corporation which is now subject to the Texas Non-Profit Cor-
poration Act. The purpose clause of the charter of this cor-
poration is as follows:
              "The purposes of this corporation
           shall be to associate in a single body
           the duly licensed and regular practi-
           tioners of medicine in El Paso County,
           Texas, for the purpose of promoting
           medical knowledge, elevating the stan-
           dard of medical education, encouraging
           free intercourse among its members, and
           inculcating principles of professional
           ethics orotectinn its members against
           impositions, establishing a library for
           the use of its members, dispensing char-
           ity among the worthy sick, and assisting
           in upholding and enforcing the laws en-
           acted to protect the public against any
           who may offer to practice medicine in
           violation of the laws of the State of
           Texas." (Underscoring added).
     The realty and improvements have vested under the terms
of the will of S. T. Turner, deceased, who devised the property
to the El Paso County Medical Society, its successor or succes-
sors,
             I,
              . . . to use as a club house, li-
          brary or any other useful purpose to
          which they may from time to time de-
          sire to appropriate it, to be known
          as the Turner Home of the El Paso
          County Medical Society."
c.   Facts Pertinent to the Operation of the Property as a
     Public Library
Mr. Jack N. Fant, page 3                  Opinion No. NW-1423


     Tne following more pertnent   and controlling facts have
been furnished by you:
             "1. Floor Space 7248 Square Feet.
          4 rooms and hall on each floor.
             "1st floor: Library Space 48 ft
          by 174 ft. Hall 52 ft by 12 ft.
          Reading Room 25 ft x 17 ft.
             "Kitchen and two pantries 27 ft
          by 17 ft. Powder room and storage
          room 4 ft by 17 ft.
             "2d floor: Assembly room 52 ft
          by 17+ ft. Hall 52 ft by 12 ft.
          Ladies Lounge, bath and closet 25
          ft by 17 ft. Storage rooms 27 ft
          by 17 ft.
              "Rasement: Furnace room. Storage
          room for books and periodicals 884 Sq.
          ft. Hall 624 Sq. ft. Storage rooms
          used by the City Museum 52 ft by 17+
          ft.
             "2. About 1945 sq ft used for li-
          brary. 1265 sq ft for material and
          reading room. 680 sq~ft used for star,-
          age. Librarian's office is in the li-
          brary proper. About 2,000 sq. ft used
          by City Museum for storage. (This is
          donated by the Society.) Kitchen and
          pantries, furnace room and halls.
             “3.  The El Paso County Medical
          Society meet once a month fr,om6 p.m.
          to 9 p.m. The Ladies Auxiliary meet
          during the winter months from 10 a.m.
          to 12~30 p.m.

             “4.   The library is used by students
          from Texas Western College, the general
          public and doctors. The public and stu-
          dents use it more than the doctors. It
          is opened from 1 to 5 p.m. Monday thru
          Friday.
Mr. Jack N. Fant, page 4                 Opinion No. NW-1423


             “5*  The library has never been closed
          to the general public since it was origi-
          nally opened over 10 years ago.
            “6 . The librarian does not hold a
         degree in library science. The El Paso
         County Medical Society pays her $150.00
         monthly. Hours are from 1 to 5 p.m.
         Monday thru Friday. The librarian takes
         care of the telephone for the Medical
         Society, keeps up with the membership
         and dues. This would require about one
         hour an afternoon,
             “7.  The library is located on a
          corner lot and the grounds are used by
          the puclic when needed.
              “8
               D  Four years ago, all of the out-
          of-date books were discarded and they
          have been replaced with up-to-date later
          editions. A few of the old books were
          kept. At the present time, about 20% of
          the books are out of date except for his-
          torical purposes and most of these have
          definite historical value. The periodi-
          cals are kept up-to-date with no missing
          issues.  When the periodicals are bound,
          if there are any missing issues, they
          are replaced to make the bound volumes
          complete."

             9.  You state that the usual library
          indices and cross references are avail-
          able and that the books are catalogued.

             10. You state that the property is
          "centrally located in an ideally acces-
          sible location".
             "11. Several people besides the
          doctors come in every afternoon be-
          tween 1 and 5 and use the library
          material. The library is used prin-
          cipally by students in olurlocal col-
          lege and high schools. Some other lay-
          man use it.  The doctors themselves use
          it least of all. It is very difficult
Mr. Jack N. Fant, page 5                 Opinion No. WW-1423


          to say what percentage of the library
          material has been used by anyone other
          than doctors within the last year. It
          would probably be about 25% (doctors'
          use) but this is a rough estimate.
             "12. The library has been adver-
          tised at our local college, Texas Wes-
          tern College. The Chairman of the
          Biological Sciences Department there
          has made this known to the students
          by verbal announcements and by a notice
          on the bulletin. The Public Library
          also sends many students to our medical
          library. Only the Public Library is
          advertised in the Yellow Pages of the
          Telephone Directory."

                           II.
        OUR OPINION BASED ON THE FOREGOING FACTS
     Our opinion is that neither the realty, permanent im-
provements nor personal properties under consideration are
exempt from State ad valorem taxes by reason of being a pub-
lic library.
     The pertinent constitutional provision which authorizes
exemption of the kind of properties under consideration is
Article VIII, Section 2. The relevant portion of this article
reads as follows:
             II     the legislature may, by
          generai iaws, exempt from taxation
          public property,,usedfor public
          purposes; . . .
     .Article7150, subd. 8, V.C.S. effects the permissive
exemption authorized by Art. VIII, Sec. 2 (supra) as to pub-
lic libraries in the following language:
            "The following property shall
         be exempt from taxation, to-wit:
         6.' Public
             *      libraries. -- All
         public libraries and personal pro-
         perty belonging to the same."
Mr. Jack N. Fant, page 6                 Opinion No. WW-1423


     Tne constitutional provision requires that a public li-
brary to be exempt must be, first, "public property", and
second, that the public library properties must be "used for
public purposes".
                           1.
     We first consider whether the realty, the permanent im-
provements thereon and the personal properties comprising the
library   and its furnishings are "public property" within
the meaning of Ar'ticleVIII, Sec. 2 of the Constitution. "'he
early case of Saint Edwards College v. Morris, Tax Collector,
82 Tex. 1, 17 S.W. 512 (1891) considered that portion of Art.
VIII, Sec. 2 of the Constitution which we now have under con-
sideration (which was in the identical language as now). With
reference to the nature of property as being "public property
used for public purposes" the Court stated:
            "It can not be claimed that the
         property of appellant is public pro-
         perty used for public purposes, for
         to give it such character it is be-
         lieved that the ownership should be
         in the State or some of its munici-
         pal subdivisions, and it may be that
         its use would have to be not onl?
         under their control but for a pur-
         pose for which the State or such muni-
         cipal subdivisions are authorized to
         use property held by them for the
         benefit of the public." (Underscoring added).
See also Texas Turnpike Company v. Dallas Count&   153   Tex.   474,
271 s.w.2d 400 (1954).

     We are aware of the statements of our Suprem? :ourt with
reference to this Art. VIII, Sec. 2 of the Constitution made in
     erty, Tax Collector v. Thompson, 71 Tex. 192 9 S.W. 99
     ) wherein the Court stated
            "That section of t:~ie
                                 Constitution
         seems to apply to property owned by
         persons or corporations in private
         right, but which, from the use to
         which it is applied, is, in a quali-
         fied sense, deemed public property."
Mr. Jack N. Fant, page 7                 Opinion No. WW-1423


Later in that same case the Court reitterated this statement
in the following language:
             “As before said, section 2, art.
          8, of the constitution, gave to the
          legislature the power to exempt
          property held in private ownership,
          but used for purposes which give to
          it a public character.”
     This latter quotation from Daugherty v. Thompson is
quoted in Lower Colorado River Authority v. Chemical Bank and
Trust Co., 144 Tex. 326, 190 S.W.2d 48 (1945) (at page 51).
     We reconcile these apparently contradictory statements
by our Supreme Court in the following manner. The Daugherty
case (supra) considered the taxability of school lands belong-
ing to Frio County which were under a ten-year lease to an in-
dividual. The quoted statements from that case were made with
reference to ownership of the lands by Frio County. In that
respect the lands considered were owned by Frio County in its
own private right. While these lands were public in that they
were owned by the county, a political subdivision of the State,
they also were private in that they were bne property of Frio
        a public corporation. The case of Coyle v. Gray, 7 Houst.
E%'Atl.     72'8 (court of Errors and Appeals of Delaware L-law
co;rt of last resortJ 1884) makes this distinction clear where-
in the Court said:
             ,1
              . . . The inhabitants of a city,
          who are in fact the corporators under
          a charter creating a municipality, are
          a portion of that general public which
          constitute a state. And they are also
          that particular public which consti-
          tute a municipality. The municipality
          may hold property in which all the in-
          habitants of a state or of a county may
          be said to have an interest in some
          respect, but not as owners or proprie-
          tars. And it may also hold property
          in which the inhabitants of the muni-
          cipality alone may properly be said
          to have an interest. Both classes of
          property are public, -- the one, as
          to the people of the whole st,ateor
          county; the other, more particularly,
          as to the inhabitants of the munici-
          pality . It is only in this sense
Mr. Jack N. Fant, page 8                Opinion No. WW-1423


         that the words 'public' and 'private'
         can with propriety be applied to such
         property, when held by a municipality.
         Although the property held for the
         municipality is in fact public, as
         common to all the inhabitants of a
         city, it nevertheless may justly be
         said to be private property, as being
         such property as is exempt from being
         taken or applied to any other public
         use by the state, or by authority of
         the state, without compensation being
         made." (at P. 733).
     We believe the same interpretation was meant in Lower
Colorado River Authority v. Chemical Bank and Trust Co.,
(supra).
     Our State Constitution nowhere provides for the exemption
from ad valorem taxes of property which is privately owned
although used for public purposes. The Legislature could not
by Art. 7150, subd. 8, (supra) convert private property used
as a publlc library into public property. In Texas Turnpike
Company v. Dallas County (supra) the Court stated:
              If
               . . . Public cwnership, for tax-
           exemption purposes, must grow out of
           the facts; it is a legal status, based
           on facts, that may not be created or
           conferred by mere legislative, or even
           contractual, declaration. , . .'
           (at p. 402).
The following quotation from Davis v. City of Atlanta, 206 Ga.
652, 58 S.E.2d 140 (Ga.Sup. 1950) very clearly states this
principle.
             "Under Board of Trustees v. City
         of Atlanta, 113 Ga. 883, 39 S.E. 394
         154   L.R.A. 806J, the fact that pri-
         vately owned property is devoted ex-
         clusively  to a public use does not
         thereby make it public property so
         as to exempt it from municipal ad val-
         orem taxation. Indeed, not even leg-
         islative  enactment can make it such
         nor so exempt it. In that case the
         court held unconstitutional an act of
         the legislature which declared that
.   .   .




            Mr. Jack N. Pant, page 9                 Opinion No. WW-1423


                      armory property shall be public pro-
                      perty and exempt from municipal and
                      other taxation.
                         "In that case the court said:
                      'It is claimed . . . the property is
                      used exclusively for public purposes
                      in maintaining the military company
                      known as the Gate City Guard, which
                      is a part of the regular volunteer
                      milltary.forces of the state. That
                      private property is used exclusively
                      for public purposes does not change
                      the nature of the property, or the
                      title thereto, so as to convert it
                      into public property. . . . Private
                      property cannot be converted into
                      public property by the simple de-
                      claration of the general assembly;
                      and especially is this true when
                      the purpose of the declaration is
                      to relieve private property from a
                      burden which the constitution says
                      in unmistakable terms shall be borne
                      by it for the benefit of the public."'
            See also Attorney General Opinion No. O-1621 (1939).
                 We believe the law Is settled to the effect that real
            estate and the permanent improvements thereon and personal
            property therein to which neither the State nor any of its
            political subdlvisions nor agencies nor representatives have
            any title, nor right of control under any form of grant vest-
            ing In any such public entity a right of control over said
            property, can be "public property" within the meaning of Art.
            VIII, Sec. 2 of our State Constitution. As to the library
            properties under consideration, the public has only access,
            and that at the sufferance of the El Paso County Medical So-
            ciety as its invitees. We have fcund no authority, in Texas
            or in any other jurisdiction of the:United States, which would
            authorize property to which the public has this type of access
            right only to be qualified as being public property for pur-
            poses of being exempt from taxation.


                 The properties in question must be "used for public
            purposes" as provided in Art. VIII, Sec. 2 of the Constitu-
            tion (supra).
Mr. Jack N. Fant, page 10                Opinion No. WW-1423


     As to whet.hera particular usage is a public purpose-
within contemplation of the above constitutional provision
must be determined in each l.ncldenceuwon the warticular
facts. In Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d
1033 (1934) the Court stated:
             "In discussing what is a public
          purpose, McQulllin on Municipal
          Corporations (2d Ed.) vol. 6, p. 292,
          sec. 2532, says: 'What is a public
          purpose cannot be answered by any
          precise definition further than to
          state that if an object is beneficial
          to the inhabitants and directly con-
          nected with the local government it
          will be considered a public purpose.'"
Again, in the case of A & M Consolidated Independent School
District v. City of Bryan, 143 Tex. 348 184 S.W.2d 914 with
reference to publicly owned property being used for a public
purpose, the Court stated:
             "The property in question appears
          to be used for a public purpose. It
          is used primarily for the comfort and
          welfare of the people, and all the pub-
          lic has the right to use it under rea-
          sonable and uniform regulations."
          (at p. 916).
     However, the Courts have also well established what is
not a public purpose. The following two authorities are typi-
cal:
            "It Is not all things which an-
         swer a public need or fill a public
         want that it is within the authority
         of the State to furnish for the people's
         use or support at the public expense."
         Waples et al v. Marrast, 108 Tex. 5,
         184 S.W. 180 (1916).
            "It is well settled that there
         must be a general public --
                                  right to
         a definite use of the property, as
         distinguished from a use by a pri-
         vate individual or corporation which
         may prove beneficial or profitable
. .   *




          Mr. Jack N. Fant,,page 11               Opinion No. W-1423


                    to some portion of the public,"
                    (emwhasis added'1. RIver & Rail Termi-
                    na,ls,TV. Louisiana 'Ry. & Nav. C0.9
                     71 L   223    5   0.    7 (La.Sup.
                    :930)aiP. 340;.
               The specific limited exemptions stated in Art. 7150 V.C.S.
          make certain the proposition that not the use only of properties
          which promote the welfare of the public Is a public purpose
          which will exempt those propertles from ad valorem taxes. The
          following usages of portions of the land and improvements under
          consideration do not comport with the use of property for a
          public library: (1) the two-story combination garage and
          servants quarters, (2) about one-fifth (l/5) of the time of
          the librarian spent in taking care of the telephone for the
          Medical Society and keeping up with the Society's membership
          and dues, (3) space used for storage by the City Museum and
          (4) meetings by the El Paso County Medical Society and its
          Ladies' Auxiliary;
                Without a doubt; the library facilities furnished arc
          of benefit to the public; but the law is ~~11 se~ttledthat
          not all benefits to the public are recognized in law as being
          for public  pu.rposesin considering the properties a3 being
          tax exempt. Our opinion is that the El Paso County Medical
          Society may not voluntarily and gratuitously ?,rdin it:>own
          private capacity make availnblc to the public the bencflt;
          of it; library and thereby zlnkcthe librc?ryexeinptfrom zcj
          valorem taxes.


                    The properties owned by the El Paso County
               :$edicalSociety furnished by it voluntarily to
               the public as a public library, but to which
               the public has access only at the sufferance
               of the Society as its invitees, are not exempt
               from ad valorem taxes as a public library un-
               der Art. 7150, subd. 8, V.C.S. as "public pro-
               perty used for public purposes" within contem-
               plation of Art. VIII, sec. 2 of the Texas Con-
               stitution.
                                             Yours very truly,
                                                               , ,




Mr. Jack N. Fant, page 12                Opinion No. WW-1423




                                    BY




APPROVED:
OPINION COIXMITTEE
Morgan Nesbitt, Chairman
L. P. Lollar
Robert A. Rowland
FXVIEWED FOR THE .ATTORNEYGENERAL
BY: Leonard Passmore
