                                                       .:GL                      r-
                             :..,    :     ~,. ..-

Honorable R. F, Bobinson   '. ':         ~' .."
thmty At+n?y
ltillaoy County                           .,
Raymcndville,~T&xaa   -~                       : ..        :   :   ~.

Dear Gil-r

                                Opinion ‘No; 0+7i9i .:.,     :. .:.
                            '; :,Ret‘.lYlay  9 Citywhich..had a.population of
                                     lese~than ~6.q +odovding:to the-last
                                  " Fede~l..Cnnbus levy'rrtax for tht3
                                   ':~oumt yoa+.df +ey ,thim.l~&'onthe
                                     ume?le’~p~opbrty     bf 6<oh’ 3ity'if the
                                   * city coinmissionfitiasas'e faot.that




the City in questSor:operates undei the'gene~al~~la~'end'hcsno &hart.er.
Its population,aocordiag to the last Federal C!nstisxas'undor 5,000.
ROWfJVe~~, the oity has had over 6,000 pop&tion for c'.l&g'timc'aad d
woent ee~u8 taken by order of the City Commi+or ~s4or:sa ,po+ation
of 7,54s.'

Article 1026, H. :., presaribes a Emit of 1% of~the taxable property
011the amount of tax that maybe levied by cj:ti.ns
                                                 and tows having a
population of 5,000 or less;

Article 1028, R. E., provides:

    "The gwrning   body of &iy Cityin this State having more than five
    thousand inhaSltant.s,unless otbei'wi8~eprovj.dedin its speoiaL
    oharter granted by the legisl,atura,bradopted by the people, shall
    have power by ordinaoe,to levy,assees and oolleot such taxes as
    such governing body may determine, not to exoeed for any one year
    two end one-half per‘tint of the taxable property of suoh oity,,for
    ourrent,e%penses and forthe purpose of ooe~structionor the purohase
    qf~publio buildings, water ",rks, 8ewer8, and other permanent
    improvements, a-i! for the .oonstiwotlonand impr&ement of the roads,
    bridge&&d   strcets'of such oii$, W$'+in ite li~mits."~

See also !CexasCanstitution, Artiole 11, Se&ion       5,
                                                                      -        .




                                                                     ,./
Honorable R. P. Robinson, Rage 2   0-7592.::   ,,.,..



In City of Qler v. Tyler Fhilding &~Loa.nb,sooiation,   81 S. I'?;
                                                                 2, the
Texas 9urpeme Court construed a statute euthoriting cities of over 10,000'
to levy a certain tax. L defendant in e tax suit urged that the city in
feet had less than 10,000 population. Ths court after quotj~ngfrom tine
statute, said: "This poxer depends upon the city having more then 10,000
inhabztants---a fact that must he asoertained beforethe tax is levied.
'Ihereis no method prescribed by the 6tatute.for dete,rminingwhen e city
has more than 10,000 .inhabitants,but; the'legislature ,heving conferred
upon the City Counsel pow&to   levy end oollect e.givec rate of tax,
conditioned upon the fact that the,.oityhas the requisite population,.
there is in the grant of power; based upon the:linitation of Ropu$tion,
an implied grant of euthority to ascertain the factsupon which the right
to levy the tax depends. Riggins v. Richards, 77 Si,K. 94G, 8 'Tex..,Ct.
Rep. 90@. Any reasonable an& suiteble method by which a city should
asotrtain the feats and make e reoord thereof,would be supported bythe
implied power expressly conferred.:'.The .C+rt.then stated that the question
of whether.the city aotually had.lO,OGO population could only be raised
.bya quo warranto proceeding,..:.~;.
                                :J:

In city of iWmer6vllla v., T&s -,Lpuisiana Power Oqmp&y;- 53, S; W. 2d    -
272, the oourt;oonstrued a statuteauthorizing cities of over 2,006
population to regulate utility ratesi The ~oity bed ever 2,OW .populstion
ecoording~to the 1920 census, b+t the utili- defendant charged-that the
1930 census, which had just .b+en~.oompleted,showed the populationto be
mider 2,000. 'IbeCourt said; ~~?W&thjnk itisreasonably apparentthat
the populationof the oitybr IXWI s@6the:.6ubject of this legisletive
enactment must be determined et .ths.time th+.particu&r oitJr'or,tOvm
attempts to exeroise the,delegeted~,powergranted by the'enaote&t. ??e
agree with ap@lent'b    seoond oontentiontlmt~ the ascertainment of tine
fact of,the requisite'population is committed to the governing bhdy~pf
the olty ortom   desiring to ~ewil itself~of:the provisions of Article
1119. Xhen a,goven%ng body eats under the provisions of such article!
it must be presume&that it did~determine the fact of the exibtence of the
necessary populstion, and suoh presumed findings can only be ettc&ed on
the ground of fraud, and that this ground must be both pleaded end Froven
by the party attacking the power.of 6x1~oity acting under the provisions
of Article 1119," the Court then stated that the issue of fraud was.raised
in this case.

The City of Tyler ease, supra, wae followed Ln a letter opinion written
by Assistant Attorney GeneraIDeonard, $ing.,-datedOctober 22, 1935, (Voi.
367, p. 979, Letters of Attorney General) which opinion construed the
same statute as was construed int,he..Cityof Tyler case and said: "In
enswer to your second question you ars advised~that the Courts of this
State have held that it is not neoessary to acoept the yederal Census in
arriving at the oorrect population of~a City, butto the,oontrary, have
held that the population of a oity should be determined at the time the
proposed ordinance is passed by the gove.rningboard of a city . . . It
is therefore olear thata city may determine.by census 'orotherwise the
population of a city for the purposs of enaoting an ordinance fixing the
rate to be oharged for light'and 'power."
Honorable R. F. Robinson, Page 3               O-7392



In Bell v. Kirkland, 41 S. V., 2d 443, error refused, certain partirs
opposing the formation of a rural high school  district raised a cuestion
as to the scholastic population of a school district, TheCourt held that the
statute imposed the d*ity of determining such soholastio population upon
the County Judge or the County School Trustees, end, in the absence of
fraud, suoh fact was not open to controversy.

Also   in   line   75th   the ebm   aUthOritie8,    see   30 Teei.&ar. 103.

Under the facts outlined by you, viethink ‘t” above authorities                 justify
the conclusion that the city in question is governed by the             terms of
Artiole 1028, R. S., and Fe aooordingly answer'yowquestion               in the affirma-   .
tive,

7% &sire to thank you'for the'vory helpfulbrief of the ,questionenclosed
in your letter of ~inquiry.
                    ,
                                        Ycurs very truly.
