c-   -




                                                       March 27, 1939


         Honorable E. S. Foreman
         County Auditor
         Jefferson County
         Beaumont, Texas
         Dear Mr. Foreman:
                                   Opinion No. O-37
                                   Rei Legality of expenditures
                                       'from County Permanent Im-
                                        provementFund for'Pre-'
                                        .organization'~expense:of'a
                                                                  Wa-
                                        ter Control and ~Improvement
                                        District
              We have~.yourletters of Pebru~ry'21%t;.requesting an'
         opinion from'thls Department, and your letth  of.March 9,
         1939, written In answer to our letter of March 7, 1939, re-
         questing additional information.
              The factsstated by you in your letters, and t%
         Instruments attached; are brieflyas followst"
                                     :   ..,,,
              ('JeffersonCounty haswhat is'known as its' '~
             permanent Improvement fund, and that the Jeffer-
             son County Water Control and Improvement District
             No. 2 is undertaking to organize under and by
             virtue of Chapter 39, Title 128, Article 7880,'
             etc., R. C. 9. 1925. During the period ~fromJuly
             25 to December 12, 1938, the CommisaFoners' Court,
             as a loan to Water Control and ImprovementDistrict
             SabFne, Sabine Pass,,Texas, paid the following Ftems
             out of the County's~Permanent Improvement Fund:
             7-25-38 F. T.~FletcherCoY    (BondBrokers) $5;0 o. i,
                      retalnlng fete                         .
             g-12-38 ,,Geo.L. Howell; Attorney,,,Legal,:~
                        services                          250.00
             10-20-38 State Boards of Water Engineers""~
                       of,State of Texas-filing:fees      250.00
             11-15-38 5eo. L..Howell, Attorney-,Addi;
                       tional Fees ,andExpense            169~:OO
                                                            .




Bon. E. S. Foreman, March 27, 1939, Page 2 (o-37)


    11-20-38 J. W. Summerville, Engineer' - Expenses
             attending Meeting St. Bd. Water Engi-
             neers, Austin                          59.31
    11-28-38L. Welch,Co. Commissioner- Expenses
             attending meeting                      59.50
    12-12-38 Geo. L. Howell, AttOrneg - Attorney
             fees and Expenses                     530.00
    12-12-38 L. Welch Co. CommissFoner - Expenses
             attending Meetina of St. Bd. Water
             Engineer;, Austin

 On January 30, 1939, the Commlssloners~ Court made
and entered its order designated as a nuncpro tune
order undertaking the ohange the orFgina1 amounts
paid as loans from loans to Water Control ahd Im-
provement District Sabine, Sablne Pass, Texas, and
to make it a direct payment for the purposes men-
tioned.
 The copy of the nunc pro tuno orderenclosed with
your letter, states that the-orders approvingthe
claims set out above were passed atinformal meetings
of the Commissioners' Court, but that when they were
written up and entered in the Minutes of the'court,
though Inadvertence and through'errbr, they reflected.
that the payments were made as a loan to-the District,
whereas, ,in fact, the orders actually passed at the
meeting provided for direct payments and hot loansfor
and'to the District, and that same were made under the
provisi.ons.ofArticles 2351 and 6831;,R. C. S. 1925,
and Article XI, Section 7, and Article V., Section 18,
of the Constitution of the State of Texas.
 The order nunc pro tune further states-'that'
                                             the com-
munities of Sabine and Sabine Pass in Jefferson County,
Texas, are wholly without protectFon from excessive
tidal and flood waters, and are sufferingfrom~an
Inadequate supply of fresh water for domestic and cvm-
mercial use, which creates a condition dangerous to
the publichealth of the people in that area, and that
the Commissioners' Court, being of the opinion that the
condition should be remedied in the most practical and
economical manner, thinks Jefferson County.should bear
&E;;t of the expense necessary to establish, locate,
       construct, extend, protect, ~strengthen,maintain
and kiep in repair, and otherwise improve a.seal wall,
breakwater, levee, dike, floodway and dralnwag necessary
to prevent floods from excessive tFda1 and storm waters.
L




    Hon. E. S. Foreman, March 27, 1939, Page 3,(0-x7)


             Your letter states that the information sought by
    you is as follows:
             "(1): Under the Statutes and Constitution
         of Texas, the Statutes as above recited and the
         Constitution, Article 8, Section 9, can the Com-
         missioners' Court legally appropriate eFther.as a loan
         or as a direct payment of the indebtedness necessary
         to the organization,of the Water or Drainage District.
             "(2): If your answer to the above questionis
         that they may legally pay or loan for said purposes,
         then the question is settled. On thecontrary, if-you
         say that they cannot pay or loan, then please answer
         t~hefollotiingquestion:    _i
             "Can the Commissloners~'Cvurt legally pay said
        amountsas above stated by entering the'Runb~Pro'Tunc
         order as was done In this case by simply chahglng,
         or stating the purposes forwhich the money was paid,
        .as'recitedJ.n the nunc pro.tunc..order~;.a
                                                  copy vf,.whJch
         is;~attachedhereto..,I have,been referred~tomArt1c:l.e
                                                              ~
         8,~Seotion 9 of the Constitution of the State,,
                                                       of
        ??e,;;s~C~arrollv; Williams,'202 S. W. 504; ArtFcle:.'
                    As I am an auditor and not a lawyer I.
         ask youio please advlse.whether or'not~the case.of~
        .CarrollvL Williams above referred to is decisive~.:.:=
         in this.,
                 matter."    ~                   .,        c,
             The Constitution of the State of~Texa8, Article VIII,
    Section 9, provides as follows:
              )I*.** no 'county, city'or toim~shalllevy  :
         q :ore.thantwenty-five cents for d.ltyor county
         purpbses, and not exceeding filteen cents. for '.~~
         roads and bridges, and,not,exceedFngfLfteeh cents
        to pay jurors, on the.one hundred dollars valu~ation;
         except for the payment of debts'incurred prior to .,~
         the adoption of the amendment September 25th, 1883;
         and for the erection of public buildcn@;,'streets,'
         sewers, waterworks 'and'otherpermanent.improvements,
         not to exceed twenty,-fivecents on the one hundred
         dollars valuation, in any doneyear, and.except'as
         is in this Constitutionsotherwise.provided.;~*~**."
             It Is elementa&.~that money,realFzed from taxes can-
    not be spent except forthe express'o??necessarily'lmplled
    purpose or purposes for which It was raised. Carroll v. Williams,
Ron. E. S. Foreman, March 27, 1939, Page 4 (o-37)


109 Tex. 155, 202 9. W. 504.
         You state that the money spent in the instant case
was from the permanent Improvement fund of Jefferson County.
The nunc pro tune order of the Commlsslonersl Court sought to
bring the district and expenditures within Article 6830, R.C.S.
192.5,Acts 27th Legislature, First Called Session, 1901, Ch.12,
p. 23, as amended by Acts of 39th Legislature, Regular Session,
1925, Ch. 96 p. 270, and which authorizes the county com-
missioners' court of all counties bordering on the coast of the
Gulf of Mexico to locate, erect, keep inrepair and improve
any sea wall or breakwater, levees, dikes, floodways and draln-
ways, and to levy a special tax for same;-this Article enacts
into law Article XI, Seotion 7'of the Constitution of the State
of Texas. Jefferson County has levied no such tax and has no
such fund. Even though the district and exbenditures were
within Article 6830, it would not follow that the expenditures
could belegally made from the permanent improvement fund.
        The questions to be determlned'~beforeanswering your
inquiry are, first, whether or not.the-water control and
Improvement district proposed to-be organized,~under the cir-
cumstances and for the purposes setout in-ybur letter, the
order of the Commissioners1 Court and the statutes, is a per-
manent improvement within the cvntemBIatlon of Article VIII,
Section 9 .of the Constitution; and;'second; whether or not the
expenditures enumerated above come within'the term "ereotion'
as used in said article and se&ion of the Constitution.
         Under the rule of statutory and-constitutional con-
struction known as the doctrine of ejusdem-generis, general
words following an enumeration of particular or specific things
will be confined to things of the same kind. 39 Tex. Jur. 202:
R. of W. Oil Co. v. Gladys City 0. Go.6M.Z Co. 106 Tex. 94.
In other words/ if the framers of the Constitution had intended
that the term 'other permanent imprbvements should be all
inclusive, they would not have proceded'it'with the particular
terms "public buildings, streets~,sewers, waterworks", but
would have merely provided that a'tax could be levied for the
erection of permanent improvements.
         It is the opinion of this Department that the
JeffersonCounty Water Control and ImfirovementDistrict Num-
ber 2 is not a permanent improvement within the'meaning of
Article VIII, Section 9 of the Constitution, that the taxes
constituting the permanent Improvement fund of Jefferson County
Bon. E. 9. Foreman, March 27, 1939, Page 5 (o-37)


were not levied and collected for that purpose, and that,
therefore, they cannot be spent for the items set forth here-
inabove, consisting of certain pre-organization expenses of
such district.
         The permanent improvement fund of a county has a
further restriction upon its expenditure, that is, that it
must be spent for the "erection of buildings, streets, sewers,
waterworks and other permanent improvements", because the'
taxes composing it are assessed, levied and collected for such
"erection." The expenditures outlined in your letter and
contained in the nunc pro tune order of the Commissioners'
Court are for legal services, payment of the filing fee of the
petition for the district with the State-Board of Water Engl-
neers, and for a retainer to a bond house. It is the opinion
of this department that these expenditures do not come within
the term "erection" and are not expenses of "erection" of a
permanent lmproveme;lt,and that, therefore, they are illegal.
         The answer to your first questloh being that the
expenditures are Illegal and should not have beenmade, it is
not necessary to answer your second question.

                                Yours very truly
                          ATTOBNEYGENERALOF      TEXAS


                           By   /s/James Noel
                                    James Noel
                                     Assistant
JN:BT:SC
APPROVED:
/s/W. F. Moore
FIRST ASSISTANT ATTOBNEY GENERAL
