. .   -




                        F,.~~ORNEY             GENERAL
                                    OFTEXAS




          Honorable R. V. Ragford
          County Auditor
          Rusk County
          Henderson, Texas
          Dear Sir:                  Opinion No. o-3211
                                     Re:  Purchase of land for airport out
                                          of county general fund.
                    Reference is made to your letter of February 23,
          1941, requesting the oplnlon of this Department upon the
          following questlon:
                    93oea the CommFssioners' Court have the
              authority under Section 15 of R.C.S. 2351-,Pow-
              ers and Duties of Commissioners' Court, and Art.
              1269h R.C.S. to purchase up to 640 acres of land
              for an airport fn Rusk County, out of the current
              general fund revenues or is it mandatory for
              the court to call an election and issue bonds to
              pay for this tract of land If the election carries.
                    "We are going under the fact that the county
              has the money in the general fund and is able to
              pay for the 640 acres."
                    Article 1269h, Vernon's Annotated Civil Statutes,
          reads as follows:
                    "Sec. 1. That the governing  body of any ln-
              corporated city in this State may receive through
              gift or dedication, and is hereby empowered to acquire
              by purchase, without condemnation or by purchase
              through condemnation proceedings, and thereafter maln-
              tain and operate as an Air port tracts of land, either
               within or without the corporate limits of such city
              and within the county in which such city is situated,
              the land acquired and held by any such city never
              to at any one time exceed six hundred forty acres, and
              the Commissioners' Court of any county may likewise
              acquire, maintain and operate for like purpose tracts
              of land within the limits of the county, not to exoeed
              at any one time six hundred forty acres.
HC norable   R. V. Rayford, page 2       0 -3211


          Y3ec. 2. For the purpose of condemning or
    purchasing elltheror both, lands to be used and
    maintained as provided In Section 1 hereof, and
    improving and equipping the same for such use,
    the governing body of any city or the CommFssloners'
    Court of any county, falling within the term3 of
    such Section, may Issue negotiable bond3 of the
    city or of the county, a3 the case may be, and
    levy taxes to provide for the interest and slnk-
    ing fund3 of any such bond3 30 issued, the author-
    ity hereby given for the issuance of such bonds
    and levy and collection of such taxes to be exer-
    cised in accordance with the provisions of Chapter
    1 of Title 22 of the Revised Civil Statutes of 1925.
          "Sec. 3. Any Air Port acquLred under and by
    virtue of the terms of this Act (art. 1269h.)
    shall be under the management and control of the
    governing body of the city or the Commissioners’
    Court of the county acquiring the same, which is
    hereby expressly authorized and empowered to im-
    prove, maintain and conduct the Same as an Air
    Port, and for that purpose to make and provide
    therein all necessary or fit improvements and
    facilities and to fix such reasonable charges
    for the use thereof a3 such governing body or
    Commissloners' Court shall deem fit, and to make
    rules and regulatlons governing the use thereof.
    All proceeds from such charges shall be devoted
    exclusively to the maintenance, up-keep, improve-
    ment and operation of such Air Port and the fa-
    cilities, structures, and improvements therein,
    and no city or county shall be liable for ln-
    juries to persons resulting from or caused by
    any defective, unsound or unsafe condition of
    any such Air Port, or any part thereof, or thing
    of any character therein or resulting from or
    caused byanynegligence, want of ski.11,or lack
    of care on the part of any governlng Board or
    Commissioners' Court, officer, agent, servant or
    employee or other person with reference to the
    constructIon, improvement, management, conduct,
    or maintenance of any such Air Port or any struc-
    ture, Improvement, or thing of any character what-
    ever, located therein or connected therewith.
          "Sec. 4. That in addition to and exclusive
    of,any taxes which may be levied for the interest
    and sinking fund of any bonds issued under the
    authority of this Act (Art. 1269h.) the govern-
Honorable R. V. Rayford, page 3        o-3211


    ing body of any city or the Commissioners' Court
    of any county, falling within the terms hereof,
    may and is hereby empowered to levy and collect
    a special tax not to exceed for any one year
    five cents on each One Hundred Dollars for the
    purpose of improving, operating, maintaining and
    cbnductlng any Air Port which such city or county
    may acquire under the provision of thL3 Act (ARt.
    1269h.), and to provide all suitable structures,
    and factlllties therein. Prbvlded that nothing
    in this Act (Art. 1269h.) shall be construed as
    authorizing any city or county to exceed the
    limits of indebtedness placed upon it under the
    Constitution."
          Section 9 of Article 8 of our Constitution reads
Ln part a3 follows:
          tt
           ...and no county, city or town shall levy more
    than twenty-five cents for city or county purposes,
    and not exceeding fifteen cents for roads and bridges,
    and not exceeding fifteen cents to pay jurors, on
    the one hundred dollars valuation, except for the
    payment of debts incurred prior to the adoption of
    the amendment September 25, 1883; and for the erec-
    tion of public buildings, streets, sewers, water works
    and other permanent Improvements, not to exceed twentg-
    five cents on 'the hundred dollars valuation, in
    any one year, and except as is in this Constitution
    otherwise provided; and the LegFslature may also
    authorize an additional annual ad valorem tax to be
    levied and collected for the further maintenance of
    the public roads: provided, that a majority of the
    qualified property taxpaying voters of the county
    voting at an electton to be held for that purpo3e
    shall vote such tax, not to exceed fifteen cents on
    the one hundred dollars valuation of the pl;loperty
    subject to taxation in such county. .....
          In Carroll v3. Williama, 109 Tex. 155, 202 S.W.
504, the Texas Supreme Court used the following language:
          "Second. Going to the real gist of the
    maIn issue'before u3, section 9 of Article 8 of
    our state Constitution, supra, inhFbit3 any and all
    transfers of tax money from one to another of the
    several cl&&saesof funds therein authorized, and,
    as a sequence, the expenditure, for one purpose thereIn
    defined, of tax money raised ostensibly for another
    such purpose. The immediate purpose in 30 pre -
Honorable R. V. Rayford, page 4         o-3211


    scribing a separate maximum tax rate for each
    of the classesa of purposes there enumerated is,
    no doubt, to limit, accordingly, the amount of
    taxes which may be raised from the people, by
    taxation, declaredly for those several purposes
    or classes of purposes, respectively. But that
    is not all. The ultimate and practical and
    obvious design and purpose and legal effect is
    to inhibit excessive expenditure3 for any such
    purpose or class of purposes. By necessary Lm-
    plication said provisions of section 9 of article
    8 were desIgned, not merely to limit the tax rate
    for certain therein designated purposes, but
    to require that any and all money raised by tax-
    atlon for any such purpose shall be applied,
    faithfully, to that particular purpose, as needed
    therefor, and not to any other purpose or use
    whatsoever. Those constitutional provlsions con-
    trol, not only the raising, but ,also the applica-
    tlon, of all such funds; and such is the legal
    effect of articles 2242 and 7357, supra, when
    properly construed and applied.
         True, the Constitution does not say, in so
   many words, that money raised by a county,city,
   or town, by taxation for one such purpose shall
   never be expended for any other purpose---not even
   for another of the five general classes of pur-
   poses defined and approved in said section 9--
   but that, we think, Is its plain and certain mean-
   ing and legal effect. The very definitions of those
   several classes of purposes, and the declaration of
   authority to tax the people therefor, respective-
   ly, coupled, as they are, in each Instance, with
   a limitation of the tax rate for that class, must
   have been predicated upon the expectation and intent
   that, as a matter of common honesty and fair deal-
   ing, tax money taken from the people ostensibly
   for one such specified purpose shall be expended,
   as needed, for that purpose alone, as well as that the
   tax rate for that particular class, In any one
   year, shall not exceed the prescribed maxLmum."
          In Opinion No. O-413 we were concerned with the au-
thority of the commlssioners' court to purchase rlghts-of-way
out of moneys in the county general fund. We held general
fund moneys may not be so used; that under Section 9 of
Article 8 of the Constltutlon money for the purposes con-
templated must come from the ConstitutIonal road and bridge
fund.
_..   -




          Honorable R. V. Rayford, page 5           o-3211


                    In our Opinion No. O-3142 it appeared from the facts
          that the county had a surplus in the permanent improvement
          fund., It desired to use this money to purchase airport prop-
          erty under Article 1269h, supra. We held that since airport
          Indebtedness would be a charge agalnst the county permanent
          improvement fund, the county might, at its option, issue
          bonds or use a surplus existing in such permanent improvement
          fund.
                    You are accordingly advised that under the author-
          ities cited revenues in one Constitutional fund may not be
          diverted for uses other than the purposes for which such taxes
          were levied; that while the county may use a surplus in the
          permanent improvement fund for the purchase of airport prop-
          erty under Article 1269h, supra, general 'fundrevenues may
          not be diverted by the commissioners' court for such purposes.
                                            Very truly your3
                                      ATTORNEY GENERAL OF TEXAS


                                            By s/James D. Smullen
                                                 James D. Smullen
                                                        Assistant
          JDS :js :wc

          APPROVED MARCR 25, 1941
          s/Grover Sellers
          FIRST ASSISTANT
          ATTORNEY GENERAL
          Approved Opinion CommIttee By s/BWB Chairman
