                                                                          747



       OFtiCE   OF   THE     ATTORNEY         GENERAL     OF   TEXAS
                                 AUSTIN




iIonorabka Obel L. LICAllSter,              ChalrIMn
coamltt88   on Sate   Affairs
iiOU58 Of ~eprf358IltatlV8~
irorty-ninth Le~lslatura
Austin, Texas

Dear   Sir:                         0plnlon HO. O-6168
                                    H8:   Conatitutlonallt



       ~oufletter   0r April 27
iO5 Of this d8~rtn8llt all t0
~111 ido. 653 1s aa follow




                                                       ort and maintain




                                            e Conmittee  that pas-d
                                             appreolate  an opinion
                                           at a8 early  date as prao-
                      onceming           the abOV8 pointed out natt8r.m

                           ;;o.   653 la as followa:
                                        *A all1
                                  "To    i3e &titled

          *An Aot    authorizlq    any county, olty or town now
                     or hereafter    inoorgorated   UIId8r the gen-
                     era1 laws or thie      Stats to organize,
                     opsrate,   aupport and maintain     a Board of
                                                                             748


Zonorabla   Obel    L, l:oAlister,   pa&e   2


                   County Develogllant, fiovrd of City Develop-
                   ment, Chamber of Commroe,     or other similar
                   organization; authorlzlng    the levy or 43 tax
                   for suoh purpoeea,   provided such tax levy
                   is authorized by a majority vote ot the
                   property   tax 2nyiAg qualiPied  voter6 of
                   such aounty, olty or town at a;l el8otloA
                   held ior auoh purgose; and declaring    an
                   8OI8rg8ACy.



              "Liection 1.    Any county, oity or town now or
        hereafter    incorporated    under the general lawa Of
        thin L.&ate, may, in addition       to all other powers
        now pOSa88S8d     by Such county, city or town under
        the general lawre of thin state, b8 authorized         by
        proper OrdinaAO8      paesad by its &overning    authority,
        to organize,     operate,   support and maintain   a iioard
        of Couty     Deveiopment,    a aoard Of City DevelopneAt,
        Chamber of Com~rce        or slmllar orZanlzatfon    davoted
        to the growth, edvertlsement,        deY6lo2meAt  and lm-
        prOV8585t    Ot 58id GOtllIty, Oity Or tOW5.

                “380.   2.  For the purpose 5)at forth in Seotion       1,
        of thla Aat the governing           authority   of suoh county,
        city or town is hereby authorized             to levy a tax not
        exaeadiry       two oenta (2#) On the One Hundred       Dollar
        valuation       or the taxable property       of auoh county,
        city or town provided          such tax levy la first au-
        thorized by a majority          vote of the property    tax
        payins qualified        votere   of the county, olty or
        toG;n at an election        called acd held for euoh
        plrrpoae      a8 provided by law.

             “380. 3.   The fact that many oounties,         oitism
        and townS.have   no adaquately   maintained      SAd Supported
        organization5   devoted to tha growth, adVertiSemeAt,
        development   and goners1 improvement      of said oountiea,
        cities or towns and the faot that suoh aA organiza-
        tion WCQAU be very beneflolal      to the growth and
        general improvement    of oountles,    oltlee and towns
        crsatea an emergency     and aA imperative      public ~eoes-
        Slty that the COABtitUtiOAal     kid.8  reqUiri%      bill5 b8
        read on three several day8 in saot house be, sad the
        sa3   18 hereby suspended and this i,ot shall take ef-
        fect aAd be in force lroa aAd after ito passage and
        it i5 80 enaoted.
                                                                               749


Ionorable   Lbal   i.. IJoAllstar,   Pat38 3




                 "-end  Uousa Bill No.         653   by strikla&    out all
            b81OW the 5AaOtiog    ClaU58       and   substituting    iA li5U
            t!i8rGOf the fOllOWi5g:

                 "Zeotior; 1.  Any county of this State, and any
            city or town now or herearter      incorporated   UAder the
            general laws   of this State,   ma$,  in addition    to a11
            other poWera now pOaa8aa8d     by auoh oounty, oity or
            town under the general law8     of this State, be au-
            thorized by proper order pasasd by the Cozmlsslonerle
            Court of suoh county, or proper ordinanoe        paesed by
            the govsrning authority     or auoh olty or town, to
            organize, operate,    au&port and maintain     a .3oerd of
            COUAty D8V8lOEJ8eAt, a Board Of city DeVelOpcleAt,
            Chamber of Commaroe,    or a&nZlar organization      devoted
            to the growth, advartirrment,      d8V810pm8AtS   improve-
            &at   and promotion of the trade and oomme~ce general-
            ly Of auoh OOUAty, city Vr tOWA.

                 “240. 2.  For   the porpaaa    ast forth in Section 1
            oi this sot, the governing      authority   of such oounty,
            oity or town la hereby aUthOri28d       to lavy a tax not
            srceadin&  two (2) aoAt      on tha One Hiundred Dollar
            valuation 0r the taxable      property or such county,
            olty or town, provided      auoh tax levy la flret au-
            thOriZ8d by a majority     vote of tL8 property    tax
            pagiA& qualified    voters of ths oounty, oltg or
            town at an ~elaotion   oalled   and held for euoh pur-
            pose a8 provided by law.

                 "Sea. 3.    The iaot    that many counties,    oltlea
            aAd  tOWA   have no adequately     maintained   and aup-
            gorted organizationa      devoted  to the growth, adrar-
            tiaement, i&iprOVem~nt     aAd promotion    of trade aAd
            ooaunerco~cAc!ralLy of 8nld jounties, oltiee and
            toWna, and the faot that such an or~aAlzatloA
            would be wry     bensfiofal    to the growth and general
            iaprovement   of courities, aitias and towns, oreater
            an emergenoy    and aA imperative     publio necessity
            thot the Co5StitutioA.91      Sule r8qulriAg   bllla to be
            read on three several      days in 8a0h iiouse be, and
            the anme ia hereby suspended,       aAd this Act ehall
            t&e   erreot and be in ?oroe from aAd arter it6
            paS8ag-Y and it ia a0 8n6Ot8d."
                                                                                          750

lionorebla        3bel   L. Xcirlister,     paua    4


          After carefully     conaideriny   your request   in connea-
tion Hi1t.hvarious provisioos       of the Constitution    aa nartiomd
herein, iye cannot categorically       answer your question aa to
the constitutionality     of said liOUs6 Biliho.      653.   iIowever,
there  are serious   constitutional      questions  inVOlV6d to whioh
we will diraot your attention.

             saotion 1 of Article          VIII     of the Stat6      Constitution
provides      in &art:

                    nT6xation   shall     beaqual       end   unifonnmw

             Seation      3 of hrtiale    VIII     is:

                  *Taxen shall be laviad ard oollsoted by
             general 1~8~s aAd for publio purposes only.*

             SeotiOn      52 of Artid       III    Of the Stat6 Constitution         ia
in part      66    fOllOW61

                  'TN  Legislature    shall have JO power to
             authorize   any county, city, town or other
             politiaal   coryoration   or eubdivision   of the
             Stat6 to lend its oredit, or to grant publlo
             money or thing of value in aid of, or to any
             individual,   asaooiation   or corporation   what-
             606V62.   .e ln

         Seotfon 3, Artiale XI prohlbitr     any oounty, oity or
Lnunioi~llty   from making ariy appropriation   or donation  or in
any rise loaning its amait to any private aorpor6tlo5        or
aaaooiation.

   -'     It will be ooted that Souse     Sill 50. 653 expressly
authorizer, any aounty, city or towm now or hereafter           incorpora-
ted under tha general lawa of th6 Stat.0 to OrganiZ6,           Oparete,
support and maintain    a Board of County Development,        Board of
City 9evelopaent,    Gha.6ber of ComeroB,     or other  similar    or-
ganization   devoted to the growth, advertisement,        development
and iaprovament    of said oounty, aity or town.       Should a ocmt:,
city or town atteinpt to aid a CharPber of Comeroe         or similar
organization   eat&g   aa ec $nCepandent    aesoolation,    auoh act
or aots would contravene     Sootion  52, Artiole III of the State
Constitution.

         It has been held by the suprem Court fn the case of
aavis et al vs. City of Taylor, et al, 67 9. V. (26) 1033, that
a horn rule city had authority  to 6Xp6na mar  for th6 purpose
of advertising.
ilormrable (Ibel L. Lo.Alistsr,         peea 5


          Je $uote from    the   case    of Davis    vs. City   of Taylor,
supza,   as follows:

               “Art1016   8, Ssotion      3, of    the Constitution
          provider:

               **Taxes shell be levied           and COlleCt8d  by
          general   laws and for public          pur?oeea only. *

               “It is well settled that maioipal   corporations
          cannot Inposes  taxes for other then pub110 purposes.

               *The ksendment  to the charter of the oity of
          Taylor set aside oertsin funds to be devoted to
          *the growth, advertismaent,    development, improve-
          mnt   and inomase   of the taxable values of said
          oity.’

               *In disouasing   rhet is a yubllo purpose, Xo-
          ~;uillIn on biunioipel Corporations   ( 26 Ir;d.
                                                         ) vol. 6,
          p. 292, @ 2532, says:      What  is a gublio purpose
          cannot bs answered    by any precise definition     fur-
          ther than to state that if an object la beneficial
          t0 the inhabitaate    and dimctly   COM6Ctea    with the
          looal governsent    it will be considered    a pub110
          purpose. *

              “The supmum     Court of Illinois,      in Taylor va.
         Thompson,   42 Ill. 9, defines a *tar for corporate
         purpoae8*   80 followrrc     *iYe ney define this phrase
         to mean a tax to be expended         in a manner whioh ahall
         promote the general      prosperity    and welfare   of the
         munloipality   which levies it.*

               “Iti would not be of value now to attalpt    to
          thoroughly    define or diaouss what am    pub110 pur-
          poses.    X0 exaot definition   oan b6 raade, YUffiO9
          it to say that, U&e88     a aourt oan say that th6
          purposes for which publJo funds are expended are
          alearly not publia purposee,     it would not be jua-
          tified in holding invalid a legislativa      act or
          provision    in a oity oharter providing   funda for
          suoh purpose 8,

               WCooley*a  Constitutiohal  Limitations  (5th ad.)
          p. 155, saya:     ‘But what Is for the publio good,
          and what am    public purposea,  and what does properly
          oonatitute   a public burden, are questions   which the
lti~:lslature:nust dLcido u;on its own Judgmnt,
aild iii rrs;ect to ~l;loh it is vested with a large
di..cretisn iv.^,ichconnot  be controlled   by the oourts,
axcept, parhapa,     :here its action is clearly eva-
sive, arid w>ere, uder     pretenca of e lawful eu-
Lhority, it !ias aesuaed to exaroise one that la
lbGZl~:.f
        ul.   ;,here the :me.r which is exercised   is
lrcisl>tlve    in ita ctiaraotsr, the oourta can en-
force only those 1131tatiohs      which the constitu-
tion i.qosas; not those inplied reatriotiona       whioh,
restine   in theory ooly, tha people have been satis-
fled to leave to the Judgmmt,       patriotism,  and sense
of Justice of their represantatives.’

    "'Pii principal oontention  in this suit is that
it is not a public ,purpose ana not a 3uniaipal   pur-
pose for th6 city to 6pend its funds for advertir-
ing the advantages  of the oity,

     “It has generally      bean held ~that appropriation6
for exhibitions    of the reaouroea of a partiouler
locality at state or national expositions            are not
subject to the objection       that they are not aad6 for
e publia purpose.      The Suprem    Court     of California,
in the aase of Deggett v. Colaan, 92 Cal. 53, 28 P.
51, 52, 14 L. 2. A. 474,       27 Am. St. aep. 95, held that
an appropriation    for the purpose of *s.motiag: build-
isg and collecting     end naintaining      an exhibit of
the produota    of the etate * et the ~~orla*8 Fair,         coluin-
bian tixposition at Chloago in 1893,         was not unoonsti-
tutionel on the ground that it was not for a pub110
use.   The Kentuoky    Court of Appealsi, in the case of
I:ormm v. Kentucky Board of Slanagera,          93 Kp. 537,
    I- :i. 901, 18 L. 8. A. 556, held that an approprfa-
20 J.
tion to exhibit    the resources    of that stat6 at the
same Coltmbian i;xposition was fpr a public or govarn-
manta1 purpose.     The Supreme Court of Tehn6ssee,            in
the case of Shelby County v. Tennessee           Centennial
,xpositlon   Coapary,   96 TIM.    653, 36 s. iv. 694, 33
L. .3. A. 717, held that an exhibition          of the resouroea
of a county at a state centennial         exposition      la a
comity purpose within the seaning         of a conetitutional
provision   suthorizing    taxation for county purposes.
In this last ease there was an exprese           grant of power by
the General Assembly      to levy nuah e tax.        3s can see
ho ~+.aterlal differenoe     in the ultimte      purpose    of an
exhibit of t&e resourcas       of a partioular     looality     at
en exposition    end the zor6 modern method of present-
ing the advanta&ea     and opportunities       of a oity, oounty,
Lonoroble     Ob81   i.   LcXlistur,    pnge   7


             or state, thrOu&      neuspapor       or ;?a&aZihe   8dVortiS-
            'ing, ond similer     ch8nn8ls.

              "In the recent cese of Sacramnto          Cha,nbnberof Con-
            30fCB V.    Stephens,  212  Cal.  607,  299  r. 728, the
            Cuprel;la Gourt of California     upheld a contract     of the
            dtg     02 SnUrRn8ntO  -which provided   for the ge118ra1 nd-
            V8XtitdIlg   of  the Cttr.   The Ch8ft8I' of the city Or
            Saol'a;nehtO spt9OifiG8lly provided 40r the appropria-
            tion 0r the funds or the oity for such purposes.            In
            the course or the opinion,       Chier Justice i,aste USUP
            the rollowing,languag8:

               **In   answer   to tha contention     theit the contraot
            between the city and the Chainbar of Cosmroe               does not
            relate to a public purpose,         little need be said.         In
            oonsidering      a soaewhat sis?ilar puastlon whioh arose
            out of a danand on the state oontroller              to pay a olaix
            oontraated     and audited by the Calirornia          %orld*r pair
            C0~UUisSi0n in COMsOtiOh        with the cOUCitrUetiOn        Of build-
            ings and the naintenanod        of an exhibit     of the products
            or the state or calirornla         at the :$orld's Pair colim-
            bian axpOsitiOn      held in the city of Chicago,          St&s   or
            IllinOi8,     in 1893, this OO&       Said, in DO@$itt        v.
            glgn,      92 Cal. 53, 57, 28 P.51, 52, I.4 L.' a. A. 474,
                    . St. Sep. 95, "that what ia iOr the publio good
            and what are public       purposes   'm-8 questiona       which the
            lagislatuw      mat   dsoide upon ita own judgmnt,            in ree-
            peat to whioh it is V8stCid with a large discretion
            which cannot b8 oontrolled         by the oourte, exoeptt *
            perhaps, Wh8r6 ita aotion is clearly avesivo.
            Wham     the power which is exercised       is legislative       in its
            oharacter,     the courts can enforce      only. those lixitationa
            whioh the oohstitution        iaposae; not those implied re-
            SttiOtiOllS, whloh, resting in thdOr$’         Only,     the people
            hare been ratisfiad       to leave to the fudgmnt,          patriot-
            ism, sha sense or just1064       of their representatives.*
            Cooley'a,Conet.      Lila. p. 154."

               *'ifurther:aors , HB are or the view that, bj oomo~
            oonsent, it is now @merally        held to be vi811 within
            a public purpose ror any given locality          to expend
            publio funds, within due linitatione,         for advertising
            and otherwise    oslline sttantion     to ita  natural   advan-
            tagas, its resouroesi, its enterprises,        and ita adapt-
            ability for industrial     aitsc),  with the obdeot of in-
            cresalng    lta trade and oommroe     and of enaouraglug
            people to settle in that pertiouler         oomauhity.g    saora-
            .?lantO Chamber Of Comeror      v. Stephens,    212 Cal. 607,
            299 P. 728, 730.
              ” .~:c,~uillin,id :,is I.532 :3Um&itiV6      ;Ul;;le,?ElKlt
         to his rorh on 2:unicipal Cor;orstiors,            at pa&es
         062,    663 says:      ';llthough   recent   decisions    doolare
         advartis i ng is 6     yublic   yurpose   for  '#hioh  the  tax-
         ing >ower     isay  be exercised,     to authoriza    tka  levy
         of any tax for this purpose or ap;Topriate              public
         moneys    therefor,    8x;jreas  grant   Just  axist,   CitLier
         statutory      or in hoillerule oharters.'
             *';lehaV8 been unable to find any 08%    in ti:S
         reports   in whioh there was an cixpress Grant Of power
         I‘or the purpose of edvartiaing,  that the court has
         not upheld the power of the oity to appropriate. the
         ~loney therefor and ;hevy a tax to dzfray t&v ex?ensa.

             *In this case express authority   in the hom8 rule
         charter does 8rist, ard its excrolse    ia not a vlola-
         tion or any provision   of the Constitution  or the
         .seneral laws of th8 state, and can reasonably   be in-
         cluded in th6 general po%ers and purposes Of the
         municlpel  government."

          In the case of Ziller et al VS. ill F8SO County, 150 S. ,i.
(26) 1000, the Supreme Court held krtiole 2253b, Vernon*8 Annota-
ted civil    Statutes  unconstitutional      on the ground that said
statute    contravenes  provisions      or LX3otion 50, Article    III or the
state Constitution.      This statute      authorized   all counties    in this
titate heving a population      of not less than l4.5,OOO inhabitants
a:&d not more than 175,000 inhabit8nt8,          and containing    a oity
having a population     of not less      than 90,000 inhabitants,     as
s3.o~ by the last preceding        Federal   Census, to levy     a tax of
not over rive (5) oents on the valuation or ~..100.00 or ouoh
county, for the purpose of advertising           and promoting    the
i;rowth and development     of said county and its county seat;
:;rovidad that before the Comtaiasioner'e Court of such counties
oould lavy any tax for suoh purpose,           the qualified    tax paying
voters of the oounty rvould have to authorize           the Jo&nissioner*s
Sourt   to  levy such tax by a majority        vote.

         It ;ias said   la the case     of :;iller et al     vs. ~1   ~aso     ;;ounty,
supra:

             “GUI   holdkit;   th8t   the    AlIt   iS void On tke :;rour;ds
         above stated, renders it 'unrooessary for us to pass
         on tne otner assignments            raised in the briefs.' In
         this connaotioh,        Lowever, iye deem it proper to call
         attention      to the faot     that      the case of Uavis v. city
         of Tsylor,       123 Tex. 39, 67 3. ii. (2d) 1033, relied
                                                                    755



Sonorable tibel L. KoAlieter,   pzlge 9


       on by defendant6 in error as authorizing the
       ix;eIidiIj.~of 3ubli.c fU~3.6 for advertising _DUr-
       ;;oses,  dealt ;riitha ho:ae-rule city and not a
       00ufity,  end that a oity kiay ereroise  proprietary
       fuActions, while a oounty, as a acre subdlvieion
       of the 3tat.6, can exeroise only ;jovermental
       Puxc tiOrl&.*'

       In vier of the Soregoing atatament~q      rr;c Suprerae Court,
it is doubtful that the expenditure of oolrnty funds for the .pur-
pose OS ail~vcrt1flI.y tr,e county i6 a ~:over~~~ntol fuuation, and
that o co~:y TOIL.LCbe authorized to ake such cxpecdituree.

        :;a also direct your attention to the case of Anderson
et al v6. City of s6A Antonio, 67 S. a. (24) 1036, Wherein the
  upreine Court held that neither the oharter ,110~janera law6
&powered    cte city of San Antonio to levy a tax to 6dV6rtiEe
the city nrd that an ordicanos authorixirg   aiioh a tax ldvie:b
for  such purpose wae Invalid.

       In view of the foregoing authcrltfes and ae heretofore
steted, we are unable to oategorically aua:yer the question   un-
der consideration.   ;le hove called your attantioc to airtain
portions of the bill  which ai'e p~estio~sbl8 ir.sofar sa the
oonstltutionality of the Act is ooficsrtied.
