## 133

iicnoroblo

I. Fmdecki ccxanty Auditor oiAm3ton couutg calvsstoa,Texas

sbova0apLieasd oposed Oalvertoa- !Cunnel~

and relatthla cgoement expired it was again renevod tor a period of 90 days onApril lOtA, 1944, at a meotlog of the+iakissioaers' Court held on that date.

?l. B. 990, Aots ot **the** 47th Le&s2ature, ufrL& 1s Art&c& 6795-B of the Reolaed'CL~il Stat**utea, autho~$.gss** **~onatwS%oaa of**  a tstrwture **uhiah ”** 

## 134

Honorable I. Predeoki, page 2

the engineering firm referred to proposed to Surtish plaza allaapecificatfonsfor. “Section 1 of said Article refers’ to the **au** thorization and **Issuance** of **revenue**bonds as well aS the pQEb3at Of PZ'elimilWjr8mnS8S by the County from Its (generalfunds’ aad also provides for the repayment to such fuuds fmm the **proceeds** of the bouds when available.
“The various funds **that** 0alvestoa County has at this tIm8 vere levied for specific purposes and in none of said tax levieswas oontemplated the expeuditures sow propoaod for engIneerlug services In comeotloa vith the tunnel. Ia aectlon 2 of said Article, the vords ‘aenoral funds’ are used, and as this article Is a part of Title 116, Roads, Bridges, aud Ferries, It OCQLWS to me that IS It Is legal to advance any funds, that said funds should come Sron tax levies Iu uouueatlon with roads, bridges, aad ferries. )Your Oploion lo rerrpeotfullp requeeted on the following:
“ISArticle **6795-B** a **lega** aad **aoastitution** al act? “3Inoe the Couuty Is prohibited from traas- **.ferrfng** oonstItutIoua1 funds,what funds can be used to pay the~sum of $5O,O00.00thI8 year and $50,000.00 In the pear 1945, and the statement is made by the RrqIneers that the Federal Government through the State RI&way Departmeat **~111**match the $100,000~.00

that 2s requested Srolp the COUPtY- %houldgour oplaion on the above be Ia the aegati+e, Is the County authorIsed to have a bond electiota

for the purpose of Issuiagbonds Iu the 8~ 0f 

### .$100,000.00 as its share 

### ofthepreW=P engIneerlag expenseaT
.“.. ..

a‘ ’

. 

## 135

zonorable Xi Predeakf, page 3

W8 haV8 CW?fdly studiedH. D. 990,. unableto Shad sag provisions thereof vhIch la arei?~vlolatioaof the Constitution. We &We

._ ._ and have b8eA our oplaIoa pazt10ular1y con310eraQ3816.

**act** /A coaJUaot~oavltl'z SeW#ioA 56 of A.rucle **3,** SeCtioA**9** of Article 8, Seotloa 18 of Artlole **5** and Sectlon7 Of Arttale 2 of ow State COnstItutIon &Ad have reached theOonclusion that your first question should b8 answered intheaffirmative.

The Aat itself provides that the ooat of the projectshall be considered to Include the oost of construction, thecost of all property, et cetera, aad %hall iaclude the ppnt of al& legal, ffSCa1 and engineering **eqenSes** incurredla oonneotloa ulth the acquisition and aonstructfoa ofthe pI'Oj8Ct

and the making of preliminary swveys and investigationsand the authorization and lasuanoe of the revenw bonds." It la furtherprovided in the Aat that any preliminaryexpenses paid by the county from Its general funds ohs11be repid to the county horn the proceeds OS the bonds

_ whenavailable.

Itmay be seen, therefore, that Galveston County la to,~flnaace

the pretilnary work and will b8 retibws8d for that8Xpense from the proceeds of the bonds Za the event the revenue bonds are actually issued and sold.. Does this constitute a leading of the assets of the OouAty, in VloLatloA of our State Constitution? We think not. IA the SiFst plaae,
i thereoan be no question but that this prellmlnary expense is for “county purposes." See Aransas County vs. ColemaRF&On i%iSttWe

Company, 191 3. WI 553~ ~hl85tOn county VS. Gresham,220 S. W. $0; Hldalgo County Water ZmpFovemeat DistrictNo. 2 vs. Felck, 111 S.,W. **(26) 742.** 

The Legislature could have prOVld8d IA saidAct for theoOuAtg to pay this preliminary expanseVIthOutmakIng Pro**VLSIO~S** for its repayment, aa the projects provided for therein are for %our&g purposea.” The, mere SaOt that th8 Legislaturoprovided for the trnnsaotiona "leAdIng," county's repayment does not make the as the Legislature evidently knew thatif the flannclng of the projeot Salle, that the bonds
i vouldnot b8 issued and the payment by the OOuAtS of the Rrel&&ary eaellS8S would not be replde,

Fop an i~~tratloa of the prIAOIple involved, Ye i oitea gouovingg A OWM a farm adjoW 8': A de*fies to

## 136

fioaorable

I. Predeckl, page 4

builda~fence around his land so as to keep his cattle confinedtherein. B tells A that ii **A** will build such Seaoo andPY for the Same that la the event thathe (B) la elected to the office of pound keeper that he vIl1 repay A So+ suchexpenditures. A built the fence under **wild** aDeeneat. DidA lendmoney to B? The question answers ICje3.f. The fencebelonged to A aad was erected forA's boneflt and Aas p~poso. The prellmlzzwy expenses are **for** county purposes 6nQ 1s paId out for the bsnefit OS the county and the mere ., fact **that** upon **the happealqf:**  **of a**  future coatingeaoy that such money would be reSund9d to the countywould not make thepaying for such preliminary expenses a lending of money. Tb6 SUPrem Court of TeMeSsee In the case of Stat8 ex.rel. Bigham,et al., VS. POVeI?a, reported IA I37 9. W. lll0, had tke sameWestlOU before It and held that the paYmient by the countyof the prelimiW.irY expenses incurred 

### in coanoction with the proposcldformation of a drainage district, although th6amount so expended would be rotunded t0 the county out of*theaSSessm8nt3 COlleUt8d 

### from thelaads Of such dj.strIot when so collected was 

### not la vlolatlon of the coastltutfonal provisionsof Tennessee, vhlch has a llk8 provlslon as.ou State COastltutlOa, as to leading of credit, et cetera. This courtIn the 

### course of'it8 oplaloa used the 

### following language I 

### “Wedo not think that thismakes **out a**  **case of**  lending the oredit of th8 county in the **coastitu** tlonal sense, but that it la rather tho ooaferrlng of authority upon the counties to appropriate a portfoa of their geaeral funds for a newly sanetloncd OOMty pUFpOS8." .' All county expeAdItuF85 lawfullyauthorized to be mzdeby a county must be paid out of the county88 general fund unless th6re is some lav which makes them a charge againsta sp8clal iund. Bexar County vai &inn, 157 3. Y. (26)l34;w.llama ~8.~Carroll, 182 3. W. 29,

Tha oaxg special Sund, besidea.the goneral fund, that ;t could 8‘v0abo contended could be used In l=Ylrr&for aaae prelwnary expenses, IS the Road aad nrldas FM& 30 lgVQ reach th8 **conclusion that**  **the R-d**  **ead &i&e**  **Fund Can0**  notbe used to pay th6Se prelvY exw!ns8% ve hav8 Your second question aaavered~

T&$ fj.p$t QWStfOA that arise8 fs vhether Or aot 8 t&i& 1(1a 

### “road” or a gbp;&ge’ 

### as those terms are wed fn

.. ~... 

## 137

_

Honorable I. Predeokl, psge **5**

Section 9 of ArtlOb **8** of our Constltut;ba.

_

We do not believe that it could be serlouslg contendedthat a tunnel Is a bridge. Is It a road? Uebstw's Heu InterKUitlO~lDlotloaary defines a tunnel, as follows:
'A subterraneanpassageway, esp. o&nearly ': horizontal and open at both ends, as to provide 8 path iOr a road, railroad, c+nal, and eta., OF for a sever or drain.’ So ue see that a tunnel Is merely a subterranean passageway, 'toprovide a path for a road . ; .' A road as deflaed by Webster'sNew InternatIonalDlatlonarg la as follows:

'A place Vhere onemy rlde$ an open way or pub110 passage for vehlcles, persons, and ax&ala; a track for travel or for couveylng goods, etc.., forming a means of cammuuloatlonbetween oue place 8nd 8bOtheI'. Road is generally applied to a hlghway outside **of** an urban dlstrlot, as distinct from a street which 1s a highuag lo an w&an diatrict." **Vi** have carefully examlnedall the authorities olted laWords 8od Phrases, Corpus Jurls andMcQulllla on BUU.olpal Corporations,ooustrulng tunnels, and the only case that ve l-m10 been able to find In any jurlsdlotlou, that Is directly inpoint cnthlsmatter la the case of Thompson, et al., vs* iiance, City Treasurer, et ali, reported in **163** Pao. 1021, lu whichthe Supremecourt of CalZrornia held that a tunnel is not a street. As stated by **Webster** lu hls deflultlon of 0 road,8 street is merely a road within the Units Of a tOM or oitg.
A bridge is defined by Webster'8 &3v fntertiatiorial DlotloIuU-y

as follovsr

“ A structure erected over a depression or an obst8Ole, as over a river, chasm, -dvaY, pallroad. eta;. carrgiw a roadvay for passeagers, vehl&s, et-ceter&."

__ Thusve eee that a brld&e 

### 1s a struatum and

### that aocordlug to Uebster,'a 

### roaduay

## -. 138

bnorable I. Predeokl, page 6

andby reason thereof a bridge coma nearer to being a road thandoes a tunnel. The Sroxzrs of our Constitution ia proVidl q for Road and Bridge Funds, evidently did not use tte tern roads” ln a broad enough sense to include “brldSesy orelse thoxwould have merely provided for a’“road fund’insteadof a road and bridge fund.” If the tern “roads”as usedin the Coustitutlon uas broad enough to lnblude "bridges," the addition of the term “bridge”vas surplusageand meaningless. Furtheruore,ve CamA believe that at the time the Constitutionwas vritten that the framers thereof 

### ever oontczplatedor dreamed that 8 road as used ther8itA would coustltute8 tUM1 usder the sea.

Section 9 of Artlole 8 of our Constitution, reads 

### as r0110us

t ”

.and RO county . . . shall levy more than 2jC*Sor city or county purposes, and not 8Xcoedlng-154

### forroads and bridges, 1 .,.*
The fact that Section 9 (supra) la providing for the levyOf not exceeding 154 on the $lOO.OOvaluation for roads andbridges, does not read: roads, bridges and tunnels, leads to the inevitable conclusion that such spec'lal coust;tut;oual fundshould only be expended for roads aa bridges.

The Supreme Court of Ts.xasln the case of Arausas County ( et al., vs. Colemn-Fulton Pasture Company, et al., supra , I had under consideration for construction that portionof Section 52 of Article 3 or the Constitution,vhlch reads 8s So~ous: "The constructlou,malntenanoe, and operationof mmadamlze$ graveled 

### or psved roads and twnplkes, 03 in.ald theroof, and held that the.sense in vhlch the term "roads@is used ln.sald **Section** of the Constitution, iMhdeS thetern "brldg8S,Rbut the Court in the COUlW8 Of it8 Apiaionused the fOUOWing signiSl=nt bW%8:

9n diff8reUt provisions of the Constitution, aamelv. Seotlon 56 OS Article 3. Section 9 of k++ -~~~~~~ -. . ~-. ole2, Sect&k 2-0s Article 11,-i n0.Y to1 --- Art1~18 16, rOads and bridge8 are deagi vffth8s' distinct subjects~ In L itaction

g of ~ttiie 8, the construution of eaah 1s rl **0oogtdmd as**  **a dle+nat**  **ads ’**  purpose 

### or ta.mtloD,” Ina?inuatih a8 the t8l'%‘rc. ,’

HonorableI. Predeckl, page 7



### is very plainly used in these section3 ia a Sped ClfiC SOWJO, it IS urged by the defeudauts in error that 

### the same restrlcted meaning should be - given it la the construction of Seotion 52 43s Article 3. Such %I88 the view of the Court of CivilAppeals. There is force in the position as a general rule 0s construction6 But the sense IC which 8 term 18 used inother provlslous of the CouStltUtlon is uota conclusive test of its meaulng ln a particular provision.: The spirit, purpose acd scope of the pa?tlcukir provLs;on 8pe all to be consulted in the effort to deterniue ulth certalcty the moaning of **its** terms.* acoring ours) (UuderThe Supreme Court in the above ~a38 clearly state3 th8t the term *roadsaas used lu 3al.d Seatlou 9 of Mtlcle 8, isused 

### in ita st~lctest sensei and does not include bridges. ~~e~~"rl roads as used lnSeotlon 9 does not include ,

. EV~KLthough the term "roads3as used in said Seotlon9.be broad enough to include a tunnel we are of the OpitiOlI

that the 8XpeUdltuN for these preiS.rninary expenses shouldstill be paid out of the general fuud of the county. It is true that the county 1s prohlblted fi.~~~traasSerrlug nouey from one oonatltutlonal fund to another, but x8 thiuk thisexpeudlture la oertaitiy for general county purposes and shouldproperly be paid from the goneral fund, even though it nightbe held that the aatual oost of the collstructlon of the tunnel,Is it uere being paid for by the county Srox its funds dertidfrom the taxes, properly should be paid 

### from the r@d andbridge fund. 'Al1of the servloesheretofore performed andto be performed, for which thle~payxeut is to,be made, are of 8 fiSC8i nature and are prelSminaPy to the conatructlou of theproject and has to be coxploted before it can be 

## financed, much less actual oonstruotlon begun. InWords aud Phrases, it i3 statedthat the term "preliniaary"dealing with prelynaw expenses,means "thatwhich precedes the mSiu buslness~

In Attorney General's Oplulon No. O-781, lt was heldthat the expenses for holding a county-wide eleatloa for thepurpose of voting a $gO,OOO.OO road bond l3su8, uas PSYableout oS the general fund &the COuPtY* T~u election.. s:’

i

. .

HonorableI. Predecki,page 

### 8

eqense was merely preliniUWy eXpSX%?n, and w&3 not payable outof the R@d and BriBp;e Fund. It was merely "thatwhich precedes the nain businkss." The preunary expense involvedin the construction of the proposed tunnel 1s certainlyfor

### countypurposes and 'thatuhlch preced+ the main buslnesa."

. !\

The Supreme Court In Bexar County vs. &inn, (supra), held that the holdiw Of d~Cion3 should be paId out of the generalfund and made no excoptlonswhere the electionwas forthepurpose of votLn$ county road bonds. The Cou.rt in the Course of 3.t.s opinion used the Sollow~ Z,anguaget
"30 far as is pertinent to this case, Section 

### 9 of Article 8 OS our State Constitutionprovides: I+ l ibno c ounty + l l shall 

### 1Cvymore than 

### 254 for-*-* * county pupposes l l l on the $100.00 valuation, * l* .a e - -

a ^- "It is too evident to admU of debate that~ theholding OF conducting of elections is a county pu??pose

wl.thinthe meani% of 

### the above quotsd coaetitutionalprovIsion."
We can 968 I10distln&ion as a matter of li%v between thepreliminary expense of holding an election Sop the purpose ofvotlry county-wide road bonds and the expenses involved ln thePrelimiIWy matters essential to be completed in 

### order thatrevenue bonds may be Issued for the purpose of construct-, lngthe proposed tunnel. There Qan be no question but what' constitutionalfunds can only be used for the purposes for vhichthe tax levy was made. The Road and Bridge Fund can onlybe used for the construction 

### of roads and bridges. In theevent that the proposed pro'jectIs not finanoed and revenuebonds not issued, no road 

### or brLdge (Ifa tunnel is j a road or bridge) ~121 be built end certainly the preliminary zatters,such as taking c0res of formations;making traffic i investigationsto establish the soundness of the projects pre- ; paringnecessqy preliminary design drawingsI prepariag draw1~3 and applications to be filed with the Unlted States Engineers;securing neceosary permits from the United States mgin88rsto build such project; preparing PrelininWi drawin s andpreparing easements to secure the approval of the Unite8 Statestiny to perat the passage across the sn Jaclnt0 ReservatTon;securing the passage of vopcr legislstionpermittin& 8nEauthorlzine;

the construction of the project and the procur ingof -vestment ba&ers who are able and WiuW3 t0 assume- ‘, . .

**. .** 

**. .**  **.; ’**  

## 2. 141

xonorableI. Prodeck& page 9

theSmmcing of the cost 0r the project; tha eocurlag of nscessaryFederal or State permits, easements, ri@tts-ofyz~y, lcases, cosnultments for ln8urances; the nalclngof SWVOYB, soundings, drlvlng of test pilings; prbparatlon of uorislrq drawings3 n?aking all specifications;fiiaklng of large scalemd full sized detailed draulngsj pmparatlon OS applications

### for Federal 

### or State funds; drafting of Soms of proposalsand coustructlonsand the preparation of the estb jztos of quantities and Costa, canRot be considered a8 the buildlugof a rood 

### or a bridge.,

It is therefore ou?? opinion that the comissioners’ courtof Galveston County may authorize the payment of the preliminaryen&necrtng expenses ia oonmctlon with the proposedGalveston-Bolivar%mzael out of the General Fund.

in 30 far as 8&e ly overruled.



### Ourmior Opioion MO.O-543, 

### datedApril 4, 1939,

is in coafllctherevith, Zs hereby express

### In vlmf do not 

### ‘believe

lt of ow 

### answers to the above questions, YB ~o~oaary to OMYSP your

### ,Wrd QuestLou,



### Yours verytruly 

## ATTORUEY ff- OFTEXAS
d-4++-+ Ii,

V. Geppert

, Assista*