133 

iicnoroblo I. Fmdecki 

ccxanty Auditor 

oiAm3ton couutg 

calvsstoa, Texas 

sbova 0apLieasd 

oposed Oalvertoa- 

!Cunnel~ and relatthla cgoement expired it was again renevod tor a 

period of 90 days on April 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 Statutea, autho~$.gss ~onatwS%oaa of a tstrwture uhiah” 
134 

Honorable I. Predeoki, page 2 

the engineering firm referred to proposed to Surtish plaza alla apecificatfons for. 

“Section 1 of said Article refers’ to the authorization and Issuance of revenue bonds as well 

aS the pQEb3at Of PZ'elimilWjr 8mnS8S by the 

County from Its (general funds’ 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 levies was 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: 

“IS Article 6795-B a lega aad aoastitutional act? 

“3Inoe the Couuty Is prohibited from traas- 

.ferrfng oonstItutIoua1 funds, what funds can be 

used to pay the~sum of $5O,O00.00 thI8 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 Issuiag bonds Iu the 

8~ 0f .$100,000.00 as its share of the preW=P 

engIneerlag expenseaT 

.“. . . . 

a 
‘ ’ 

. 135 

zonorable Xi Predeakf, page 3 

W8 haV8 CW?fdly studied H. D. 990,. 

unable to Shad sag provisions thereof vhIch la 

are i?~vlolatioa ._ of ._ the Constitution. We &We 

and have b8eA 

our oplaIoa 

pazt10ular1y 

con310eraQ 3816. act /A coaJUaot~oa vltl'z SeW#ioA 56 of A.rucle 

3, SeCtioA 9 of Article 8, Seotloa 18 of Artlole 5 and Sectlon 7 Of Arttale 2 of ow State COnstItutIon &Ad have reached the Oonclusion that your first question should b8 answered 

in the affirmative. 

The Aat itself provides that the ooat of the project shall be considered to Include the oost of construction, 

the cost of all property, et cetera, aad %hall iaclude the 

ppnt of al& legal, ffSCa1 and engineering eqenSes incurred la oonneotloa ulth the acquisition and aonstructfoa 

of the pI'Oj8Ct and the making of preliminary swveys and investigations and the authorization and lasuanoe of the revenw bonds." It la further provided in the Aat that any preliminary expenses paid by the county from Its general funds 

ohs11 be repid to the county horn the proceeds OS the bonds _ 

when available. 

It may be seen, therefore, that Galveston County la 

to,~flnaace the pretilnary work and will b8 retibws8d for 

that 8Xpense 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 there oan 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 District No. 2 vs. Felck, 111 S.,W. (26) 742. 

The Legislature could have prOVld8d IA said Act for 

the oOuAtg to pay this preliminary expanse VIthOut makIng ProVLSIO~S for its repayment, aa the projects provided for therein are for %our&g purposea.” The, mere SaOt that th8 Legislaturo provided for the 

trnnsaotion a "leAdIng," 

county's repayment does not make the 

as the Legislature evidently knew 

that if the flannclng of the projeot Salle, that the bonds 

i 

vould not 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 

oite a gouovingg A OWM a farm adjoW 8': A de*fies to 
136 

fioaorable I. Predeckl, page 4 

build a~fence around his land so as to keep his cattle confined therein. B tells A that ii A will build such Seaoo 

and PY for the Same that la the event that he (B) la elected to the office of pound keeper that he vIl1 repay A So+ 

such expenditures. A built the fence under wild aDeeneat. 

Did A lend money to B? The question answers ICje3.f. The 

fence belonged to A aad was erected for A'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 county would not make 

the paying 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 same WestlOU before It and held that the paYmient by the 

county of the prelimiW.irY expenses incurred in coanoction 

with the proposcld formation of a drainage district, although 

th6 amount so expended would be rotunded t0 the county out 

of*the aSSessm8nt3 COlleUt8d from thelaads Of such dj.strIot 

when so collected was not la vlolatlon of the coastltutfonal 

provisions of Tennessee, vhlch has a llk8 provlslon as.ou 

State COastltutlOa, as to leading of credit, et cetera. This 

court In the course of' it8 oplaloa used the following language I 

“We do not think that this makes out a case of 

lending the oredit of th8 county in the coastitutlonal 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 lawfully authorized to be 

mzde by a county must be paid out of the county88 general 

fund unless th6re is some lav which makes them a charge 

against a 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‘v0a bo contended could be used In l=Ylrr& for 

aaae prelwnary expenses, IS the Road aad nrldas FM& 30 

lg VQ reach th8 conclusion that the R-d ead &i&e Fund Can0 

not be 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(1 a “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 contended that a tunnel Is a bridge. Is It a road? Uebstw's 

Heu InterKUitlO~l Dlotloaary defines a tunnel, as follows: 

'A subterranean passageway, 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, 

'to provide a path for a road . ; .' A road as deflaed by 

Webster's New InternatIonal Dlatlonarg 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 cammuuloatlon between 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 examlned all the authorities olted 

la Words 8od Phrases, Corpus Jurls and McQulllla on BUU.olpal 

Corporations, ooustrulng tunnels, and the only case that ve 

l-m10 been able to find In any jurlsdlotlou, that Is directly 

in point cnthls matter la the case of Thompson, et al., vs* 

iiance, City Treasurer, et ali, reported in 163 Pao. 1021, lu 

which the 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&." __ 

Thus ve eee that a brld&e 1s a struatum 

and that aocordlug to Uebster,'a roaduay 
-. 138 

bnorable I. Predeokl, page 6 

and by reason thereof a bridge coma nearer to being a road 

than does 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 

or else thox would have merely provided for a’ “road fund ’ instead of a road and bridge fund.” If the tern “roads” as 

used in the Coustitutlon uas broad enough to lnblude "bridges," 

the addition of the term “bridge” vas surplusage and meaningless. Furtheruore, ve CamA believe that at the time the 

Constitution was vritten that the framers thereof ever oontczplated or dreamed that 8 road as used ther8itA would coustltute 8 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 for roads and bridges, 1 .,.* 

The fact that Section 9 (supra) la providing for the 

levy Of not exceeding 154 on the $lOO.OO valuation for roads 

and bridges, does not read: roads, bridges and tunnels, leads 

to the inevitable conclusion that such spec'lal coust;tut;oual 

fund should only be expended for roads aa bridges. 

The Supreme Court of Ts.xas ln the case of Arausas 

County 

( 

et al., vs. Colemn-Fulton Pasture Company, et al., 

supra I , had under consideration for construction that portion of Section 52 of Article 3 or the Constitution, vhlch 

reads 8s So~ous: "The constructlou, malntenanoe, and operation of 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 

the tern "brldg8S,R but the Court in the COUlW8 Of it8 Apiaion used 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 

Art 1~18 16, rOads and bridge8 are deagi vffth 8s' 

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 
. ,’ 

Honorable I. 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 

Civil Appeals. 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 *roadsa as used lu 3al.d Seatlou 9 of Mtlcle 8, 

is used in ita st~lctest sensei and does not include bridges. 

~~e~~"rl roads as used lnSeotlon 9 does not include 

, 

. 

EV~KL though the term "roads3 as used in said Seotlon 9.be broad enough to include a tunnel we are of the 

OpitiOlI that the 8XpeUdltuN for these pre i S.rninary expenses 

should still 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 

this expeudlture la oertaitiy for general county purposes and 

should properly be paid from the goneral fund, even though it 

night be held that the aatual oost of the collstructlon of the 

tunnel, Is it uere being paid for by the county Srox its funds 

dertid from the taxes, properly should be paid from the r@d 

and bridge fund. 'Al1 of the servloes heretofore performed 

and to be performed, for which thle~payxeut is to,be made, are 

of 8 fiSC8i nature and are prelSminaPy to the conatructlou of 

the project and has to be coxploted before it can be financed, 

much less actual oonstruotlon begun. In Words aud Phrases, it 

i3 stated that the term "preliniaary" dealing with prelynaw 

expenses, means "that which precedes the mSiu buslness~ 

In Attorney General's Oplulon No. O-781, lt was 

held that the expenses for holding a county-wide eleatloa for 

the purpose of voting a $gO,OOO.OO road bond l3su8, uas PSYable out oS the general fund &the COuPtY* T~u election. 
. s:’ 

i 

. . 

Honorable I. Predecki, page 8 

eqense was merely preliniUWy eXpSX%?n, and w&3 not payable 

out of the R@d and BriBp;e Fund. It was merely "that which 

precedes the nain businkss." The preunary expense involved in the construction of the proposed tunnel 1s certainly for county purposes and 'that uhlch 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 

general fund and made no excoptlons where the election was 

for the purpose 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 Constitution provides: 

I+ l ib no c o unty + l l shall 1Cvy more 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~ 

the holding OF conducting of elections is a county pu??pose wl.thin the meani% of the above quotsd 

coaetitutional provIsion." 

We can 968 I10 distln&ion as a matter of li%v between 

the preliminary expense of holding an election Sop the purpose 

of votlry county-wide road bonds and the expenses involved ln 

the PrelimiIWy matters essential to be completed in order 

that revenue bonds may be Issued for the purpose of construct-, 

lng the proposed tunnel. There Qan be no question but what' 

constitutional funds can only be used for the purposes for 

vhich the tax levy was made. The Road and Bridge Fund can 

only be used for the construction of roads and bridges. In 

the event that the proposed pro'ject Is not finanoed and 

revenue bonds not issued, no road or brLdge (If a tunnel is 

j a road or bridge) ~121 be built end certainly the preliminary 

zatters, such as taking c0res of formations; making traffic 

i investigations to establish the soundness of the projects pre- 

; paring necessqy preliminary design drawingsI prepariag draw1~3 and applications to be filed with the Unlted States Engineers; securing neceosary permits from the United States mgin88rs to build such project; preparing PrelininWi drawin s 

and preparing easements to secure the approval of the Unite 8 

States tiny to perat the passage across the sn Jaclnt0 ReservatTon; securing the passage of vopcr legislstion permittin& 

8nE authorlzine; the construction of the project and the procur 

ing of -vestment ba&ers who are able and WiuW3 t0 assume 
- ‘, . . 

. . 

. . 

.;’ 2. 141 

xonorable I. Prodeck& page 9 

the Smmcing of the cost 0r the project; tha eocurlag of 

nscessary Federal or State permits, easements, ri@tts-ofyz~y, lcases, cosnultments for ln8urances; the nalclng of SWVOYB, soundings, drlvlng of test pilings; prbparatlon of 

uorislrq drawings3 n?aking all specifications; fiiaklng of large 

scale md full sized detailed draulngsj pmparatlon OS applications for Federal or State funds; drafting of Soms of 

proposals and coustructlons and the preparation of the estb 

jztos of quantities and Costa, canRot be considered a8 the 

buildlug of a rood or a bridge., 

It is therefore ou?? opinion that the comissioners’ 

court of Galveston County may authorize the payment of the 

preliminary en&necrtng expenses ia oonmctlon with the proposed Galveston-Bolivar %mzael out of the General Fund. 

in 30 far as 8&e 

ly overruled. 

Our mior Opioion MO. O-543, dated April 4, 1939, 

is in coafllct herevith, Zs hereby expressIn vlmf 

do not ‘believe lt 

of ow answers to the above questions, YB 

~o~oaary to OMYSP your ,Wrd QuestLou, 

Yours very truly 

ATTORUEY ff- OF TEXAS 

d-4++-+ 

Ii, V. Geppert 

, Assista*