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December 7, 1949

Honorable A. C. Winborn District Attorney Harris County Houston, Texas Opinion No. k-954.
Re: Liability of flood control and navigation districts for motor vehicle registration fees and sales taxes.
Dear Mr. Winborn:

You request our opinion on the following question: -. _. “Are the Harris County Navigation District and the Harris County Flood Control District. legally liable for the one per,cent (1%) Motor Vehicle Retail Sales Tax, also are these districts legally liable for the payment of the registration’fees o* license tax on motor vehicles ,owned and operated by them,? ”
We appreciate the excellent brief submitted with your request and agree with your conclusion.

By Section 2, Article VIII of the Texas Constitution. the Legislature is authorized to exempt public property used for public purposes from taxation. Inpur.suance to this authorization the Legislature has exempted all property, whether real or personal. belonging exc+sively to this State, or any political subdivisionthereof. Art. 7150,~sec. 4, V.C.S.

The districts in question were created and incorporated under laws enacted pursuant toSection 59, Article XVI of the Texas Constitution, and are political subdivisions ofthe State. Lower Colorado River Authority v. Chemical Bank and Trust Co., 134 Tex. **326** 190 SW 2d 48 (1945)

. . Infact, Section 59 Article VIII express+. ly siates ‘which districts’s’lrali be governmenial agencies and bodies politic. ”
You state in **your** question that the motor vehicles are owned and operated by the districts in question, To be exempt they have tobe both owned by a political subdivision. that is, ‘public property” and used exclusively for public purposes. If these districts are operating these motor vehicles in the furtherance ofthe purposes for .which they were created then the motor vehicles are exempt from all taxation.

# ;p,98 Honorable A. C. Winborn. Page 2 (V-955)

The Supreme **Court** ofTexas in Lower Colorado River Authority v. Chemical Bank and Trust Co., supra, inconstruing Thevalidity ofSection 4a, Article 7150, V.C.S., stated in part:

‘(5) Nor can the force ofArt. XI, Sec. 9. of theA Constitution ofthis state, be destroyed in this case by any application ofthe doctrine of ejusdem generis. It is contended that under that doctrine thefact that the words ‘all other property devoted exclusively to the use and benefit ofthe public’ follow the language ‘public buildings and the sites therefor. fire engines and the furniture thereof, and all property used, or intended for extinguishing fires, public grounds’ limits the application ofthe exemption to public buildings.and grounds and hnything used tofight fires. We do notbelieve theframers ofthe Constitution ever intended ‘that the exemption should be so narrowly applied, otherwise the purpose ofthe exemption wbuld.be largely-defeated. **To** apply the doctrine of ejusdem generis inits strict sense would mean that government in Texas could engage m the-senseless process of taxing itsell, the net result ofwhich would be but to take its own money out ofone pocket for ‘thepurpose ofputting it into another,- less the cost ofassessing and’collecting the tax. Obviously that procedure could never accomplish anything but an idle expenditure of public funds. See State of New Mexico v. Locke. 29 N. M. 148. 219 P. 790, 30A. L.R. 407. (Underscoring **ours.)**

‘To illustrate, parking meters are now maintained innearly every city of’any importance toassist in providing funds with which the cities may purchase and operate fire fighting machinery, own public grounds, erect public buildings and otherwise perform their functions. To the extent of the revenues they yield, the meters relieve the cities ‘ofthe necessity of raising those funds by general direct taxation. Therefore, to tax them would mean thatwhat is taken by taxation, plus thecost incident tothe orocess. would have to be made uninsome other~formbf taxation. Again, road machineiy owned and used exclusively by a county in constructing and maintaining public roads, trucks, owned by the state and used exclusively by it in transporting food and other essential supplies to its eleemosynary institutions and literally hundreds of other Items ofpersonal proper owned by the public and used exclusively for public puroses would be liable to taxation at the will ofthe legislature, merely because they cannot **be** classified as public buildings, public grounds or tnstrumentallties for extinguishing tires. (Underscoring ours.)’ Honorable A. C. Winborn, Page 3 (V-955)

“Thus this **court** early and unequivocally denied thedoctrine that the legislature has the power to tax all publtc pr’operty except **courthouses,** jails, fire fighting apparatus, school buildings, playgrounds, libraries, public parks, and the like. Itannounced inunmistakable language that the iegislature is without power~‘to tax any property publicly owned and held only for public purposes and devoted exclusively to the **use** andbenefit of the public. Yet the Constitution has never been amended either to modify or overrule those clear declarations; nor,~in sb far 9s we are’advised.‘has any attempt ever been made’s’0 as toamend it. So’it is not for us now toquestion them. We hold, therefore, that Sec. 4a. ofArt. 7150, Vernon’s Ann.’ Civ. St.. supra, is void.”
It’is therefore our opinion that neither the Harris CountyNavigation District nor the Harris County Flood Control District is liable for. the payment of registration fees or license taxes or the motor vehicles retail sales or use tax on motor vehicles owned by them which are used exclusively for public purposes.

This office during a prior administration in 1940 rendered Opinion O-2609 inwhich it held that water improvement districts were not ellempt from payment of motor vehicle license fees. This 0pinio.n recognized that such districts were political subdivisions ofthe State:and were exempt from taxation, but based its holding on the proposition that the license fee exacted for the registration ofmotor vehicles was not a tax. It cited the case ofAtkins v. State Highway Department, 201 S.W. 226 (Tex. Civ. App. 1918, error ref. ,as the authority for this holding. We have carefully studied this case and find thatAtkins was resisting the payment of the registration fee on the ground that itwas a property tax and was in violation ofthe equal and uniform provision of the Texas Constitution, Article VIII,. Section 1. The **court,** after afull discussion thereof, held that the’sum ofmoney which Atkins was required topay was not a tax on ownership, **but** a license fee for the privilege of operating his automobile on the public highways of the State. Itwill be noted that the court did not state that the license tee was not a%, but that itwas not a nronertv tax.

Subsequent thereto the Supreme **Court** of Texas, in Payne v. **Massey,** 145 Tex. 237, 196 S.W.2d 493 (1946). stated:

“Article 6698 is a part of Section 2. of Title 116, Chapter 1. Vernon’s Ann. Civ. Stat. dealing with the regulation and registration of motor vehicles. Under such title the State exacts a license or registration fee

rivile e tax in the nature of a license or %ct?st~e%&h’&?%ghways ofthis State. Blashfield’s Cyclopedia ofAutomobile Law and Practice, Perm. Ed., Vol. 1, Sets. 212, 213. 214.”Honorable A. C. Winborn. Page 4 (V-955)

In Louwein v. Moody. Tax Collector,:12 SrW.2d 989 (Comm. App. Ivzv) the court referred to the registration **statutes** as imposing a ‘fee’ or ‘tax”

.

We therefore overrule Opinion No. o-2609.

SUM~MARY
Neither the Harris County Navigation District ’ nor the Harris **County** Flood Control District is liable for the payment ofregistration fees or license taxes or the motor vehicle retail sales or **use** tax onmotor vehicles owned by them which are used exclusively for public purposes. Tex. Const. Art. VIII, Sets. 2and 59. Art. 7150, Sec. 4. V.C.S.
Yours very truly
ATTORNEY GEN-L OF TEXAS

W. V. Geppert Assistant
WVG/mwb

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