Honorable B. F. Reynolds

CountyAttorney -. Throckmorton,Texas

Dear Sir: OpinionNo.‘O-1159 Re: Can a commissioners"couH~ use money that has been voted for the purpose of building county highways for purchasing a~site for a state hlghwagwarehouse?

Your request for an opinion on the above-statedquestion has been received by this office.

Articles 701, 702 and 703, Revised Civil Statutes, read as follows: .~

"Article701. The bonds of a county or an incorporated city or town shall never be issued for any purposeunless a proposition for the issuance of suchbonds shall havebeen first submitted to the qualified voterswho are Fropertg tax payers of such county, city or town.
"APtlCl8702. In all caseswhen the governing body of a county, city or town shall order an election for the issuance of the bonds of the County, city or town or of any political subdivisionor defined district of a county, such body shall at the same time submit the questlon ofwhether or not a tax shallbe levied upon the property of such county, city or town, political subdivisionor defined district for the purpose of paying the Intereston the bonds and to create a slnklng fund for the redemptlon of the bonds."

~'"Art. 703. The proposition to be submItted shalldistinctly specify:

"1

. The purpose forwhich the bonds are to be issued;

"2

. The amount thereof;Honorable B. F. Reynolds -page 2 O-1159

“3

. The rate of Interest;
“4. The levy of taxes sufficient to pay the annual lnteres-t

and prOVfd8 a sinking fund to pay the bonds at maturity;

“5

. The maturitydate, or that the bonds may be issued to mature seriallywithin any given number of years not to exceed forty."
Articles 6663, 6673 and 6674b transfer to the Stat8 Highway Commission jurisdictionover highways of the.State' whkh commissioners'court previously had. Article 6674q-4 reads as follows:

"All further .lmprovementof said State Highway System shall be made under the exclusive and direct control of the State Highway Department and with appropriationsmade by the Legislature out of the Stat8 Highway Fund; Surveys,plansand speclflcations and estimates for all further construction and lmprovement of said System~~shall be made, prepared and pald.forby th8 State Highway Department. No fufth8r improvementof said System shallbe made with the aid of orwith any moneys furnishedby the counties except the acqulsltfori of rights of way which may b8 furnishedby the counties, their subdlvislons or defined road districts. But this shall In no wise affect the carrying out of any binding contracts now existingbetweecthe State Highway Department and the CommissionersCourt of any county,
for such county, or for any defined road district. In the development of the System of Stat8 Highways &x3 the maintenance thereof, the Stat8 Highway Commission shall, from funds availabl8 to the State Highway Department, provide:
"(a) For the efficientmaintenance of all highways comprisingthe State System.
"(b) For the construction, in cooperationwith the FederalCovernment~'to the extent of Federal Aid to the State, of highways of durable type of the greatest public necessity.
"(c) For th8 construction of Highways, perfect: lngand extendinga correlated system of State Rlghways, independentlyfrom State Funds."

The case of Iverson et UX v. Dallas County, 110 S. W.Honorable B. F. Reynolds -page 3 O-1159

(2) 255 held among Other things that Articles 6663, 6673, 6673a, and 6674b, and the amendments thereto, attempting to set up a completeuniform system of state hlghways,and authorizing Highway Commissionersto take over Stat8 hlghways, stripped
COUntieS Of any authority to l8t Contracts for th8 construction
ormaintenance of any public road comprisinga portion of'the statehighway system, either in'thelr own'names or as agents of the State, except In sp8ciflc Instancesand strictly in keepingwith the provlslons of the Acts. -'

The money mentloned inyour telegram,we presume, Is money derived from the sale of bonds duly authorizedby the qualifiedvoters for the purpose of building county highways. _~ W8 quote from Texas Jurisprudence, Vol. 21, p. 686, as follows:

"It Is elementary that the funds derived from the sale of bonds may not be diverted from the purposes sp8cified ln the prOpOsitiOn submittedto the 8I8CtOrS. If fOIIOWs that Wh8r8 a departure from the propositionappearing on the ballot paper Is alleged, the only question before the court 1s whether the expenditurecontemplated lSwlthln or without the propositionupon Its true construction. Construingpropositions to this end; it has b88n held that 'road'includesa bridge'constltutinga necessary link in the road, and that 'turnpikes'
mean hard-surfacedroads, not necessarily tollroads. And, seeing that both propositions leave the specificallocation of the funds to the corn-. missioners'court, there is no variancebetween a proposition for expenditure on roads 'throughout' the countyand an order for issuance of bonds for construction 'withinand for' the county."
-. Also see thecases ofAransas Countyv. Coleman-FultonPasture co., 191 S.W. 553; Heathman v. Slngletary, 12 S.W. (2) 150; Hugglns V.~Vaden, 259 S.W. 204; and Grayson County v. Rarrell, 202 S.W. 160.

We quote from the case of Carroll v. WlI.llams, 202 S.W. 504, decided by the Supreme Court, as follows:

"* * *section 9 of article 8 of our state Constltution~** * inhibitsany and all transfers of tax money frOm~On8-toanother Of the s8VercIaSSeS Of funds therein authorized, and, as a sequence;the expenditure, for one purpose therein defined, of tax money raised ostensibly for another such purpose.Honorable B. F. Reynolds - page 4 O-1159

The immediatepurpose in soprescribing a separate DEhXimLUU

tax rat8 for each Of the classes of purposes there enumerated is,no doubt, to limit, acc~ordingly, the amount of taxeswhich'may be raised from .the'peopie, by taxation,declaredly for those severalpurpOS8S or classes of purposes,respectively. But that Is not all. The ultimate and practical and obvious design and purpose and legal effect Is to Inhibitexcessive expendituresfor anysuch purpose or~class of pUrpOS8S. By necessary implication said provisions of section 9 of article 8 were designed, not merely to limit the tax rate for certain th8r8lndesignated pUrpOS8S,but to require that any and all money raised by taxation for any such purpose shallbegapplied, falthfullg, to that part,icular purpose, as needed therefor,and not to any Other purpose or use whatsoever. Those constitutionalprovisions control,not only the raising, but also the application, of all such funds; * * *

I'True, the Constitutiondoes not say;ln So. manywords, 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 genera1 C1asS8S Oft purposesde' fined-andapproved in said section 9 --but that,we think, is Its plain and certainmeaning and legal effect. The very definitions of those several classes of purposes, and th8'declarationof authority to tax the people therefor,r8Sp8CtiVe1y, COUpled, as they are, ineach instance,with a limitation of the tax rate for that class, must haV8 been predicated UpOnthe expectationand intent that, as a matter of common honesty and fair dealing, tax money taken from the people ostensibly for one such specifiedpurpose shallbe expended, as needed, for that purpose alone, as well as that the tax rate for that particular class, In any one gear, shall not exceed th8 prescribedmaximum."

Alsb see the case of Commissioners' et al v. Burte et al, 262 S. W. 94. Court ofHenderson County

In Vf8W of the foregoingauthorities, you are resptktfully advised that It Is the OpinFon of this department that the Commissioners' Court cannot use money that Is derived from the sale of~bondsduly issued for the purpose of building county highways for purchasing a site for a stat8 highway Warehouse.Honorable B. F. Reynolds - page 5 O-1159

Trusting that the foregoing answers your inquiry,we remain

Yours very truly

ATTORNEY GENXRAL OF TEXAS

By s/ArdellWlllliXms ArdellWlllltims Assistant

AW-MR-WC

APPROVED JDL 31, 1939 s/W.F. Moore FIRST ASSISTANT ATTORNEYGENERAL Approved Oplnlon CommItteeBy s/RWF Chairman