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GROVER SELLERS

xQ[Ltw~-xxxx AUSTIN 1,. TECXAS Arn”_NnnY“xcN”R.4,*

Honorable R. 6. Wyche County Auditor Gregg County Longview, Texas
Dear Mr. Wyche: Opinion No. O-6243 Re: Articles 1694. 1683, 1689 and other related articles on county libraries.

Your opinion request of recent date has been received in this office andwe quote from same as follows:

“Facts: (1) There are three libraries in Gregg County operated by three incorporated cities. Two ofthese libraries have a legal certified librarian.

“(2) There is no library fund in the current budget beginning October 1. 1943, and ending September 30, 1944.

“(3) Contracts have been entered into by the Com- .missioners’ Court of Gregg county and the three cities. (Copy ofcontracts inclosed.)

““(4) The Court passed an order on the 14th day of August, 1944, authorizing the County Judge to enter said contracts and authorizing the issuance ofawarrant in the sum of $3,333.33 to each ofsaid three libraries

. D0payable out ofthe General Fund surplus a& (Copy oforders inclosed;) Said sums are intended as the annual amount for each of said libraries,

““Questions: (1) Does Article 1694, Vernon’s, authorize the Court to contract with each such library, independent of Article 1689 and 1683, Vernon”s, and other articles relating to county library?

**“ (2)**  **If** the **court may**  **contract** with each library must each have certified librarian toapprove bill and claims paid out ofthe sum provided for each library as provided bythe warrant above specified - ifno county librarian is named or provided with author’ity to approve brlls and clarms. etc, 7. .’

Hon. R. S. Wyche. page 2 (O-6243)

“(3) What is the meaning of ‘such contract shall provide that such established library shall assume the functions ofa county free library within the county* and

‘said court may contract to pay annually into the library fund of said established library such sums as may be agreed upon a
. .’as used inArticle 16947

“(4) Must acertified county librarian approve for payment bills and claims inall c’ontracts that the court may make with established libraries ?

“(5) Under the terms and conditions ofthe contracts above mentioned (copy inclosed and or~ders ofthe court also inclosed) will the payment ofsaid warrants issued each such library violate article 3, section 52, ofthe Constitution ofthis State ?”

Article 1677, Vernon’s Annotated Civil Statutes, pr~ovides as follows:
“The commissioners court ofany county may establish, maintain and operate within their respective counties, county free libraries in the manner andwith the functions prescribed inthis title. The said court shall also have the power and authority to establish in coo-operation with another county or counties ajoint free county library for the benefit ofthe co-operative counties. (Acts 2nd C.S., 1919, pa219)“

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,Article 1679. V.A.C.S.~, provides:

‘“After a county free library has been established, the commissioners court shall annually set aside from the general tax fund ofthe county, a sum sufficient for the maintenance ofsaid library, but not to exceed five cents on the hundred dollars valuation ofall property in such county outside ofall incorporated cities and towns already supporting afree public library, and upon all property within all incorporated cities and towns already supporting afree public library which have elected to become a part ofsuch free library system provided in this title for the purpose of maintaining county free libraries and for purchasing property therefor.”

Article 1689. V.A.C.S.~, provides:
“All funds ofthe county free library shall be in the custody ofthe county treasurer, or other county official, who may discharge the duties c,ommonly delegated to the c~ounty treasurer. They shall constitute a separate fund tobe known as the county free library fund, and shall not be used for anyHon. R. S. Wyche. page 3 (O-6243)

other purposes except those ofa county free library. Each claim against the county free library shall be authorized and approved by the c,ounty librarian, or in his absence from the county, by his assistant. Itshall then be acted upon in the same manner as are all other claims against the county.”

Article 1690, V.A.C.S., provides,:
“After the establishment ofa county free library the governing body ofany incorporated city or town in the county. maintaining afree public library, may notify the commiss~ioners court that such city or town desires to become apart of the county free library **system,** and thereafter such city or town shall be a part thereof, and its inhabitants shall be entitled tothe benefits of such county free library, and the property within such town or city shall be included in computing the amount to be suetaside as afund for county free library purposes.”

Article 1691, V.A.C.S, provides:
“The commissioners court wherein a c’ounty free library has been established under the provisions ofthis title, shall have full power and authority to enter into contracts with any incorporated city or town maintaining a public free library, and such incorporated city or town shall through its governing body, have full power to enter into contracts with such county to secure to the residents ofsuch incorporated city or town the same privileges ofthe county free library as are enjoyed by the residents of such county outside ofsuch inc~orporated city or town, or such privileges as may be agreed upon in such contract, upon such consideration to be named in the contract as may be agreed upon, the same tobe paid into the county library fund, and thereupon the residents of such incorporated city or town shall have the same privileges with regard to said county free library as are had by the residents ofsuch county outside of such incorporated city or town, or such privileges as may be agreed upon by contract.m

Article 1693,. V.A.C.S,, provides:
“The commissioners court ofany county, wherein a county free library has been established under the provisions ofthis title, shall have full power and authority to enter into contracts or agreements with the commissioners court ofany other county to secure to the residents ofsuch other county such privileges of such county free library as may, by such contract, be agreed upon. the same tobe paid into the county free library fund, and thereupon the inhabitants of such other county shall have the privilege ofsuch county free library asHon. R. S. Nyche, page 4 (O-6243)

may by such contract be agreed upon; and the commissioners cour’t shall have full power and authority toenter into a contract with the commissioners court ofanother county wherein a county free library has been established. under the provisions ofthis title and shall have power to provide for and to set aside a county free library fund, inthe manner already set out, for the purpose of carrying out such contract. But the making of such contract shall not bar the commissioners court ofsuch county from establishing a county free library therein. and upon the establishment ofsuch county free library such contract may be terminated upon such terms as may be agreed upon by the parties thereto, or may continue for the term thereof.*

Article 1694,. V.A.C.S., provides:

“Instead of establishing a separate county free library, upon petition of a major’ity ofthe voters ofthe county, the commissioners court may contract for library privileges from some already established library. Such contract shall provide that such established library shall assume the functions ofa county free library within the county with which the contract is made, including incorporated cities and towns ther,ein. and shall also provide that the librarian of such established library shall hold or secure a county librarian’s certificate fr’om the State Board of Library Examiners. Said court may contract to pay annually into the library fund of said established library such sum as may be agreed upon. tobe paid out ofthe county library fund. Either party to such contract may terminate the same by giving six months notice of intention to do so. Property acquired under such contract shall be subject todivision at the termination of the contract upon such terms as are specified in such ‘contract. D,The br.oad purposes and intentions ofArticles 1677-1696, supra, are to provide free library services for the citizens ofthe county. Also. these articles set upthe standards fbr such free library service. The librar~y service provided for in these articles may be obtained in either oftwoways: (1) the county may establish, maintain and operate its ownfree library system as provided inArticles 1677, 1678 and 1679;

‘or (2) the county may contract for such services as provided inArticles 1693 and 1694.

When a county establishes its own library system, its services **may** be extended to include the residents ofincorporated cities **or** towns, either (1) byjoinder with a city or town at the request ofits governing body, as provided inArticle 1690, or (2) by contract with a city or town as provided inArticle 1691. Ineither event, the county library maintains its identity as a county free library, established, maintainedHon. R. S. Wyche, page 5 (O-6243)
and operated as such. Incase the city 9r town enters into a contract with the county for library services~, the county is in the position of owner., manager and operator ofthe library system while the city or town is in the position ofa subscriber for library services

Onthe other hand. instead ofestablishing, maintaining and operating its ownfree county library system. the county may contract for library privileges from (1) another county which has established a county free library inaccordance with the provisions ofArticle 1693, or (2) the county may contract for library privileges from “some already established libraryn (Article 1694). Ineither event, the other county libr,ary or the other “already established library” maintains its identity as the owner? manager and operator of its already established library, and the county, by virtue ofits contract. authorized byArticle 1693 or

‘1694, becomes a subscriber for the services ofsaid library.

Itshould be noted thatwhen a c,ounty, in lieu ofestablishing, maintaining and operating its own library, contracts for library services with either another county or another “already established library,s the county receives library services equivalent tothose itwould have if it had established, maintained and operated its own county library. Article 1693 provides that the contract may be made with another county which has established afree library in accordance with the provisions ofthis titleDThus, such county contracting for services in lieu ofhaving its own library, receives services that measure upto the standards required for a free county library. Article 1694 provides that the contract “shall provide that such established library shall assume the functions ofa county free library within the county with which the contract is made, including incorporated cities and towns therein, and shall also provide that the librarian ofsuch established library shall hold or secure a county librarian certificate from the State Board of Library Examiners,” thereby providing a means whereby the county entering into such a contract may have the kind of library service contemplated by this title without such county having to establish, maintain and operate its own library.

Itis also noted that in the caption ofthe original act. pertaining tocounty libraries, S.B. No. 147, Ch, 117, Gen’l Laws of Texas, 34th Legislature. 1915, the language, in part, is as follows:

““AnAct to establish. maintain, operate, equip and disestablish county free libraries and county circulating libraries for the use ofthe citizens ofthis State ~D~and also authorizing the commissioners court in lieu of establishing free libraries and circulating libraries to enter into contracts wrthfree lrbrarzes m any ofthe crtres and towns ofthis State Do0w (Underscoring ours)

The language is indicative that the purpose of Section 19, S.B. No. 147, Ch. 117, Gen’l Laws of Texas. Regular Session 34th Legislature. 1915’, as amended by Section 20, S. B-No. 149, Ch. 57sGen’l Laws of Texas sRegular Session 35th Legislature. 1917. as amended by Section 20, S. B. NO. 80, Ch; 75, Gen”1 Laws of Texas, 2nd Called Session. 36th Legislature, 1919, and changed by the codification of 1925 (R.CtiS., 1925 Article 1694) to read as cited herein, Article 1694. V. A. C. S., was to provide a means of having library serviceHon. R. S. Wyche. page 6 (O-6243)

without the county’s establishing, operating and maintaining a county library as such, but, in lieu thereof, the county is authorized, by virtue Of a contract, to subsc’rrbe tothe services ofan “already established Iibraryk equivalent to services it could have received had such county established a library of its own, and a c’ounty is further authorized topay for such services inan annual payment from the library fund.

Inview ofthe foregoing, we shall answer your questions categorically. (1) Article 1694 authorizes the commissioners’ court to contract with an “already established library,” such as each ofthose referred to inyour inquiry. The contract must provide, among other things, that the librarian ofthe “already established library” shall have a proper certificate. This provision ofArticle 1694 is in lieu ofthe provision of Article 1683 requiring a county librarian to be appointed by the commissioners’ court, for that appointment ofa librarian by the court is applicable to a situation where ,thecounty establishes, operates and maintains its own library. and notwhere the county contracts or subscribes for library services from an “already established library.” Since Article 1694 authorizes a lump sum or annual payment for library services, this provision is in lieu ofthat part ofArticle 1689 referring to approval of claims by the county librarian, for that part ofArticle 1689 (concerning the librarian’s appr~oval ofclaims) has reference to a situation where the county has established its own library and has appointed its own librarian. rather than to a situation where the c’ounty subscribes, for a lump sum or annual payment, for library services in lieu ofestablishing its own library, as provided inArticle 1694.

(2) Inview ofthe foregoing discussion, this question is answered inthe negative.

(3) The language. ‘such contract shall provide that such established library shall assume the function ofa county free library within the,con&y,’ .&asreference-to the service which the “already established Ubrary”‘mu&providt; that is. the .sarmeservice that a library ,owaed.and olpuaied by ,+hecmmty wnukk.prwizk-,andrr the provisions of this title- ,Thenn&ractrnay-cnntain ,such-prwvksions withrefer.ence to the f.uncfier and s:eieices~af,tfte~-~ary,as rosy be agreed upon by the parstiesthereto, .said provisions to be in acrnrd with the attainment ofthe objective of library service within the scope and purview ofthis title.

With reference to the language ofArticle 1694, ‘“said court may contract to pay annually into the library fund of said established library such sum as **may** be agreed upon.V+ it is our interpretation that said language provides a single annual consideration from the county inexchange for the library services by the already established library, said services tobe inaccordance with the contract authorized by Article 1694. InSection 20, S.B. No. 149, Gh. 57. Gen’l Laws of Texas, Regular Session.* ,

Hon. R. S. Wyche. page 7 (O-6243)

35th Legislature, 1917, and in Section 20, S. B. No. 80, Ch. 75, Gen’l Laws of Texas, 2nd Called Session, 36th Legislature, 1919, we find the following language:

“The Commissioners Court may contract to pay annually into the library fund ofsaid established library such sum as may be agreed upon, Said sum shall be paid out of the county library fund provided for in Section 12 ofthis Act.”
Section 12 ofsuch act uses the identical language ofArticle 1679, V-A,- C.S.

Since the provisions ofArticle 1694 are in lieu of, or take the place of, the “establishmentw ofa county free library, the fundfrom which the annual payment is tobe made is the library fund set upunder the limitations as to the total amount under Article 1679, and inaccordance with Article 1689. as to the designated and specific use of said fund. Under the foregoing limitations, the commissioners’ court is authorized to “contract to pay annually into the library fund ofsaid established library such sum as may be agreed upon to be paid out ofthe county library fundam (4) The claim for the payment ofthe annual sum for library services under the terms ofthe contract would be allowed and ordered paid by the commissioners’ court in the same manner that any other claim for services rendered the county under a contract would be allowed and paid. The approval by a certified librarian would not be required, for under the provisions ofArticle 1694 the plan ofan annual or lump sum payment is in lieu ofthose provisions with reference to the approval of claims by a certified librarian, which provisions are applicable toa situation where the county establishes, maintains and operates its own library, and has its own librarian, and not where the county contracts or subscribes to the library servic,e from an ““already established library.w

(5) Article 3, Section.52, Constitution of Texas provides, in part, as follows:

““The Legislature shall have no power to authorize any county, city, town or other political corporation or snbdivision ofthe State to lend its credit or to grant public money or thing ofvalue inaid of, or to any individual, association or corporation, whatsoever, or tobecome a stockholder in such corporation, associatiola or company; ee0O”

The Austin Court of Civil Appeals in the case of Bland, et al. vs. City of Taylor. et al, 37 S.W.(2), 291, in considering the **applica** bility of theabove set out provision cf the Constitution, together with Astitle 11. Section 3, ofthe Constitution, which prohibits any county, city or municipality from masking any appropriation or donation or inany wise, ._-

HOILR. S. Wyche, page 8 (O-6243)

loaning its credit to any private corporation or association, said the following:
“These provisions clearly contemplate and prohibit, we think, benefits at public expense attempted inbehalf of individuals, corporations. or associations, as such. acting independently and conducting some enterprise oftheir own. such as are usually conducted for profit and commercial in their nature. m

Inthe case of Davis, et al. vs. City of Taylor, et al, 67 S.W. (2) 1033. inwhich thejudgment rendered in Bland, et al. vs. City of Taylor, et al. supra. was affirms d, the Supreme Court of Texas said thefollowing:
“Article 8, Section 3, ofthe Constitution provides:

‘Taxes shall be levied and collected by general laws and for public purposes only.’ --~Suffice it to say that, unless a court can say that the purposes for which public funds are expended are clearly not public purposes. itwould not be justified inholding invalid a legislative act - - pr.oviding funds for such purposes.*

Therefore, we do not believe that such a contract. or contracts, as we have discussed herein, would violate any provision ofthe Constitution of Texas, as the expenditures herein mentioned are for c~ountylibrary services for the citizens ofthe county. Furthermore such service is clearly public innature. and. the expenditure is not for a commercial purpose. Inconnection w,iththis question, we point out that we are not here ruling ontheform or substance ofyour contracts or the order ofthe commissioners* court. as we believe youwill have no difficulty inconforming them. ifnecessary, to our holding herein.

You are further advised that before such funds should be paid out, such expenditures must have been authorized in the county budget. Trusting that the foregoing satisfactoxily answers your inquiry, we are Yours very truly Approved NOV 21;1944 /s/ Carlos C. Ashley ATTORNEY GENERAL OF T~EXA.9 &i&t Assistant - Attorney General

SAE:sd/cm By /s/ J.A. Ellis J.A. Ellis Assistant This Opinion considertd and approved in limited c’onference