General Thomas S. Bishop Opinion No. C-700

Adjutant General Adjutant General's Dept. Re: Constitutionality of Section Austin, Texas 5 ofArticle 5766as amended by House Bill 410, Acts of the 59th Legislature; Regular Session, Chapter 690, page Dear General Bishop: 1601, at page 1604.

You have requested ouropinion on the validity of SeCtiOn 5 ofArticle 5766, Vernon's Civil Statutes, as amended, which reads as follows:

"Section 5. (a) Any member of the State Military Forces going to and returning from any parade, encampment, drill or othermeeting which he may be required by law to attend, shall, togetherwith his conveyance and military property, be allowed to pass through all toll roads, bridges and ferries, free of charge, if he is in uniform and if he presents an order for duty or such identificationas theAdjutant General shallprescribe.“(b) Any member of the StateMilitary Forces who claims the privilege conferred in Subsection (a)when he is not in truth and in fact in the status therein mentioned shall upon conviction thereofbe guilty of a misdemeanor punishable by a fine of not less than Fifty Dollars ($50) nor more than Two Hundred Dollars ($200)."
The question raised in your request 1s whether the above-quoted provisions impair the obligation of the contract entered into by the Texas TurnpikeAuthority pursuant to the provisions of Article 6674v, dated April 1, 1965, the same being a trust agreement pursuant to Section 11 of Article 667b, Vernon's Civil Statutes. Section 502 of the trust agreement reads as follows:

"Section502. The Authority covenants that tolls will be classified in a reasonableway to cover all traffic, so that the tollsmay be uniform in application to all traffic falling within any reasonable class regard- -3373-Gen. Thomas S. Bishop,page 2 (c-700)

less of the status or character of any person, firm or corporationparticipating in the traffic; that no reduced rate of tollwill be allowed within any such class except through the use of commutation or other tickets
or privilegesbased upon frequency or volume and that no free vehicularpassagewill be permitted over the (Tollway) (Turnpike)other than its approaches and service roads, except tomembers, officers, employees, agents and representativesof theAuthority and the State HighwayDepartment,police officers of theUnited States, of the State of Texas and of its political subdivisions,but only when any of them is acting in the discharge of their officialduties."
Section 16 ofArticle I of the Constitution of Texas prohibits the enactment of any law im airing the obligation of contracts. Section 11 ofArticle 667v authorizes the Texas i TurnpikeAuthority to enter into trust agreementsproviding for the issuance of bonds and making provisionsprotecting and enforcing the rights and remedies of the, bond holders. Section ofArticle 6674~provides that the tolls shallnot be subject 12 to or supervisionor regulationby any other commission,board,. bureau of the State.

The Supreme Court of Texas in Texas TurnpikeAuthority
-FT-%-- v. She erd, 279 S.W.2d 302 (1955),in passing~upon the validity Artic e 6674v, recognized that this article granted to the Texas TurnpikeAuthority the power to create contractual obligationswhich cannot be impaired in view of the provisions of Section 16 ofArticle I of the Constitution of Texas; therefore, the questionbefore us is whether Section 502 of the trustagreement createdan obligationwhich is impaired by the provisions of Section 5 ofArticle 5766as amended by the 59th Legislature.

In the case of Travelers' Ins. Co. v. Marshall, 76 S.W.2d 1007 (Tex.Sup., 1934), it was held that the existence of the industrial depression of the 1930's did not authorize the Legislature under thepolice power to enact even emergency legislation of a limited durationwhich impaired the obligation of contractsand thereforeheld invalid the EmergencyMoratorium Law enacted in 1934. Likewise,Lanuever v. Miller, 76 S.W.2d 1025 (Tex.Sup:, 19x&),held invalid for the same reason an act to cancel deficiency judgmentsduring the sameperiod. In Langever v. Miller, supra, it is stated:

"Weare not much concernedw-iththe superfinedistinction sometimesdrawn in discussing the impairment of the obligationof contracts,between the 'obligation'and the 'remedies'for their enforcement. We agree with what the -3374-Gen. Thomas S. Bishop, page 

### 3 (c-700)

Supreme Court ofAlabama said in the case of Sanders v. Cabaniss, 

### 43Ala. 

### 173,188,when discussing legislative encroachments on the judiciary: 'Itis a very clear proposition, that what cannot lawfully be done directly, cannot be done indirectly--nodevice, though it be so cunningly contrived as tomake wrong appear to be right,
can justify it.' It seems to us that the act before us does in fact operate upon and impair the 'obligation'of the contract, in that it nullifies thatportion of the contract, read in the light of the then existing statute, which entitled themortgagee to a deficiency judgment. But, if the statutebe regarded as one which merely operatesupon the remedy or remedies for the enforcement of the contract, it is obvious that it abridges the rights of the mortgagee resulting from the stipulations in the agreement in suchmanner as tomake the contract less valuable,and denies him lawful remedieswhich existed when the instrumentwas executedwithout substituting therefor others equally valuable and equally effective.

**11**

. . . ""'One of the tests that a contract has been impaired is, that its value has by legislation been diminished. It is not by the Constitution to be impaired at all. This is not a question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensingwith any part of its force."' Planters' Bank v. Sharp et al., b How. 301/12 L.Ed. 441/. 11

. . . "'Any impairment of the oblFgation of a contract, is within theprohibition of the Constitution; the degree of im airment being immaterial. 31x, 21 L.Ed. 

### 357. Walker v. Whitehead, 

### 16Wall.

"'By the obligation of a contract ismeant themeans, which at the time of its creation the law afforded for its enforcement. Louisiana v. St. Martin's Parish, 111 U.S. 

### 716,4 s.ct.-648,28 L.Ed. 

### 574;Van Hoffman v. Quincy, 4 Wall. 

### 535, 18 L.Ed. 403.
""While it is undoubted," 

### 6, 6 321), says Ruling Case Law (volume

"that the legislaturemay make changes in the remedy, it is necessary that the contract should be left with the same force and effect, including the substantial
means of enforcement,which existed when it was made."

-3375-Gen. Thomas S. Bishop, Page 4 (c-700)

"'By the same authority the doctrine is announced that themost certain test of impairment is that the value of the contracthas been diminished. 

### p. 329, 8 520.1" volume 

### 6, (Emphasissuppliedby the Court)

stated: In Travelers' Ins. Co. v. Marshall, supra, the Court

"Weare asked, however, to hold that, under the P.l&!&Ey> one of the powers of government (Statev.

, 

### 9 Conn. 190, 

### 113A. 

### 385)vitalizedby emergency conditions, the Legislaturehad the authority to pass themeasure before us. the Bill of Rights, We are asked to do this, although section

### 16, expresslyprohibits the enactment of laws impairing the obligation of contracts. Can we do this?

. . . "Obviouslyall these questionsmust be answered in the negative. This is so because thepronouncements of the Constitutionare 'imperious,supremeand paramount.' As said by a leading authority: "'Necessitythat is higher than the Constitution
can safelyhave no place inAmerican jurisprudence. That principle is necessarilyvicious in its tendency, and. subversive of the Constitution. It should be, and is, limited by the constitutionalinhibitions. * * *The Constitution,and a controllingnecessity antagonistic to its requirements, cannot exist.' , . . "Since the impairment of the obligation of contracts is prohibited by section 

### 16,article 1, of the Bill of Rights, without any specified exception in favor of legislative action to the contrary during industrial depressions
or emergencyperiods, we are withoutpower to write such an exception into the organic law. As saidby one of the Texas authoritiespreviously cited: 'The enactment of laws impairing the obligation of contracts is forbidden by section 

### 1.6

of article 1 of the constitution of Texas. * * * The limitation thus imposed is emphatic,unambiguous andwithout exception; it appliesalike to all contracts and protects all obligations of contracts from destruction or impairmentby subsequent legislation.'9 Texas Jur. p. 

### 541, 6 106.
"However,we will not rest our opinionhere, but out of deference to the importance of the legislation before us, will enter upon an inquiryas to whether or not, in view of the history of the contract clause and the decisions relative 

### -3376-Gen. Thomas S. Bishop,page 

### 5 (c-700)

to it, the police or general governmentalpower may be so applied to it in times of emergency as to permit the legislationhere involved. The meaning which a constitutional provisionhad when adopted, it has to-day; its intent does not change with time nor with conditions; while it operatesupon new subjects and changed conditions, it operates with the samemeaning and intent which ithad when formulatedand ado ted. 

### 6 Ruling Case Law, p. E6, 9 Texas Jur. p. 427, 6 18; E 39; Cooley's Constitutional Limitations 

### (8thed.) vol. 1, p. 123. As Judge Cooley says: 'Aconstitution is not be to made to mean one thing at one time, and another at some subsequent time when the circumstancesmay have so changed as perhaps tomake a different rule in the case seem desirable. * * * It is with special reference to the varyingmoods-of public opinion, and with a view to putting the fundamentals of government bevond their control. that these instruments are framed. *"* "Themeaning of-the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upcn it.' -Cooley'sConst. Lim. vol. 1, pp. 123, 124.'"(Emphasis supplied by the Court). Applying the above-quotedprinciples announced in the foregoing authorities as well as the authorities cited in Travelers' Ills. CO.~V. Marshall, supra, and Lanpever v. Miller, supra,we are f th i

. that Section 5 ofA ti 1 !f(bb 509th~e~%%~re as amended by the is unconstitutionilio: the reason that itsprovisions impair the obligations of the Texas Turnpike Authority created by the trust agreement entered into pursuant to the provisions of Section 11 ofArticle 

### 6674~. The trust agreement specifically obligates theAuthority to prohibit free vehicular traffic over the turnpike other than those excepted from itsprovisions, while Section 5 enacted subsequent to the creation of the obligation above noted specificallyprovides that certain personnel not excepted in the trust agreement shall be allowed free use of all toll roads.

This opinion is not to be construed as prohibiting the State from making free use of the turnpike for its State militia when the'statemilitia Is called out by the Governor to aid in the enforcement of the laws in times of public danger. In such event, the members of the Statemilitia are held to exercise the same authority as thatwhich a peace officermay exercise. 57 Corpus Juris Secundum 1098~1099, Militia Section 21, and authorities cited therein. Therefore, in such event,members of the State militia would constitutepersonnel specifically excepted in the Trust Agreement.
-3377--

. Gen. Thomas S. Bishop, page 6 (C-700)

SUMMARY
Section 5 ofArticle 5766, Vernon's Civil Statutes, as amendedby House Bill 410,Acts of the 59th Legislature, providing that certain personnel of the Statemilitary forces under certain conditions shallbe allowed free use of toll roads in this State,violates Section 16 of Article I of the Constitution of Texas for the reason that it impairs the obligation of a contract entered into by the Texas TurnpikeAuthorit pursuant to theprovisions of Section 11 ofArticle 667 v,

t Vernon's Civil Statutes.

Yours very truly,

WAGGONER CARR Attorney General
By:

. -8?$q $&& .dohn Reeves <-' Assistant Attorney General

JR:sck

APPROVED:

OPINION COMMITTEE

W. V. Geppert, Chairman Pat Bailey Milton Richardson James Strock

APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright

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