Mr. Jack N. Fant Opinion No. WV-1423

County Attorney Room 201 Re: Whether certain lots and City-CountyBuilding the permanen.t improvemen~ts El PL~SO,

Texas and per;onul propertie.- thereon are exempt from ad valorem taxe.;

as b)pui3- Dear Mr. Fant: lit library.
You have asked the opinion of the Attorney General as to whether certain town lots in the City of El Paso, Tex-i~, .ind the permanent improvements thereon together 1~3ththe personal properties therein are exempt from Texas ad valorem taxeu. Such exemption is claimed by the owner of theiie properties on the basis that the properties are a public library and exempt from ad v-aloremtaxes by Article 7150, subd. 8, Vernon's Civil Statute;which is as follows:

"The following property shall be exempt from taxation, to-wit:
8.' Public libraries. -- 9.11 public libraries and personal propertybelonging to the ;:cme."

PERTINENTFhCTS
A
. The Real Estate and Improvements The real estate in yue.,tionis lots 17, 18, 19 and 20 in block 69 of Franklin Heights Addition to the City of El Paso, Texzs. This realty, in the aggregate, fronts 100 feet on Montana Street and is bordered on one side by Brown Street to a depth of 120 feet. The property is zoned a3 apartment. Improvement, consist of a -t:'io+tory building (constructeti a.j a private dwelling)with a full basement; the building is approximately56 feet by 49 feet in size. On the rear portion of the tract of land is a two-story combinationgarage and servant1

j quarters. The improvementsare approximately fifty years old and are not modern, though they have been remodeled to some extent tomeet the needs of the present owner and user.Mr. Jack N. Fant, page 2 Opinion No. W-1423

Themarket value of the realty and permanent improvements has been appraised at $42,200. This property is at a locationwhich is convenientlyaccessible to the public as a library.

B. Ownership of the Propertiesunder Consideration Title to the realty and permanent improvements is vested in fee in the El Paso County Medical Society, a private Texas corporationwhich is now subject to the TexasNon-Profit CorporationAct. The purpose clause of the charter of this corporation is as follows:

"Thepurposes of this corporation shall be to associate in a singlebody the duly licensed and regular practitioners ofmedicine in El Paso County, Texas, for the purpose of promoting medical knowledge, elevating the standard ofmedical education, encouraging free intercourseamong itsmembers, and inculcatingprinciples of professional ethics orotectinn itsmembers against impositions,establishinga library for the use of itsmembers, dispensing charity among the worthy sick, and assisting in upholding and enforcing the laws enacted to protect the public against any who may offer to practicemedicine in violation of the laws of the State of Texas." (Underscoringadded). The realty and improvementshave vested under the terms of the will of S. T. Turner,deceased,who devised the property to the El Paso CountyMedical Society, its successor or successors, I,

. . . to use as a club house, library or any other useful purpose to which theymay from time to time desire to appropriate it, to be known as the Turner Home of the El Paso CountyMedical Society."

c. Facts Pertinent to the Operation of the Property as a Public LibraryMr. Jack N. Fant, page 3 OpinionNo. NW-1423

Tne followingmore pertnent and controlling facts have been furnishedby you:

"1. Floor Space 7248 SquareFeet. 4 rooms and hall on each floor. "1st floor: by 174 ft. Library Space 48 ft

Hall 52 ft by 12 ft. Reading Room 25 ft x 17 ft. "Kitchenand two pantries 27 ft by 17 ft. Powder room and storage room 4 ft by 17 ft. "2d floor: by 17+ ft. Assembly room 52 ft

Hall 52 ft by 12 ft. Ladies Lounge, bath and closet 25 ft by 17 ft. Storage rooms 27 ft by 17 ft.
"Rasement: Furnace room. Storage room for books and periodicals884 Sq. ft. Hall 624 Sq. ft. Storage rooms used by the City Museum 52 ft by 17+ ft."2. About 1945 sq ft used for library. 1265 sq ft formaterial and reading room. 680 sq~ft used for star,- age. Librarian's office is in the library proper. About 2,000 sq. ft used by City Museum for storage. (This is donated by the Society.) Kitchen and pantries, furnace room and halls.

“3. The El Paso County Medical Societymeet once a month fr,om6 p.m. to 9 p.m. The Ladies Auxiliarymeet during the wintermonths from 10 a.m. to 12~30 p.m.

“4. The library is used by students from TexasWestern College, the general public and doctors. The public and students use itmore than the doctors. It is opened from 1 to 5 p.m. Monday thru Friday.Mr. Jack N. Fant, page 4 OpinionNo. NW-1423

“5

* The libraryhas never been closed to the general public since it was originally opened over 10 years ago.

“6

. The librariandoes not hold a degree in library science. The El Paso CountyMedical Society pays her $150.00 monthly. Hours are from 1 to 5 p.m. Monday thru Friday. The librarian takes care of the telephone for the Medical Society,keeps up with themembership and dues. This would require about one hour an afternoon,

“7. The library is located on a corner lot and the grounds are used by the puclicwhen needed.

“8

D Four years ago, all of the outof-datebooks were discarded and they have been replacedwith up-to-date later editions. A few of the old books were kept. At the present time, about 20% of the books are out of date except for historicalpurposes and most of thesehave definitehistoricalvalue. The periodicals are kept up-to-datewith no missing issues. When the periodicalsare bound, if there are anymissing issues, they are replaced tomake the bound volumes complete." 9. You state that the usual library indices and cross referencesare available and that the books are catalogued.
10. You state that the property is "centrallylocated in an ideally accessible location". "11. Several peoplebesides the doctors come in every afternoonbetween 1 and 5 and use the library material. The library is used principallyby students in olurlocal college and high schools. Some other layman use it. The doctors themselves use it least of all. It is very difficultMr. Jack N. Fant, page 5 OpinionNo. WW-1423

to saywhat percentage of the library material has been used by anyone other than doctors within the last year. It would probablybe about 25% (doctors' use) but this is a rough estimate.
"12. The libraryhas been advertised at our local college, TexasWestern College. The Chairman of the Biological SciencesDepartment there has made this known to the students by verbal announcementsand by a notice on the bulletin. The Public Library also sendsmany students to ourmedical library. Only the Public Library is advertised in theYellow Pages of the TelephoneDirectory."

II. OUR OPINIONBASED ON THE FOREGOING FACTS
Our opinion is that neither the realty, permanent improvementsnor personal propertiesunder considerationare exempt from State ad valorem taxesby reason of being a public library. The pertinent constitutionalprovisionwhich authorizes exemption of the kind of propertiesunder consideration is ArticleVIII, Section 2. The relevant portion of this article reads as follows:

II the legislaturemay, by generai iaws, exempt from taxation public property,,used for public purposes;
. . . .Article

7150, subd. 8, V.C.S. effects the permissive exemption authorizedby Art. VIII, Sec. 2 (supra)as to public libraries in the following language:

"The following property shall be exempt from taxation, to-wit:
6.' * Public libraries. -- All public librariesand personal property belonging to the same."Mr. Jack N. Fant, page 6 OpinionNo. WW-1423

Tne constitutionalprovision requires that a public library to be exemptmust be, first, "publicproperty", and second, that the public library propertiesmust be "used for publicpurposes". 1.
We first considerwhether the realty, the permanent improvements thereon and the personal properties comprising the library and its furnishingsare "publicproperty"within themeaning of Ar'ticle VIII, Sec. 2 of the Constitution. "'he early case of Saint Edwards College v. Morris, Tax Collector, 82 Tex. 1, 17 S.W. 512 (1891)considered that portion of Art. VIII, Sec. 2 of the Constitutionwhich we now have under consideration (whichwas in the identical languageas now). With reference to the nature of property as being "publicproperty used for publicpurposes" the Court stated:

"It can not be claimed that the property of appellant ispublic property used for public purposes, for to give it such character it is believed that the ownership shouldbe in the State or some of itsmunicipal subdivisions,and itmay be that its use would have to be not onl? under their controlbut for a purpose for which the State or suchmunicipal subdivisionsare authorized to use propertyheld by them for the benefit of the public." (Underscoringadded).
See also Texas TurnpikeCompany v. Dallas Count& 153 Tex. 474, 271 s.w.2d 400 (1954).
We are aware of the statements of our Suprem? :ourt with reference to this Art.VIII, Sec. 2 of the Constitutionmade in erty, Tax Collectorv. Thompson, 71 Tex. 192 9 S.W. 99 )wherein the Court stated

"That section of t:~ie Constitution seems to apply to property ownedby persons or corporations in private right,but which, from the use to which it is applied, is, in a qualified sense,deemed public property."Mr. Jack N. Fant, page 7 OpinionNo. WW-1423

Later in that same case the Court reitterated this statement in the following language:

8, “Asbefore said, section 2, art. of the constitution,gave to the legislature the power to exempt propertyheld in private ownership, but used for purposeswhich give to it a public character.” This latter quotation from Daughertyv. Thompson is quoted in Lower Colorado River Authorityv. Chemical Bank and Trust Co., 144 Tex. 326, 190 S.W.2d 48 (1945) (atpage 51).
We reconcile these apparently contradictorystatements by our Supreme Court in the followingmanner. The Daugherty case (supra)considered the taxability of school landsbelonging to Frio Countywhich were under a ten-year lease to an individual. The quoted statements from that case were made with reference to ownership of the lands by Frio County. In that respect the lands consideredwere owned by Frio County in its own private right. While these lands were public in that they were ownedby the county, a political subdivisionof the State, they also were private in that theywere bneproperty of Frio

a public corporation. E%'Atl. 72'8(c The case of Coyle v. Gray, 7 Houst. ourt of Errors and Appeals of DelawareL-law co;rt of last resortJ 1884)makes this distinction clearwherein the Court said:

,1

. . .The inhabitants of a city, who are in fact the corporatorsunder a charter creating a municipality, are a portion of that general publicwhich constitute a state. And they are also that particular publicwhich constitute a municipality. Themunicipality may hold property in which all the inhabitants of a state or of a countymay be said to have an interest in some respect,but not as owners or proprietars. And itmay also hold property in which the inhabitants of themunicipality alonemay properlybe said to have an interest. Both classes of property are public, -- the one, as to the people of the whole st,ate or county; the other,more particularly, as to the inhabitantsof the municipality

. It is only in this senseMr. Jack N. Fant, page 8 Opinion No. WW-1423

that the words 'public'and 'private' can with proprietybe applied to such property,when held by a municipality. Although the propertyheld for the municipality is in fact public, as common to all the inhabitants of a city, it neverthelessmay justlybe said to be privateproperty, as being such property as is exempt from being taken or applied to any other public use by the state, or by authority of the state,without compensationbeing made." (at P. 733).
We believe the same interpretationwas meant in Lower Colorado River Authorityv. ChemicalBank and Trust Co., (supra).
Our State Constitutionnowhere provides for the exemption from ad valorem taxes of propertywhich is privately owned although used for public purposes. The Legislature could not by Art. 7150, subd. 8, (supra)convert private property used as a publlc library into public property. In Texas Turnpike Companyv. Dallas County (supra) the Court stated:

If

. . . Public cwnership, for taxexemption purposes,must grow out of the facts; it is a legal status,based on facts, thatmay not be created or conferredby mere legislative, or even contractual,declaration. , . .' (atp. 402). The following quotation from Davis v. City of Atlanta, 206 Ga. 652, 58 S.E.2d 140 (Ga.Sup.1950)very clearly states this principle. "UnderBoard of Trusteesv. City

of Atlanta, 113 Ga. 883, 39 S.E. 394 154 L.R.A. 806J, the fact that privately owned property is devoted exclusively to a public use does not therebymake it public property so as to exempt it frommunicipal ad valorem taxation. Indeed,not even legislative enactment canmake it such nor so exempt it. In that case the court held unconstitutionalan act of the legislaturewhich declared that. . .

Mr. Jack N. Pant, page 9 OpinionNo. WW-1423

armory property shall be public property and exempt frommunicipal and other taxation.
"In that case the court said: 'Itis claimed

. . . the property is used exclusively for public purposes inmaintaining themilitary company known as the Gate City Guard,which is a part of the regular volunteer milltary.forces of the state. That private property is used exclusively for public purposes does not change the nature of the property, or the title thereto, so as to convert it into public property.
. . . Private property cannot be converted into public propertyby the simple declaration of the general assembly; and especially is this true when the purpose of the declaration is to relieve private property from a burden which the constitution says in unmistakable terms shallbe borne by it for the benefit of the public."'
See also Attorney General OpinionNo. O-1621 (1939).
We believe the law Is settled to the effect that real estate and the permanent improvements thereon and personal property therein to which neither the State nor any of its political subdlvisionsnor agenciesnor representativeshave any title,nor right of control under any form of grant vesting In any such public entity a right of control over said property, can be "publicproperty"within themeaning of Art. VIII, Sec. 2 of our State Constitution. propertiesunder consideration, As to the library the publichas only access, and that at the sufferance of the El Paso County Medical Society as its invitees. We have fcundno authority, in Texas or in any other jurisdiction ofthe:UnitedStates,which would authorize property to which the publichas this type of access right only to be qualified as being public property for purposes of being exempt from taxation.

The properties in questionmust be "used for public purposes" as provided in Art. VIII, Sec. 2 of the Constitution (supra).Mr. Jack N. Fant, page 10 OpinionNo. WW-1423

As to whet.her

a particularusage is a public purposewithin contemplationof the above constitutionalprovision must be determined in each l.ncldence uwon the warticular facts. In Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033 (1934)the Court stated:

"In discussingwhat is a public purpose,McQulllin on Municipal Corporations (2dEd.) vol. 6, p. 292, sec. 2532, says: 'Whatis a public purpose cannotbe answeredby any precisedefinition further than to state that if an object is beneficial to the inhabitantsand directly connected with the local government it will be considered a public purpose.'" Again, in the case of A & M Consolidated Independent School Districtv. City of Bryan, 143 Tex. 348 184 S.W.2d 914 with reference to publicly owned propertybeing used for a public purpose, the Court stated:

"Theproperty in question appears to be used for a public purpose. It is used primarily for the comfort and welfare of the people, and all the public has the right to use it under reasonable and uniform regulations." (atp. 916). However, the Courts have also well establishedwhat is not a publicpurpose. The following two authoritiesare typical:
"It Is not all thingswhich answer a publicneed or fill a public want that it is within the authority of the State to furnish for the people's use or support at the public expense." Waples et al v. Marrast, 108 Tex. 5, 184 S.W. 180 (1916).
"It is well settled that there must be a general public right to -- a definite use of the property,as distinguished from a use by a private individual or corporationwhich may prove beneficial or profitable. . *

Mr. Jack N. Fant,, page 11 OpinionNo. W-1423

to some portion (emwhasisadded na,ls, TV.Louisi 71 L 223 5 :930)aiP. 340;. of the public,"

'1. RI ver & Rail Termiana 'Ry.& Nav. C0.9 0. 7 (La.Sup.

The specific limited exemptions stated in Art. 7150V.C.S. make certain the proposition that not the use only of properties which promote the welfare of the public Is a publicpurpose which will exempt those propertles from ad valorem taxes. The following usages of portions of the land and improvementsunder considerationdo not comportwith the use of property for a public library: (1) the two-story combinationgarage and servants quarters, (2) about one-fifth (l/5) of the time of the librarian spent in taking care of the telephone for the Medical Society and keeping up with the Society'smembership and dues, (3) space used for storageby the City Museum and (4)meetings by the El Paso County Medical Society and its Ladies' Auxiliary; Without a doubt; the library facilities furnished arc of benefit to the public; but the law is ~~11 se~ttled that not all benefits to the public are recognized in law as being for public pu.rposes in considering the properties a3 being tax exempt. Our opinion is that the El Paso CountyMedical Societymay not voluntarily and gratuitously ?,rdin it:>own private capacitymake availnblc to the public thebencflt; of it; library and therebyzlnkcthe librc?ry exeinpt

from zcj valorem taxes.

The properties owned by the El Paso County :$edicalSociety furnishedby it voluntarily to the public as a public library,but to which the publichas access only at the sufferance of the Society as its invitees, are not exempt from ad valorem taxes as a public library under Art. 7150, subd. 8, V.C.S. as "publicproperty used for public purposes"within contemplation of Art. VIII, sec. 2 of the Texas Constitution.
Yours very truly,, ,

Mr. Jack N. Fant, page 12 OpinionNo. WW-1423

BY

APPROVED:
OPINION COIXMITTEE Morgan Nesbitt, Chairman
L. P. Lollar Robert A. Rowland
FXVIEWED FOR THE .ATTORNEY GENERAL BY: Leonard Passmore