. . 

OF ?rExAs 

PRICE DANIEL 

ATTORNEY GENERA,. 

Awwrnv 11. TExAe 

October 5, 1949 

Hon. J. E. McDonald, Commissioner 

Department of Agriculture 

Austin, Texas Opinion No. V-922 

Re: The constltut1onal1ty of 

that part of House Bill 

29, Acts 51st Legislature, 

R.S.,1949, which empowers 

the Texas Citrus Commission 

to fix a tax levled on the 

processing and sale of cltrus fruit. 

Dear Mr. McDonald: 

By letter dated July 28th you have requested 

the opinion of this office on the following matter: 

"The 51st Legislature of Texas created 

a governmental agency, to be known as the Texas 

Citrus Commission, under an act known as House 

Bill lo. 29. 

"Under Section 14, the bill levies a tax 

of 3&per l-3/5 bushel unit to be collected 

and used in part for advertlslng purposes. 

%ectlon 17 of said act makes It the duty 

of the Commissioner of Agriculture of the State 

of Texas to collect said tax and remit same to 

the Texas Citrus Commlsslon. 

I, 

. . . 

"In view of the nearness of the citrus 

harvesting season, I respectfully request your 

opinion as to the constltutionallty of that 

part of the act which Imposes a tax on clt:us 

fruit to be used for advertising purposes. 

The Texas Citrus Commission was created and its 

authority was defined by the 51st Legislature, R.S., 1949, 

ch. 93, p. 150. It has as Its motivating function the regulation of the Texas citrus fruit Industry. To finance the 

regulatory measure and to provide funds for the accomp- 
. . 

Hon. J. E. McDonald, page 2 (V-922) 

llslnaent of the authorized powers of the Commission, a 

tax was levied in the Act 'upon all citrus fruit grown 

In the State of Texas and packed or placed In containers 

and marketed, or processed and sold between September 1st 

of each year and August 31st of the following year." 

We set out the portions of the Act which pertain 

to the tax In question, as follows: 

"Sec. 9. The Texas Citrus Commission In 

addition to those elsewhere enumerated, shall 

have the following powers: 

"(1) To establish and maintain executive 

offices at such place within the citrus producing area of the State of Texas as It may 

from time to time select. The location of 

such executive offices may from time to time 

be changed by the Commission. 

"(2) To employ and at Its pleasure dlscharge experts, agents and such other employees, 

persons,flrms and corporations as It may deem 

necessary and to fix their respective duties 

and compensation. Provided however, that all 

compensation proposed to be expended under 

said paragraph (2) shall be first approved by 

the Legislative Audit Committee. 

altez(3) To adopt and from time to time to 

rescind, modify or amend all proper and 

necesiary bylaws, rules, regulations and orders 

for the exercise of Its powers and the performance of Its duties under this Act, and to define more precisely the terms and words used in 

this Act and the appllcablllty thereof to speclflc facts and circumstances and to prevent by 

orders, rules and regulations the evasion of 

the taxes as well as the other acts, rules and 

regulations of the Commission, which such rules, 

regulations and orders as so adopted, resclnded, modified or amended shall have the force 

and effect of law when not Inconsistent with 

existing laws. 

"(4) To act as the general supervisory 

authority over the administration and enforcement of this Act and the provisions there- 
Hon. J. E. McDonald, page 3 (v-922) 

of and to exercise such other powers and to perform such other duties as may be now or hereafter Imposed upon it by law. 

“(5) To purchase all necessary office equlpment, furniture and supplies and to make such 

contracts and Incur such expenses as may be necessary or desirable to properly carry out its 

duties. 

“(6) To conduct directly or through such 

lnstrumentalltles or agencies as It may select, 

publicity and advertising programs and sales 

campaigns designed to Increase the sale and 

consumption of Texas citrus fruit and by-products In an amount not to exceed one-half of 

the revenue of the Commission In any one year; 

to carry on research either directly or through 

such lnstrumentalltles or agencies as it may select, for the purposes of Increasing knowledge 

with respect to Texas citrus fruits and by-products and protecting Texas citrus from pests and 

dleases and of finding new uses for Texas citrus fruit and by-products and of improving the 

quality and yield of such fruit and by-products. 

No advertising or sales promotion campaign shall 

be directed towards promotion of the brands or 

trade names belonging to any particular person, 

firm or corporation, except as hereinafter provided. 

own ,~~;bTol~;~;;, change, modify, register and 

trade marks, trade names, and 

copyrlghts'for use'ln connection with Texas citrus fruits and by-products and to adopt, alter, 

amend, and rescind rules and regulations governing the quality, kind and grade of products using same and conditions of such use and to prohibit the use of such brands, labels, trademarks, trade names and copyrights In connection 

with products which do not comply with such rules 

and regulations. All such brands, labels, trademarks, trade names and copyrights shall be open 

to use by all producers of Texas citrus fruit and 

by-products who comply with the rules and regulations promulgated by the Commission with respect 

thereto. 

“(8) To borrow money for the purpose of carrying on the functions for which the Commission 
Hon. J. E. McDonald, page 4 (V-922) 

was created, but no loan shall be for a greater amount than the reasonably anticipated revenues of the Commission for the zurrent crop 

year In which such loan Is made. 

II 

. . . 

"Sec. 14. There Is hereby levied and assessed and there shall be collected, at the 

times and In mani,er and from the persons, firms, 

associations and corporations herein provided, 

a tax In such amount r?t to exceed Three Cents 

(3#) per standard packed box or bag of one and 

three-fifths (1 3/5) bushels or equivalent, as 

the Texas Citrus Commission may annually fix 

and certify to the Commissioner of Agriculture 

of the State of Texas on or prior to September 

1st of each year. 

"With the exceptions herein provided, said 

tax at said rate Is hereby levied and assessed 

and shall be collected as herein provided, upon 

all citrus fruit grown in the State of Texas and 

packed or placed in containers and marketed, or 

processed and sold between September 1 of each 

year and August )lst of the following year. If 

any citrus fruit shall be placed In containers 

or packed or processed In the State of Texas between September 1st of one year and August 3lst 

of the following year but not sold until after 

the next September lst, upon such sale it shall 

be taxed at the rate fixed by the Commission on 

or before the September 1st Immediately preceding such sale. 

"For the 

twenty-four (2 t 

urpose of.computing such tax, 

) units of No. 2 cans of processed citrus fruit shall be equivalent to a standard packed box or bag of one and three-fifths 

(1 3/5) bushels of fresh fruit and shall be taxed In the same amount as such standard packed 

box; twelve (12) units of No. 3 cans of processed citrus fruit shall be taxed at a rate one and 

twenty-six one hundredths (1.26) times the amount 

of tax for a standard packed box: six (6) units 

of No. 10 cans of processed citrus l‘ruit shall be 

taxed in the amount one and thirty-three one hundredths (1.33) times the tax for a standard packed box; seventy-two (72) units of SIX (6) ounce 
Hon. J. E. McDonald, page 5 (V-922) 

cans of processed citrus fruit shall be equlvalent to a standard packed box of fresh fruit 

and shall be taxed In the same amount; each 

one and three-fifths (1 3/5) bushel Bruce or 

wire-bound type box of fresh fruit shall be 

equivalent to a standard packed box of fresh 

fruit and shall be taxed In the same amount; 

each box, basket or bag containing approxlmately four-fifths (4/5) bushel of fresh fruit 

shall be taxed In an amount equal to one-half 

(l/2) the tax for a standard packed box; each 

box, basket or bag containing approximately 

two-fifths (2/5) bushel of fresh fruit shall 

be taxed in an amount equal to one-fourth 

(l/4) the tax for a standard packed box; each 

basket or bag containing approximately one (1) 

bushel of fresh fruit shall be taxed In an amount equal to sixty-two and one-half per cent 

(6293) of the tax on a standard packed box: 

each box, basket or bag containing one-half 

(*) bushel of fresh fruit shall be taxed in an 

amount equal to thirty-one and twenty-five one 

hundredths per cent (31.25%) of the tax on a 

standard packed box; eight (8) bags containing 

approximately one-fifth (l/5) bushel each of 

fresh fruit shall be equivalent to a standard 

packed box and shall be taxed in the same amount; ten (10) eight (8) pound bags of fresh 

fruit shall be equivalent to a standard packed 

box of fresh fruit and shall be taxed In the 

same amount; sixteen (16) five (5) pound bags 

of fresh fruit shall be equivalent to a standard packed box and shall he taxed In the same 

amount; four and one-half (4$) gallons of single 

strength citrus fruit juice or other processed 

citrus fruit shall be equivalent to a standard 

packed box of fresh fruit and shall be taxed in 

the same amount; eighty (80) pounds of fresh 

fruit In bulk shall be the equivalent of a standard packed box and shall be taxed In the same amount as such standard packed box. 

“For the purpose of computing such tax on 

other containers of fresh and processed Texas 

citrus fruit, and enforcing the collection of 

the taxes herein levied, the Texas Citrus Commission is authorized, empowered and directed 

to adopt rules and regulations to prevent 
Hon. J. E. McDonald, page 6 (‘J-922) 

evasion and ensure collection and defining what 

is the equivalent of a standard packed box of 

fresh fruit, and the proportion of the tax as 

levied per standard packed box which shall be 

paid on such other forms and containers of 

fresh and processed Texas citrus fruit. 

“It Is provided however that the tax levied 

from year to year pursuant to the terms and provisions hereof shall not be due and payable by 

any natural person as to Texas citrus fruit grown 

on land owned by such person and packed and sold 

by such person as fresh fruit or as to such fruit 

so grown on such land and processed and sold by 

such person. Each such natural person claiming 

an exemption under the provisions hereof, shall, 

before becoming entitled thereto, file an appllcatlon for such exemption and receive an exemption 

certificate from Texas Citrus Commission at the 

time and In the manner hereinafter provided. 

“Sec. 15. The taxes authorized by the precedln Section of this Act shall be due and payable 7 with the exceptions therein set out) by 

the persons, firms or corporations packing or 

placing same in containers and marketing such 

fresh citrus fruit or processing and selling ‘~, 

such processed citrus fruit and citrus fruit by-, 

products, to the Texas Citrus Commission at Its 

executive offices, on the 15th day of the calendar 

month following the packing or placing In contalners and marketing of the fresh citrus fruit Or 

the processing and sale of the proceased citrus 

fruit and by-products, to which such taxes are 

applicable. Same shall bear Inter&t at the rate 

of ten perzentum (10%) per annum from and after 

the due date thereof until paid, and ohs11 be personal obligations and claims against each person; 

firm and corporation who packs or places In containers and markets or processes and sells or PUPchases all or any part of such fresh citrus fruit 

aftep It Is packed for market or such processed 

fruit and by-products after same are processed. 

Ali persons, firms and corporations who shall 

sell or purchase any fresh or processed Citrus 

fruit and by-products upon which such tax is or _~ 

may becane due, shall keep such records and accounts and make such periodic reports of dealings 

In fresh and processed citrus fruit and by-products 
Hon. J. E. McDonald, page 7 (V-922) 

as the Texas Citrus Commission may from time to 

time prescribe. 

11 

. . . 

'Sec. l?- The Commissioner of Agriculture 

of the State of Texas, and his assistants, employees and agents are hereby authorized, empowered and directed at the request of the Texas 

Citrus Commission and without additional compensation to collect the taxes Imposed by this Act 

and to remit same to said Commission as herein 

provided and to otherwise assist the Commission 

In the enforcement of this Act and rules and regulations promulgated hereunder. They shall make 

from time to time such reports of their collections 

and remittances and other activities in the enforcement hereof as may be required by said Texas 

Citrus Commlsslon. Said Texas Citrus Commission 

may also employ additional agents and representatives for the collection of said taxes, and to 

assist In the enforcement hereof. 

"The Texas Citrus Commission may require 

any or all persons who handle money or are responsible for collecting the taxes herein levied to 

give bond for the faithful and honest performance 

of their duties In such form and amount as may be 

prescribed by the Commission and the premiums on 

such bonds may be paid by the person giving same 

or from funds of the Texas Citrus Commission, as 

It may prescribe. 

'Sec. 18. There Is hereby created In the 

Treasury of the State of Texas three special fwds 

which shall be continuing funds, to be known as 

follows: 

" 1 . Texas Citrus Commission Fund. 

" [I 2 . Agricultural and Mechanical College 

of Texas-Weslaco Experiment Station No. 15 Cltrus vd. 

Cltrus(&d? 

exas College of Arts and Industries 

"All moneys collected from the taxes levied 

from time to time pursuant to the provisions of 

this Act shall be turned over to the Texas CitPuS 
c 

Hon. J. E. McDonald, page 8, (V-922) 

Commission, Its officers and agents, and by 

said Commission forwarded to the Comptroller to 

be deposited by him with the State Treasurer of 

the State of Texas, three-fourths (3/h) thereof 

In said Texas Citrus Commission Fund, one-eighth 

(l/8) thereof In said Agricultural and Mechanlcal College of Texas-Weslaco Experiment Station 

No. 15 Citrus Fund and one-eighth thereof In 

said Texas College of Arts and Industries Cltrus Fund and the proceeds of such taxes In said 

funds shall be appropriated by the Legislature 

of the State of Texas for the purposes herein 

named and for no other purpose. 

"The entire amount of said Texas Citrus Commission Fund for the biennium ending August 31, 

1951, Is hereby appropriated to said Texas Cltrus Commission, to be used by It for the purposes specified In this Act Including the enforcement of this Act and cost of collecting 

said taxes. The entire amount of said Agrlcultural and Mechanical College of Texas-Weslaco 

Experiment Station No. 15 Citrus Fund and of 

said Texas College of Arts and Industries Cltrus Fund for the biennium ending August 31, 1951, 

are hereby appropriated to the Agricultural and 

Mechanical College of Texas, Texas Agricultural 

Experiment Station System-Weslaco Experiment 

Station No. 15 and Texas College of Arts and Industries, each respectively to be used by said 

respective institutions In education and research 

for the purpose of Increasing knowledge with respect to Texas citrus fruits and by-products, 

and protecting Texas citrus fruits from pests 

and diseases and of finding new uses for Texas 

citrus fruits and by-products and of improving 

the quality and yield of such fruit and by-products. 

'varrants shall be drawn by ,the Comptroller 

of Public Accounts of the State of Texas, against 

said respective funds as provided-by law. 

11 

. . . 

'Sec. 20. This Act Is passed for the purpdse 

of preventing economic waste of food and loss of 

property and natural resources of this State and 
Hon. J. E. McDonald, page 9 (V-922) 

to encourage and foster the development of a 

major Industry, the Texas citrus Industry by 

fostering research as to new uses; by preventing destruction thereof by pests and diseases 

and by lmprovlng the quality of and stlmulatlng demand for, such Texas citrus fruit and 

by-products produced therefrom. Lack of such 

fostering care for such Industry has in the 

past and will In the future (unless prevented) 

result In unnecessary and avoidable waste of 

an important resource of this State. Such loss 

and waste will imperil the ability of producers 

of Texas citrus fruit to contribute In appropriate amounts to the support of ordinary governmental and educational functions, and lncrease the tax burdens of other citizens for 

the same purposes. Hence this Act Is passed 

to further the public welfare and general prosperity of the State of Texas." 

We shall, In the course of this opinion, resolve 

the constitutionality of the tax Imposed by the Act with 

respect to whether the tax Is for a "public purpose' wlthIn the constitutional requirement of Article VIII, Section 

3, of the Texas Constltutlon,and as to whether the delegation of authority to the Texas Citrus Commission In connection with determining the amount of the tax constitutes 

an unconstitutional delegatlon of legislative authority 

violative of Article II, Section I, and Article III, Section 48, of the Texas Constitution. 

(1) Is the tax for a "public purpose" within the 

constitutional requirement of Article VIII, 3 ectlon 5 of 

T the exas 

It Is provided in Article VIII, Section 3 of the 

Texas Constitution that: 

'Taxes shall be levied and COllQCtQd by 

general laws and for public purposes only." 

The functions of the Texas Citrus Commlsslon are 

enumerated in Section 9 of the Act, set out heretofore. In 

addition to the usual administrative functions of operating 

physical facilities and employing personnel as well as of 

furthering Its regulatory powers, the Commission has speclflc authority to conduct advertising campaigns to foster 

and promote the citrus Industry. To this particular authority the following discussion will be principally devot- 
Hon. J. E. McDonald, page 10 (V-922) 

ed, as Its character as a public purpose Is the most controversial of the enumerated powers in so far as the tax 

revenue's expenditure thereon Is concerned. 

purpose" 

The requirement that taxation be for a "public 

Is fundamental to the jurisprudence of this country, and Its necessity has been Incorporated In the constltutlons of most of the States of the union. It has, therefore, occasioned much judicial lnterpretatl?n to determine 

what Is within the field of authorized taxation. The volume 

of judicial constructions of what constitutes a "public purpose* within the inhibitory provisions has proven enllghtenlng and we shall, through the course of this opinion, set 

out those expressions which we feel most nearly embody a 

recognizable rule. 

The determlnatlon of whether a given object of 

taxation Is for a *public purpose't is governed, In the 

light of existing authorities, by custom and usage to a 

great extent. No precise holding in Texas has been founds 

holding that a tax on citrus fruit for the purposes enumerated In the Act in question Is not for a public purpose. 

General tests, however, seem to be well established. 

It Is said in 1 Cooley on Constitutional Limltations (8th ed.,1927) 264, that: 

"The Legislature is to make laws for the 

public good, and not for the benefit of lndlvlduals. It has con\trol of the public moneys and 

should provide for disbursing them only for public purposes. Taxes should only be levied for 

those purposes which properly constitute a public burden. But what Is for the public good, 

and what are public purposes, and what does properly cotistltute a public burden, are questions 

which the legislature must decide upon Its own 

judgment, and In respect to which It Is vested 

with a large discretion which cannot be controlled by the courts, except, perhaps, where Its action Is clearly evasive, and where, under pretense of a lawful authority, it has assumed to 

exercise one that is unlawful." 

The United States Supreme Court has spoken on the 

problem often and foPcefully. In Savings and &an Assoclatlon v. Topeka, 22 U.S. 455, 20 Wall. 655, It was said: 
Hon. J. E. McDonald, page 11 (V-922) 

"To lay, with one hand, the power of the 

government on the property of the citizen, and 

with the other to bestow It upon favored lndlviduals to aid private enterprises and build 

up private fortunes, Is none the less a robbery 

because It Is done under the forms of law and 

Is called taxation. This Is not legislation. 

It is a decree under legislative forms. 

I, 

. . . 

"We have established, we think, beyond 

cavil, that there can be no lawful tax which 

Is not laid for a public purpose. It may not 

be easy to draw the line In all cases so as 

to decide what is a public purpose In this 

sense and what Is not. 

"It Is undoubtedly the duty of the Legislature which Imposes or authorizes munlclpallties to Impose a tax, to see that It Is not to 

be used for purposes of private Interest lnstead of a public use, and the courts can only 

be justified In Interposing when a violation of 

this principle Is clear and the reason for lnterference cogent. And in deciding whether, In 

the given case, the object for which the taxes 

are assessed falls upon the one side or the 

other of this line, they must be governed malnly by the course and usage of the government, 

the objects for which taxes have been customarily and by long course of legislation levied, 

what objects or purposes have been considered 

necessary to the support and for the proper 

use of the government, whether State or munlclpal. Whatever lawfully pertains to this and is 

sanctioned by time and the acquiescence of the 

people may well be held to belong to the public 

use, and proper for the maintenance of good 

government, though this may not,,be the only 

criterion of rightful taxation. 

In Waples v. Marrast, 108 Tex. 5, 184 S.W.180 

(1916), the question of whether the requirement of the expenditure of county funds for the holding of Darts DrimarY 

elections was for a"publlc purpose" was Involved. It was 

there said by Chief-Justice Phillips that: 

"Taxes are burdens imposed for the support 

of the government. They are laid as a means of 
Hon. J. E. McDonald, page 12 (V-922) 

providing public revenues for public purposes. 

The sovereign power of the State may be exercised In their levy and collection only upon 

the condition that they shall be devoted to 

such purposes; and no lawful tax can be laid 

for a different purpose. Whenever they are Imposed for private purposes, as was said In 

Brodhead v. Milwaukee, 19 Wls. 670, 88 Am. Dec. 

711, it ceases to be taxation and becomes plunder. 

"It Is not easy to state In exact terms 

what is a 'public purpose' In the sense in 

which t&t term Is employed as a llmltatlon 

upon the State's power of taxation. The framers of the Constitution were doubtless sensible 

of this difficulty, for they did not attempt to 

define It. Many objects may be public In the 

general sense that their attainment will confer a public benefit or promote the public convenience, but not be public In the sense that 

the taxing power of the State may be used to accomplish them. The powers of the State as a 

sovereignty exist only for government purposes. 

They may be freely exerted In the discharge of 

all the governmental functions of the State; but 

cannot be applied to uses, though public ln aim 

and result, which are not governmental In their 

nature. As the means provided for the support of 

the government in Its administrative duties and 

existing alone for that end, the taxing power 

may be employed for no purpose save that which 

In a true and just sense Is related to the performance by the State of Its governmental office. 

The appropriation of the public revenue is a 

legislative power, and the Legislature must necessarily be allowed a large discretion In determining to what uses public moneys may be put. 

Subject to the constitutional llmltatlon that 

the public revenue shall be applied to only public purposes, to the prudent husbandry of the 

Legislature as well as Its provident foresight 

has been committed the public trust of making 

such use of It as will afford the economical administration of the government which both the 

spirit and the letter of the Constitution enjoin. The term 'public purpose' as used In this 

relation Is not, therefore, to be construed narrowly, so as to deny authority to the Legislature 
Hon. J. E. McDonald, page 13 (v-922) 

to make such provision for the admlnlstratlon 

and support of the government In Its several 

branches and subdivisions as will faithfully 

subserve the present and future Interests of 

the people. The llmltatlon imposed by the 

Constitution upon the power Is, however, lmperatlve. And It Is essentially true that It does 

not permit taxation for all purposes which In a 

broad and general sense may be regarded as public, but expressly confines Its exercises to only those public purposes with which the State, 

as a government, Invested with high and sovereign powers, but only as a grant from the people 

and therefore to be solely used for the common 

benefit of all of them, and not as a paternal 

institution, may justly concern Itself, and to 

which, for that reason, the public revenues may 

be rightfully devoted. 

"As to what Is a public purpose within the 

meaning of Section 3, Article 8 of the Constltutlon, no better test can be presented than the 

Inquiry: Is the thing to be furthered by the 

appropriation of the public revenue somethlnq 

which it Is the duty of the State, as a government to provide? Loan Association v. Topeka, ??O 

16 L.Ed. 455. People v.Town of Salem, 

2801M;ch?545~~ 4‘Am. Rep: 400. Those things which 

It Is the duty of the State to provide for the 

people, it Is equally the right of the State, by 

means of the public revenue, to maintain. Wlthin this category fall the general lnstrumentalltles of the government, the public schools, 

and other Institutions of like nature. But 

the State is wholly without any power to levy 

and appropriate taxes for the support of those 

things which, either by common usage or because 

they are In no proper sense the Instruments of 

government, it is the duty of the people to provide for themselves. It Is not all things which 

answer a public need 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. Manufacturing industries, railroads, 

public enterprises of many kinds, private schools 

and private charitable Institutions all afford a 

service to the public, but the State Is without 

any power to maintain them. Religon Is generally 
Hon. J. E. McDonald, page 14 (V-922) 

esteemed a helpful influence for public morality. But the Constitution expressly declares 

that no public money shall be sranted In aid 

of any religious organization. 

supplied throughout this opinion) 

(Emphasis 

In Neal v. Boou-Scott, 247 S.W. 689 (Tex.Clv.App. 

1923), the court was passing on a tick eradication law as 

being in contravention of the “public purpose” requirement 

of Article VIII, Section 3, wherein the exuense of enforcement was required by the law to be paid out of county funds. 

The Court held: 

“The question as to whether an act of the 

Legislature of this state will serve a public 

use or purpose is, in the first instance, a 

question for the determination of the Leglslature, and that determination or decision cannot be reviewed and the contrary determined by 

the judiciary except In instances where the 

legislative determination of the question Is 

palpably and manifestly arbitrary and lncorrect.” 

The Texas courts have held that the following 

functions were within the “public purpose” requirement: 

the levy of taxes by a municipality for a Board of City 

Develooment authorized to soend Its funds to advertise 

the advantages of the city,- Ilavis v. City of Taylor, 

123 Tex. 39, 67 S.W. 2d 1033:(1934); the levy of taxes 

for the construction of highways, Tom Green County v. 

Moody, 116 Tex. 299, 289 S.W. 381 11926) ; the levy of 

taxes to establish and maintain a munlciual band. 

Gr 118 Text 207 lj S.W. 

% 353 (19:6); the levy of taxes for the pay&t of 

bounties for the destruction of wolves, Weaver v. 

Scurry County 28 S.W. 836 (Tex. Clv. App. 1894) An 

annotation of’value Is to be found In 112 A.L.R.‘571. 

We attach weiaht to the lucid exoression of the 

considerations i&lved in determining what Is a 

“public purpose” as found in City of Glendale v. White, 

67 Ariz. 231, 194 P. 26 435 (194t)), as follows: 

"'What Is, and what is not, a public 

purpose? It Is fundamental that taxes may 

not be levied for private purposes. * * l 
Hon. J. E. McDonald, page 15 (v-922) 

"'"Public purpose" Is a phrase perhaps 

incapable of definition, and better elucidated by examples. 

***** 

"'In considering what Is properly a public purpose, we should not be controlled to 

too great an extent by decisions of courts 

in climates far distant from ours. Further, 

we should not be to too great an extent controlled by decisions which come from a remote 

time, and therefore may be out of tune with 

modern conditions. The question of what is a 

public purpose Is a changing question, changing to suit Industrial Inventions and developments and to meet new social conditions. 

law is not a fixed and rigid system, but develops, a living thing, as the Industrial and 

social elements which form it make their impelling growth.'" 

There being no Texas authority precisely in 

point, we deem it necessary to examine authorities in 

those jurisdictions which have been oonfronted with 

the levy of a tax for a purpose similar to that for the 

Texas citrus Industry here Involved. Numerous other 

States having various differing agricultural pursuits 

for substantial parts of their economies have enacted 

legislation regulating and fostering a particular agricultural pursuit similar to the Texas Act we are here 

considering Involving our citrus Industry. 

In Floyd Fruit Company v. Florida Citrus Comy;;;;';~, 128 Fla. 565, 175 So. 248, 112 A.L.R. 562 

the Supreme Court of Florida sustained an act 

of the legislature of that state levying a tax on each 

standard-packed box of oranges, grapefruit or tangerines 

grown in the state to be collected and used in advertlsing those fruits. The court held that such a tax is an 

"excise tax" and not a property tax and did not violate 

constitutional rules of equality, uniformity or due process, as provided In the Constitutions of Florida or of 

the United States; that such an excise tax was not unreasonable, unjustly discriminatory, or arbitrary: that 

the tax was levied on the privilege of turning said 

fruits Into the channels of trade, and was a valid tax 
Hon. J. E. McDonald, page 16 (V-922) 

regardlesa of whether they were later to be shipped in 

interstate or foreign commerce; and that the tax so lmposed vas for the purpose of advertising such citrus 

fruits and vas for a public purpose and valid because 

the promotion of the citrus Industry Ln Florida was a 

matter of public concern. 

In Sllgh v. Kirkwood, 237 U.S. 52 (1915), the 

Suoreme Court of th6 United States took judicial notice 

of-the fact that the raising of citrus f&Its Is one of 

the greatest industries of the State of Florida, and held 

that “It was competent for the legislature to find that 

it was essential for the success of that industry that 

its reputation be preserved In other states wherein 

such fruits find their most extensive market.” 

In Maxcg, Inc. v. Mayo, 103 Fla. 552, $5~5~0. 

121 (1931), the Supreme Court of Florida said: 

court takes judicial notice of the fact that the citrus 

Industry of Florida Is one of its greatest assets. Its 

promotion and protection is of the greatest value to 

the state, and Its advancement redtunds greatly to the 

general value of the commonwealth. 

In State ex rel. Graham v. Enklnq, 59 Idaho 

321. 82 P. 26 649 [X938), the Supreme Court of Idaho 

had-under consideratlonVa statute of that state levying a tax of one cent on each loo-pound unit of apples, 

prunes, potatoes and onions shipped within the state, 

for the purpose of providing a fund for advertising 

such fruits and vegetables. It was there held against 

the several contentions of InvalIdIty that It vas a tax 

on the privilege of turning such fruits and vegetables 

Into the primary channels of trade and vas not a property tax, and did not, therefore, violate constitutional rules of equality, uniformity or due process; that 

the tax was not a burden on interstate commerce; that 

the tax having been levied for the purpose of provldlng a fund for advertising such fruits and vegetables 

was valid and for a public purpose In that the protection and promotion of the apple, prune, potato, and 

onion Industries was as much a matter of public concern to Idaho as the citrus industry was to Florida, 

citing Floyd Fruit Company v. Florida Citrus Commls- 

*, supra . 

In Miller v. Michigan State Apple Commission, 

296 Mich. 248, 296 N.W. 245 (1941), the Supreme Court 
Hon. J. E. McDonald, page 17 (V-922) 

of Michigan had before it a statute of that state known 

as the "Baldwin Apple Act," which levied 'an assessment 

of 1 cent per bushel, or 2 cents per 100 pounds of all 

apples grown and produced in Michigan, payable by the 

grower or grower's agent when shipped," and providing 

that "all moneys levied and collected under this Act 

shall be expended exclusively to advertise apples." 

The Act was sustained as a valid and constitutional exercise of the legislative power, as not being discrimlnatory, not a tax on property but on the privilege of 

putting apples In the marts of trade, and as being a 

tax for a public purpose. 

In Louisiana State Deoartment of Agriculture 

v. Sibllle, 207 La. 877, 22 So. 2d 202 (1945) the Supreme 

Court of Louisiana was concerned with an act hf the lealslature of that state creating the Louisiana Sweet POtato Advertising Agency, imposing a tax to be collected 

by the Louisiana State Department of Agriculture and 

Immigration, on all sweet potatoes shipped in Louisiana. 

The Agency was charged with the duty of planning and 

conducting an advertising campaign for sweet potatoes 

out of the funds realized from such tax. The act was 

attacked under the Louisiana Constitution as not being 

levied for a public purpose. It was there held that the 

tax was 'for a 'public purpose' since it redounds to the 

public welfare by Rromoting growth of an important agrlcultural Industry. 

Because of the slmilarlty of the regulations 

and of the constitutional consideration, we feel constrained to set out an extensive portion of the language 

used ln the case, as follows: 

"According to the evidence In the record, 

sweet potatoes, from the standpoint of acreage 

and value of production, constitutes the 

fourth largest, and one of the major, commercial crops of Louisiana, ranking only after 

sugar cane, rice and cotton. Corn Is excepted from that classification since most of It 

is used on the farms where produced In feeding 

hogs. cattle and other animals. It Is true 

that on the basis of percentage of acreage 

planted the sweet potato crop falls conslderably behind the other three major commercial 

crops; nevertheless it is of great Importance 

in the agricultural economy of this state as 
Hon. J. E. McDonald, page 18 (V-922) 

is attested by the fact that during a ten-year 

period It had an average annual planting of 

104,000 acres with an average annual yield of 

7,185,000 bushels. Furthermore, in this connection, consideration is to be given to the 

agricultural trend in the southern section of 

our nation which is to favor diversified farming, thereby avoiding a concentration on one 

crop and preventing serious loss to the farmer 

In particular and the entire tltlzenry generally when the one crop falls. 

With particular respect to the purpose of the 

act devoted to advertising sweet potatoes, the court 

noted: 

“The proceeds of the sweet potato tax 

are not to be paid to the growers of that commodity or to any other Individuals or groups 

that deal with it commercially; they are devoted exclusively to advertising the sweet potatoes, thus promoting the growth of an Important 

and major Industry. By that advertising, especially in states where very little is known 

of the value and usefulness of the sweet potato, 

there will result an increased consumption. This, 

In turn, will compel larger production and more 

sales throughout this state, as a consequence of 

which a greater prosperity will be realized not 

only by those directly Interested but also by 

our entire citizenry. Therefore, since It redounds to the ptbllc welfare, the tax Is for a 

public purpose. 

The foregoing cited cases are indicative of the 

present judicial trend to uphold the type of tax imposed 

by the Texas Act In question as against constitutional 

objectlogs, particularly as to Its being for a “public 

purpose. The authorities are not without conflict, and 

we set out hereafter two comparatively recent cases to 

the contrary. 

In Stuttgart Rice Mill v. Crandall, 203 Ark. 

281, 157 S.W.2d 205 (1941), the Supreme Court of Arkansas considered an act passed in that State called 

the “Rice .Development Commission Law,” which levied a 

tax on rice milled within the state for the purpose of 

financing an advertising campaign to promote rice consumptlon. That act was passed contingent upon the 
. . 

Hon. J. E. McDonaid, page 19 (V-922) 

adoption of similar acts In Texas and Louisiana, which 

were in fact adopted in those states, the Texas Act being Acts 47th Leg., 1941, ch. 434, p. 695. It was held 

In the Instant case that the Arkansas "Rice Development 

commlsslon Law" was unconstitutional under the Arkansas Constitution as not being for a public purpose. The 

basis of that holding is found In the following language: 

"Broad use may be made of the state's 

police power; and If the treatment of rice by 

grower, miller, seller, or others dealing 

with it creates a hazard against which there 

should be protection, then,admlttedly, any 

agency through which It passes may be subjected to regulation and a tax laid for the reasonable cost. But like corn, wheat, and all agricultural commodities of common use, rice Is 

extremely wholesome. It contains no quality 

or element requiring that strict supervision 

which must be applied to products inherently 

harmful. 

"The latest federal census of agriculture 

for Arkansas lists 1,428 rice farms, embracing 

153,095 acres. The total of all farms in the 

state Is 216,671, the acreage being 6,609,833. 

In point of numbers, rice farms account for 

.0066$ of the total, and in acreage .O23$. 

"Can it be said that the Interests of so 

small a group (although such farmers are among 

the more aggressive, progesslve, and substantial of the state) are such as to call for 

protective Intervention by the state's taxing 

powers on the theory that the common welfare 

is Involved? That which is termed the logic 

of this contention Is shredded by the facts." 

In Llnaamfelter v. Brown, W. Va. 

52 S.E.2d 687 (1949), the Supreme Court of West Virginia 

held unconstitutional an act of the legislature of that 

state creating the West Virginia State Apple Commission 

and levying a tax on commercial apples grown In West 

Virginia and "moved into the channels of commerce' to 

conduct advertising campaigns to foster the apple lndustry, such tax being held not to be for a public purpose. 

That court cited the Florida Citrus Commission Case, the 

Michigan Apple Commission Case, the Idaho fruit and vegetable case, and the Louisiana Sweet Potato Commission 
. . 

Hon. J. E. McDonald, page 20 (V-922) 

Case, but distinguished the West Virginia situation from 

those cases, as follows: 

“We are not persuaded that the reasoning 

of the cases of C. V. Floyd Fruit Co. v. 

Florida Citrus Commission, .supra; Michigan 

Sugar Co. v. Dlx. supra; State v. Enklng, supra, and Louisiana State D&partment of Agrlculture v. Slbille, supra should be applied in 

this case. The principal reason for this conclusion Is that the growing and moving of commercial apples in the State of West Virginia Is 

not an enterprise or undertaking of such size 

as to Impress It with a public interest. True, 

the growing of apples and the shipping of them 

Into ‘channels of commerce’ Is an important 

undertaking to the persons engaged in that business. Furthermore, it may be said that the 

undertaking or enterprise Is Important to the 

parts of the State where a considerable portion of the land Is devoted to the growing of 

apples. But when appraised from the standpoint of the entire State the monetary returns 

from such business are, more or less, insignificant and are not sufficient to characterize 

that business as one of the principal commercial or agricultural enterprises of the State 

of West Virginia.” 

The obvious conclusion is that the determining 

factor in the case of an agricultural Industry Is the 

relative contribution to the agricultural economy of the 

taxing state made by the taxed agricultural industry. 

The latest Texas Almanac, being that for the 

years 1947-1948, reveals pertinent facts concerning the 

Texas citrus lndus try. Texas grapefruit production of 

24,000,OOO boxes In 1945 placed It second only to Florida In such production. Average annual production from 

1934 to 1943 has been over 12 000,000 boxes. Value of 

the 1946 grapefruit crop was 8 21,675,000, nearly half 

of all fruit and nut crops In the State. Texas ranked 

seventh In 1946 among the thirteen orange-producing 

states, the crop of that pear being 5,500,OOO boxes valued at $9,625,000. Through June, 1946, 36,513 carlots 

of citrus moved out of the Lower Rio Grande Valle 

Texas Extension Service estimated that late In 19 r 6 there The 

vere 10,000,000 citrus trees in the Lower Rio Grand8 

Valley. In the last ten years, utilization of citrus 

fruit has Increased 350 per cent due primarily to processing of citrus. Boxes of graperrult processed for juice 

Increased from 20,000 In 1929 to 10,559,OOO In 1945. According to Information released by the United States Department of Agriculture, the value of citrus production 

in Texas in 1945 was $41.664. OOO. while the total value 
Hon. J. E. McDonald, page 21 (V-922) 

of all field crops, fruits, nuts and truck crops produced In the State that year amounted to $745,290,000, which 

would make the citrus production 5.59$ of the total crop 

production indicated. In 1947, the latest year for which 

conclusive figures as to production are available, cltrus production totalled $18,041,000 as compared with the 

total value of all field crops, fruits, nuts, and truck 

crops amounting to $1,452,300,000, Indicating a percentage 

of 1.24% allocable to citrus production. 

It is pertinent also to recall the davastatlng 

winter freeze In the early part of 1949 which ravaged 

the citrus trees so tragically, rendering the industry 

peculiarly In need of assistance to foster Its return 

to Its previously held position in the agricultural economy of this State. 

A further consideration is found In the fact 

that the legislative purpose in enacting the Texas citrus 

Commission Act, the statute we have here In question, Is 

found In Section 20 of the Act, which reads: 

"Sec.20. This Act Is passed for the purpose of preventing economic waste of food and 

loss of property and natural resources of this 

State and to encourage and foster the development of a major Industry, the Texas citrus lndustry by fostering research as to new uses; 

by preventing destruction thereof by pests and 

diseases and by Improving the quality of and 

stimulating demand for, such Texas citrus fruit 

and by-products produced therefrom. Lack of 

such fostering care for such industry has in 

the past and will in the future (unless prevented) result in unnecessary and avoidable waste 

of an Important resource of this State. Such 

loss and waste will Imperil the ability of producers of Texas citrus fruit to contribute in 

appropriate amounts to the support of ordinary 

governmental and educational functions, and increase the tax burdens of other citizens for 

the same purpose. Hence this Act Is passed to 

further the public welfare an9 general prosperity of the State of Texas. 

Pert~inent to the effect to be given the statement of the legislative purpose expressed In the Act, 

with reference to whether the tax be for a public pur- 
., . 

Hon. J. E. McDonald, page 22 (V-922) 

pose, we cite the following from Louisiana State Deuartment of Agriculture v. Slbille, supra: 

"In enacting the statute In question the 

Legislature, In Section 1 thereof, declared 

that 'the production of sweet potatoes Is one 

of the important agricultural industries of 

the State of Louisiana; that this act Is passed to conserve and promote the prosperity and 

welfare of the State of Louisiana and of the 

sweet potato industry of the state and for 

fostering and promoting better methods of 

merchandising and advertising the sweet potatoes produced In this state. The purpose 

of this act Is to expand the market and increase consumption of sweet potatoes by acquainting the general public with the health 

giving qualities and the food value of the 

sweet potatoes grown In the State of Lo*lslana, 

thereby 

people." 

promoting the general welfare of our 

"The declaration that the act was passed 

to promote the prosperity and welfare of the 

State of Louisiana and of its people is an expressed legislative recognition that the tax 

is Imposed for a public benefit. To be sure 

that recomltion is not conclusive: It could 

not make the tax one for public purpose if in 

fact It were folr a private purpose. Since, 

however, the members of the Legislature are 

the direct representatives of all of the 

p ple of the State, their declaration cer- 

&ly furnishes the presumption that the public generally Is to be benefited by the leve." 

Upon a careful consideration of all of the authorities and of the circumstances surrounding the citrus Industry In Texas, we are of the opinion that the collection 

of the tax Imposed for the purposes therein enumerated in 

Acts of 51st Legislature, 1949, ch.93,p.150, creating the 

Texas Citrus Colmnisslon, would not be violative of Article 

VIII, Section 3, of the Texas Constitution requiring that 

taxes be levied and collected for public purposes only. 

It is necessary to note In this connection that 

in a previous opinion No. O-3364, dated April 17, 1941 

It, was held bx this office that a 

vertising Iav , Introduced In the t 

roposed "Citrus Ad7th Legislature, was 

unconstitutional as not being for a public purpose wlth- 
Hon. J. E. McDonald, page 23 (V-922) 

In the requirement of the Texas Constitution, citing 

previous opinion No. 0-3106 which held a proposed Rice 

Development Commission Bill, of the same Legislature, 

to be unconstitutional for the same reason. The rice 

opinion, No. 0-3106, is distinguishable In that it 

was for another agricultural Industry and also In that 

Its legislative purpose was not stated in the bill as 

being for the general welfare of the people of the 

State. The Citrus Advertising Commission opinion, No. 

O-3364, is overruled In so far as the same conflicts 

with the holding of this opinion on the Issue of the 

tax being levied and collected for a public purpose. 

(2) Does the delegation of authority to the 

Texas Citrus Commission In connection with determining 

the amount of the tax constitute an unconstitutional delegation of legislative authority violative of Article 

fl, Section 1, and Article=, Section 48, of the Texas Constitution? 

We set out the pertinent provisions of the 

Texas Constitution on this consideration, as follows: 

Article II, Section 1, provides: 

"The powers of the Government of the 

State of Texas shall be divided into three 

distinct departments, each of which shall 

be confided to a separate body of maglstry, 

to-wit: Those which are Legislative to one; 

those which are Executive to another, and 

those which are Judicial to another; and no 

person or collection of persons, being of 

one of these departments, shall exercise 

any power properly attached to either of 

the others, except In the Instances herein 

expressly permitted." 

Article III, Section 48, provides: 

"The Legislature shall not have the 

right to levy taxes or impose burdens upon 

the people, except to raise revenue sufflcient for the economical administration of 

the government. . . .' 

We do not think that the delegation to the 

Texas Citrus Commission of the pover to fix the tax In 

question in an amount "not to exceed three cents (3#) 
.I . 

Hon. J. E. McDonald, page 24 (V-922) 

per standard packed box or bag”, constitutes an unconstitutional delegation of the power to tax. The lev 

of the tax is made by the Legislature, not the comm --? ssion, while the fixing of the amount - - not to exceed 

three cents - - Is a ministerial function properly 

delegable to an admlnistrktive agency. 

Thus It is said In 1 Cooley on Taxation (4th 

ed. 1924) 195: 

“After a tax Is once levied or lmpoaed, 

I.e., ordered to be laid, further proceedings, 

such as the extending, assessing and collecting the taxes, are administrative. ” 

And in Stratton v. Commissioners Court of 

~;;w;)n;yn;- 

“The general rule 

that a sovereign power 

upon one branch of the 

delegated applies with 

case of taxation. The 

by the Constitution In 

within that department 

authority to prescribe - _. ._ 

of constitutional law 

conferred by the people 

government cannot be 

peculiar force to the 

taxing power is vested 

the Legislature; end 

of government lies the 

the rules of taxation, _. _ ._ anb to regulate tae manner 1n wnicn mose 

rules shall be given effect. The Legis la ture 

must in every Instance presmibe the rules 

under which taxation may be laid. It must 

originate the authority under which, after 

due proceedlngs,‘the tax collector demands 

the contribution; but It need not prescribe 

all the details of action, nor even fix with 

precision the sum to be raised or all the 

particulars of Its expenditures. ” 

To the same effect on another t e of tax, see 

Perry v. City of Rockdale, 62 Tex. 451 (lb). And see 

an annotation in 70 A.L.R. 1232. 

We therefore hold that the delegation of authority to the Texas Citrus Coamlsslon In connection vlth 

determining the amount of the tax Is not unconstltutlorul 

as a delegation of the legislative power to lev taxes. 

We refrain from passing upon the nature of the 

tax as concerning Its distribution and also as concerning Its collection fiat the grower. Those questions 
Hon. J. E. McDonald, page 25 (V-922) 

have not been asked and are not covered by this opinion. 

SUMMARY 

The tax levied under Acts 51st Leg.,R.S., 

1949, ch. 93, p. 150, codified as Article 

1186, V.C.S., for the establishment and operation of the Texas Citrus Commission, Is 

not in violation of Article VIII, Section 

3, of the Constitution of Texas which requires that taxes be levied and collected 

only for public purposes. Floyd Fruit Compa y v. Florida Citrus Commission, 128 Fla. 

56;, 17 So. 248 (1937); State ex rel Graham 

ii=?= 

59 Idaho 321, t12 P.2d 649 (1938r; 

11 er v. Michl 

296 Mich., 248 

ana State Depa&ment of Agriculture v. Slbille, 207 la. 877, 22 So.2d 202 (1945). 

The tax is not In violation of Article 

II, Section 1, or of Article III, Section 

48, of the Constitution of Texas, as en lnvalid delegation of the taxing authority to 

an administrative agency. Penny v. City of 

Rockdale, 62 Tex. 451 (1884'); Stratton v. 

Commissioners Court of Kinney County 1 

s.w (T Ci 

1 Coo:ii'on %at& "& ( 

9 1 erroi rZ.); 

% ,'d! i924) 195. 

Yours very truly, 

ATTORNEY GENERAL OF TEXAS 

DJC:bh: gl 

This opinion has been 

considered and approved 

In limited conference. 

ATTORNEY GENERAL