. .

OF ?rExAs

PRICE DANIEL ATTORNEY GENERA,. **Awwrnv 11.**  **TExAe**

October 5, 1949

Hon. J. E. McDonald, Commissioner Department of Agriculture Austin, Texas OpinionNo. V-922

Re: The constltut1onal1tyof 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 processingand sale of cltrus fruit.

Dear Mr. McDonald:

By letterdated July 28th you have requested the opinion of this office on the followingmatter:

"The 51st Legislature of Texas created
a governmentalagency, to be known as the Texas Citrus Commission,under an act known as House Bill lo. 29.

"Under Section 14, the bill leviesa tax of 3&per l-3/5bushel unit to be collected and used in part for advertlslngpurposes.

%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 respectfullyrequest your opinionas to the constltutionalltyof that part of theact which Imposesa tax on clt:us fruit to be used for advertisingpurposes.
The Texas Citrus Commissionwas createdand its authority was definedby the 51st Legislature,R.S., 1949, ch. 93, p. 150. It has as Itsmotivating function the regulation of the Texas citrus fruit Industry. To finance the regulatorymeasure 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 theAct 'uponall citrus fruit grown In the State of Texas and packed or placed In containers and marketed, or processedand sold between September 1st of each year and August 31st of the followingyear."

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 followingpowers:
"(1) To establishand maintain executive officesat such placewithin the citrus producing area of the State of Texas as Itmay from time to time select. The location of such executive officesmay from time to time be changedby the Commission.

"(2) To employ and at Its pleasuredlscharge experts,agents and such other employees, persons,flrmsand corporationsas It may deem necessary and to fix their respectiveduties and compensation. Provided however, thatall compensationproposed to be expendedunder said paragraph (2) shall be firstapproved by the LegislativeAudit Committee.
altez(3) To adopt and from time to time to

rescind,modify or amend all proper and necesiary bylaws, rules, regulationsand orders for the exercise of Its powers and theperformance of Its duties under this Act, and to define more precisely the termsand words used in this Act and the appllcablllty thereof to speclflc facts and circumstancesand to preventby orders, rules and regulations the evasion of the taxes as well as the other acts, rules and regulations of theCommission,which such rules, regulationsand ordersas so adopted, resclnded, modified or amended shall have the force and effect of lawwhen not Inconsistentwith existing laws.
"(4) To act as the general supervisory authority over the administrationand enforcement of this Act and theprovisions 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 Imposedupon it by law.

“(5) To purchaseall necessary office equlpment, furnitureand suppliesand tomake such contractsand Incur such expensesas may be necessary or desirable to properly carry out its duties.

“(6) To conduct directly or through such lnstrumentalltlesor agencies as Itmay select, publicityand advertising programsand sales campaignsdesigned 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 lnstrumentalltlesor agencies as itmay select, for the purposes of Increasingknowledge with respect to Texas citrus fruitsand by-products and protectingTexas citrus from pests and dleases and of findingnew uses for Texas citrus fruitand by-productsand of improving the quality and yield of such fruit and by-products. No advertising or sales promotion campaign shall be directed towardspromotion of the brands or trade names belonging to any particularperson, firm or corporation,except as hereinafterprovided.

own ,~~;bTol~;~;;, change,modify, registerand trademarks, tradenames, and copyrlghts'foruse'ln connectionwith Texas citrus fruits and by-productsand to adopt, alter, amend, and rescind rules and regulationsgoverning the quality,kind and grade of productsusing same and conditionsof such use and to prohibit the use of such brands, labels, trademarks, tradenames and copyrights In connection with productswhich do not complywith such rules and regulations. All such brands, labels, trademarks, tradenames and copyrights shall be open to use by all producers of Texas citrus fruitand by-productswho comply with the rules and regulations promulgatedby the Commissionwith respect thereto.
“(8) To borrowmoney for the purpose of carrying on the functions forwhich the CommissionHon. J. E. McDonald, page 4 (V-922)

was created,but no loan shall be for a greater amount than the reasonablyanticipated revenues of the Commission for the zurrent crop year In which such loan Is made.

II

. . .
"Sec. 14. There Is hereby leviedand assessed and there shall be collected,at the times and In mani,er and from the persons, firms, associationsand corporationsherein provided,
a tax In such amount r?t to exceed Three Cents (3#) per standardpacked box or bag of one and three-fifths (1 3/5) bushels or equivalent,as the Texas Citrus Commissionmay 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 exceptionshereinprovided, said tax at said rate Is hereby leviedand assessed and shall be collectedas herein provided,upon all citrus fruit grown in the State of Texas and packed or placed in containersand marketed, or processedand soldbetween September 1 of each year and August )lst of the followingyear. 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 followingyear but not sold until after the next September lst,upon such sale it shall be taxedat the rate fixed by the Commission on or before the September 1st Immediatelypreceding such sale.

"For the twenty-four (2

t urpose of.computingsuch 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 standardpacked box; twelve (12)units of No. 3 cans of processed citrus fruit shall be taxedat a rate one and twenty-six one hundredths (1.26) times the amount of tax for a standardpackedbox: six (6)units of No. 10 cans of processed citrus l‘ruit shallbe taxed in the amount one and thirty-threeone hundredths (1.33) times the tax for a standardpacked box; seventy-two (72)units of SIX (6) ounceHon. J. E. McDonald, page 5 (V-922)

cans of processed citrus fruit shall be equlvalent to a standardpackedbox 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 standardpacked box of fresh fruit and shall be taxed In the same amount; each box, basket or bag containingapproxlmately four-fifths (4/5)bushel of fresh fruit shall be taxed In an amount equal to one-half (l/2) the tax for a standardpacked box; each box, basket or bag containingapproximately two-fifths (2/5)bushel of fresh fruit shall be taxed in an amount equal to one-fourth (l/4) the tax for a standardpackedbox; each basket or bag containingapproximately one (1) bushel of fresh fruit shall be taxed In an amount equal to sixty-twoand one-halfper cent (6293) of the tax on a standardpacked box: each box, basket or bag containing one-half (*)bushel of fresh fruit shall be taxed in an amount equal to thirty-oneand twenty-fiveone hundredthsper cent (31.25%)of the tax on a standardpacked 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 sameamount; ten (10) eight (8) pound bags of fresh fruit shall be equivalent to a standardpacked box of fresh fruit and shall be taxed In the
same amount; sixteen (16) five (5)pound bags of fresh fruit shall be equivalent toa standard packed box and shall he taxed In the same amount; four and one-half (4$)gallons of single strength citrus fruit juice or otherprocessed 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 packedbox and shall be taxed In the same amount as such standardpackedbox.

“For the purpose of computing such tax on other containers of freshand processedTexas citrus fruit,and enforcing the collection of the taxesherein levied, the Texas Citrus Commission is authorized, empoweredand directed to adopt rules and regulations to preventHon. J. E. McDonald, page 6 (‘J-922)

evasion and ensure collectionand definingwhat is the equivalent of a standardpacked box of fresh fruit,and the proportion of the tax as levied per standardpacked 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 payableby 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 exemptionunder the provisionshereof, shall, before becoming entitled thereto, file an appllcatlon for such exemptionand receive an exemption certificate from Texas Citrus Commission at the time and In the manner hereinafterprovided.

“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 corporationspacking or placing same in containersand marketing such fresh citrus fruit or processing and selling ‘~, such processed citrus fruit and citrus fruit by-, products, to the Texas Citrus Commissionat 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 processingand sale of the proceased citrus fruit and by-products, towhich such taxes are applicable. Same shall bear Inter&t at the rate of ten perzentum (10%)per annum from and after the due date thereofuntil **paid,** and **ohs11** be personal obligationsand claims against each person; firm and corporationwho packs or places In containersand markets or processes and sells or **PUP** chases all or any part of such fresh citrus fruit aftep It Is packed for market or such processed fruit and by-productsafter same are processed. Ali persons, firms and corporationswho shall sell or purchase any fresh or processed Citrus fruit and by-productsupon 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-productsHon. J. E. McDonald, page 7 (V-922)

as the Texas Citrus Commissionmay 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 Commissionand without additional compensation to collect the taxes Imposedby thisAct and to remit same to said Commissionas herein provided and to otherwiseassist the Commission In the enforcement of this Act and rules and regulations promulgatedhereunder. They shallmake from time to time such reports of their collections and remittancesand other activities in the enforcementhereof as may be requiredby said Texas Citrus Commlsslon. Said Texas CitrusCommission may also employ additionalagents and representatives for the collection of said taxes, and to assist In the enforcementhereof.

"The Texas Citrus Commissionmay require any or all personswho handlemoney or are responsible for collecting the taxes herein levied to give bond for the faithfuland honest performance of theirduties In such form and amount as may be prescribedby the Commissionand 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. " 2

. [I Agriculturaland Mechanical College

of Texas-WeslacoExperiment Station No. 15 Cltrus vd.
Cltrus(&d? exas College of Arts and Industries

"Allmoneys collected from the taxes levied from time to time pursuant to the provisions of this Act shall be turned over to the Texas CitPuSc

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

Commission, Its officersand 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 Agriculturaland Mechanlcal College of Texas-WeslacoExperiment Station No. 15 Citrus Fund and one-eighth thereof In said Texas College of Arts and IndustriesCltrus 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 Agrlculturaland MechanicalCollege of Texas-Weslaco Experiment StationNo. 15 Citrus Fund and of said Texas College of Arts and IndustriesCltrus Fund for the biennium ending August 31, 1951,
are hereby appropriated to the Agriculturaland Mechanical College of Texas, Texas Agricultural Experiment Station System-WeslacoExperiment StationNo. 15 and Texas College of Arts and Industries, each respectively to be used by said respective institutions In educationand research for the purpose of Increasingknowledgewith respect to Texas citrus fruits and by-products, and protectingTexas citrus fruits from pests and diseasesand of findingnew uses for Texas citrus fruitsand by-productsand of improving the quality and yield of such fruitand by-products.

'varrantsshall be drawn by ,the Comptroller of PublicAccounts 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 economicwaste of food and loss of propertyand natural resources of this State andHon. J. E. McDonald, page 9 (V-922)

to encourage and foster the development of a major Industry, the Texas citrus Industryby 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 fruitand by-productsproduced therefrom. Lack of such fostering care for such Industryhas in the past and will In the future (unlessprevented) result In unnecessaryand avoidablewaste of
an importantresource 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 ordinarygovernmentaland 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 constitutionalityof the tax Imposedby the Act with respect to whether the tax Is for a "publicpurpose'wlthIn the constitutionalrequirement of ArticleVIII, Section 3, of the Texas Constltutlon,andas to whether the delegation of authority to the Texas Citrus Commission In connection with determining the amount of the tax constitutes
an unconstitutionaldelegatlon of legislativeauthority violative of Article II, Section I, and Article III, Section 48, of the Texas Constitution.

(1) Is the tax for a "publicpurpose"within the constitutionalrequirement of ArticleVIII, 3ectlon 5 of T the exas

It Is provided in ArticleVIII, Section 3 of the Texas Constitution that:

'Taxesshall be leviedand COllQCtQd by general laws and for public purposes only."

The functions of the Texas Citrus Commlsslonare enumerated in Section 9 of the Act, set out heretofore. In addition to the usual administrative functions of operating physical facilitiesand employingpersonnelas well as of furthering Its regulatory powers, the Commissionhas speclflc authority to conductadvertising campaigns to foster and promote the citrus Industry. To this particularauthority the followingdiscussionwill be principallydevot-Hon. J. E. McDonald, page 10 (V-922)

ed, as Its characteras a public purpose Is themost controversial of the enumeratedpowers in so far as the tax revenue's expenditure thereon Is concerned.

purpose" The requirement that taxationbe for a "public

Is fundamental to the jurisprudenceof this country, and Itsnecessity has been Incorporated In the constltutlons of most of the States of the union. It has, therefore, occasionedmuch judicial lnterpretatl?nto determine what Is within the field of authorized taxation. The volume of judicial constructions of what constitutesa "publicpurpose* within the inhibitoryprovisionshas proven enllghtenlng and we shall, through the course of this opinion, set out those expressionswhich we feelmost nearly embody a recognizable rule.

The determlnatlon of whether a given object of taxation Is for a *publicpurpose't is governed, In the light of existingauthorities,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 ConstitutionalLimltations (8th ed.,1927) 264, that:

"TheLegislature is tomake laws for the public good, and not for the benefit of lndlvlduals. It has con\trol of the publicmoneys and should provide for disbursing them only for public purposes. Taxes should only be levied for those purposeswhich properly constitutea 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 legislaturemust decide upon Its own judgment,and In respect to which It Is vested with a large discretionwhich cannot be controlled by the courts, except, perhaps,where Its action Is clearly evasive,and where, under pretense of a lawfulauthority, it has assumed to exercise one that is unlawful."

The United States Supreme Court has spoken on the problem often and foPcefully. In Savingsand &an Assoclatlon v. Topeka, 22 U.S. 455, 20 Wall. 655, Itwas 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 enterprisesand 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,

. . .
"Wehave 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 decidewhat is a public purpose In this
sense and what Is not.

"It Is undoubtedly the duty of the Legislaturewhich Imposes or authorizesmunlclpallties to Imposea 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 Interposingwhen a violation of this principle Is clear and the reason for lnterference cogent. And in decidingwhether, In the given case, the object for which the taxes
are assessed falls upon the one side or the other of this line, theymust be governedmalnly 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 supportand for theproper use of the government,whether State ormunlclpal. Whatever lawfullypertains to this and is sanctionedby timeand the acquiescence of the people may well be held to belong to the public use, and proper for themaintenance of good government, though thismay not,,bethe 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 electionswas for a"publlc purpose"was Involved. It was there said by Chief-Justice Phillips that:

"Taxesare burdens imposed for the support of the government. They are laid as a means ofHon. J. E. McDonald,page 12 (V-922)

providing public revenues for public purposes. The sovereignpower of the Statemay be exercised In their levyand collection only upon the condition that they shall be devoted to such purposes;and no lawful tax can be laid for a differentpurpose. 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 taxationand becomes plunder.

"It Is not easy to state In exact terms what is a 'publicpurpose' In the sense in which t&t term Is employed as a llmltatlon upon the State's power of taxation. The framers of the Constitutionwere doubtless sensible of this difficulty, for they did not attempt to define It. Many objectsmay be public In the general sense that theirattainmentwill confer a public benefit or promote the public convenience,but not be public In the sense that the taxing power of the Statemay be used to accomplish them. The powers of the State as a sovereigntyexist only for government purposes. Theymay be freely exerted In the discharge of all the governmental functions of the State; but cannot be applied to uses, thoughpublic ln aim and result,which are not governmental In their nature. As themeans provided for the support of the government in Its administrativeduties and existingalone for that end, the taxing power may be employed for no purpose save thatwhich In a true and just sense Is related to the performanceby the State of Its governmental office. The appropriation of the public revenue is a legislativepower, and the Legislaturemust necessarilybe allowed a large discretion In determining to what uses publicmoneys 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 Legislatureas well as Its provident foresight has been committed the public trust ofmaking such use of It as will afford the economicaladministration of the governmentwhich both the spirit and the letter of the Constitution enjoin. The term 'publicpurpose' as used In this relation Is not, therefore, to be construednarrowly, so as to deny authority to the LegislatureHon. J. E. McDonald, page 13 (v-922)

to make such provision for the admlnlstratlon and support of the government In Its several branches and subdivisionsas will faithfully subserve the present and future Interests of thepeople. The llmltatlon imposedby the Constitutionupon the power Is, however, lmperatlve. And It Is essentially true that It does not permit taxation for all purposeswhich In a broad and general sensemay be regardedas public, but expressly confines Its exercises to only those public purposeswith which the State,
as a government, Investedwith 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 revenuesmay be rightfully devoted.

"As towhat Is a public purposewithin the meaning of Section 3, Article 8 of the Constltutlon, no better test can be presented than the Inquiry: Is the thing to be furtheredby 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 thingswhich 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, tomaintain. 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 thingswhich, either by commonusage or because they are In no proper sense the Instrumentsof government, it is the duty of the people to provide for themselves. It Is not all thingswhich
answer a public need or fill a publicwant that it Is within the authority of the State to furnish for the people'suse or supportat the public expense. Manufacturing industries,railroads, public enterprises of many kinds, private schools and private charitable Institutionsall afford a service to the public, but the State Is without any power to maintain them. Religon Is generallyHon. J. E. McDonald, page 14 (V-922)

esteemed a helpful influence for publicmorality. But the Constitution expressly declares that no publicmoney 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 courtwas passing on a tick eradicationlaw as being in contravention of the “publicpurpose” requirement of ArticleVIII, Section 3, wherein the exuense of enforcement was required by the law to be paid out of county funds. The Court held:

“Thequestion as to whether an act of the Legislature of this statewill servea public
use or purpose is, in the first instance,a question for the determination of the Leglslature, and that determination or decision cannot be reviewedand the contrary determinedby the judiciary except In instanceswhere the legislativedetermination of the question Is palpablyand manifestly arbitrary and lncorrect.”

The Texas courts have held that the following functionswere within the “publicpurpose” requirement: the levy of taxes by a municipality for a Board of City Develoomentauthorized 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 establishand 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 determiningwhat Is a “publicpurpose”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 taxesmay not be levied for private purposes. * * lHon. J. E. McDonald, page 15 (v-922)

"'"Publicpurpose" Is a phrase perhaps incapable of definition,and better elucidated by examples.

*****

"'In consideringwhat 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 controlledby decisionswhich come from a remote time, and thereforemay be out of tunewith modern conditions. The question of what is a public purpose Is a changing question, changing to suit Industrial Inventionsand developmentsand to meet new social conditions. law is not a fixed and rigid system,but develops, a living thing, as the Industrialand social elementswhich form itmake their impelling growth.'"

There being no Texas authority precisely in point, we deem it necessary to examine authorities in those jurisdictionswhich have been oonfrontedwith the levy of a tax for a purpose similar to that for the Texas citrus Industryhere Involved. Numerous other States having variousdifferingagriculturalpursuits for substantialparts of their economieshave enacted legislationregulatingand fosteringa particularagriculturalpursuit 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 SupremeCourt of Florida sustainedan act of the legislature of that state levyinga tax on each standard-packedbox of oranges, grapefruit or tangerines grown in the state to be collectedand 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 constitutionalrules 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 taxwas levied on the privilege of turning said fruits Into the channels of trade,and was a valid taxHon. J. E. McDonald, page 16 (V-922)

regardlesa of whether theywere 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 judicialnotice of-the fact that the raising of citrus f&Its Is one of the greatest industries of the State of Florida, and held that “Itwas competent for the legislature to find that it was essential for the success of that industry that its reputationbe preserved In other stateswherein such fruits find theirmost extensivemarket.”

In Maxcg, Inc. v. Mayo, 103 Fla. 552, $5~5~0. 121 (1931), the Supreme Court of Florida said: court takes judicialnotice of the fact that the citrus Industry of Florida Is one of its greatestassets. Its promotionand 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 SupremeCourt of Idaho had-under consideratlonVastatute of that state levying a tax of one cent on each loo-poundunit of apples, prunes, potatoes and onions shippedwithin the state, for the purpose of providinga 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 Industrieswas as much a matter of public concern to Idaho as the citrus industrywas 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 CourtHon. J. E. McDonald, page 17 (V-922)

of Michigan had before it a statute of that state known
as the "BaldwinApple Act," which levied 'anassessment 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'sagent when shipped,"and providing that "allmoneys leviedand collectedunder this Act shall be expended exclusively to advertise apples." The Act was sustainedas a validand constitutionalexercise of the legislativepower, as not being discrimlnatory, not a tax on property but on theprivilege of putting apples In themarts 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 Louisianawas concernedwith an act hf the lealslature of that state creating the Louisiana Sweet POtatoAdvertisingAgency, imposinga tax to be collected by the Louisiana State Department of Agricultureand Immigration, on all sweet potatoes shipped in Louisiana. The Agency was chargedwith the duty of planningand conductingan advertising campaign for sweet potatoes out of the funds realized from such tax. The act was attacked under the Louisiana Constitutionas not being levied for a public purpose. It was there held that the tax was 'fora 'publicpurpose' since it redounds to the public welfare by Rromoting growth of an importantagrlcultural Industry.

Because of the slmilarlty of the regulations and of the constitutionalconsideration,we feel constrained to set out an extensiveportion of the language used ln the case, as follows:

"Accordingto the evidence In the record, sweet potatoes, from the standpoint of acreage and value of production, constitutes the fourth largest,and one of themajor, commercial crops of Louisiana, ranking only after sugar cane, rice and cotton. Corn Is excepted from that classificationsincemost of It is used on the farmswhere produced In feeding hogs. cattle and otheranimals. It Is true that on the basis of percentage of acreage planted the sweet potato crop falls conslderably behind the other threemajor commercial crops; nevertheless it is of great Importance in the agricultural economy of this state asHon. 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 104,000acres with an average annual yield of 7,185,000 bushels. Furthermore, in this connection, considerationis to be given to the agricultural trend in the southern section of
our nation which is to favor diversified farming, therebyavoiding a concentrationon one crop and preventing serious loss to the farmer In particularand 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:

“Theproceeds 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; theyare devoted exclusively to advertising the sweet potatoes, thus promoting the growth of an Important and major Industry. By that advertising, especially in stateswhere very little is known of the value and usefulness of the sweetpotato, therewill result an increased consumption.This, In turn,will compel largerproductionand more sales throughout this state, as a consequence of which a greater prosperitywill be realized not only by those directly Interestedbut 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,particularlyas to Its being for a “public purpose. The authoritiesare not without conflict,and
we set out hereafter two comparativelyrecent cases to the contrary.

In StuttgartRice Mill v. Crandall, 203 Ark. 281, 157 S.W.2d 205 (1941), the Supreme Court of Arkansas consideredan act passed in that State called the “Rice.DevelopmentCommission 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 contingentupon the. .

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

adoption of similaracts 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 theArkansas "Rice Development commlsslon Law" was unconstitutionalunder the Arkansas Constitutionas not being for a public purpose. The basis of that holding is found In the following language:

"Broaduse may be made of the state's police power; and If the treatment of rice by grower,miller, seller, or others dealing with it createsa hazard against which there should be protection, then,admlttedly,any agency throughwhich It passesmay be subjected to regulationand a tax laid for the reasonable cost. But like corn,wheat, and all agricultural commoditiesof commonuse, rice Is extremelywholesome. It containsno 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 153,095acres. 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 (althoughsuch farmersare among themore aggressive, progesslve,and substantial of the state)are such as to call for protective Interventionby the state's taxing powers on the theory that the commonwelfare is Involved? That which is termed the logic of this contention Is shreddedby the facts."

In Llnaamfelterv. Brown, W. Va. 52 S.E.2d 687 (1949), the Supreme Court of West Virginia held unconstitutionalan act of the legislatureof that state creating theWest Virginia StateApple Commission and levyinga tax on commercialapples 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 publicpurpose. That court cited the Florida Citrus CommissionCase, the Michigan Apple Commission Case, the Idaho fruit and vegetable case, and the Louisiana Sweet PotatoCommission. .

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

Case, but distinguished theWest Virginia situation from those cases,as follows:

“Weare 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 ‘channelsof commerce’ Is an important undertaking to the persons engaged in thatbusiness. Furthermore, it may be said that the undertaking or enterprise Is Important to the parts of the Statewhere a considerableportion 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 businessas 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 statemade by the taxedagricultural industry.

The latest Texas Almanac, being that for the years 1947-1948,reveals pertinent facts concerning the Texas citrus lndustry. Texas grapefruitproduction of 24,000,OOOboxes In 1945 placed It second only to Florida In such production. Averageannual production from 1934 to 1943 has been over 12 000,000boxes. Value of the 1946 grapefruit cropwas 821,675,000,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,OOOboxes valued at $9,625,000. Through June, 1946, 36,513 carlots of citrusmoved out of the Lower Rio Grande Valle
r The Texas Extension Service estimated that late In 19 6 there
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 graperrultprocessed for juice Increased from 20,000 In 1929 to 10,559,OOO In 1945. According to Informationreleased by the United States Department of Agriculture, the value of citrusproduction in Texas in 1945was $41.664. OOO.while the total valueHon. 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 figuresas to productionare available, cltrus production totalled $18,041,000as comparedwith the total value of all field crops, fruits, nuts, and truck crops amounting to $1,452,300,000,Indicatinga 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 previouslyheld position in the agricultural economy of this State.

A further consideration is found In the fact that the legislativepurpose in enacting the Texas citrus Commission Act, the statutewe 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 economicwaste of food and loss of propertyand natural resources of this State and to encourageand foster the development of a major Industry, the Texas citrus lndustry by fostering research as to new uses; by preventingdestruction thereofby pests and diseases and by Improving the quality of and stimulatingdemand for, such Texas citrus fruit and by-productsproduced therefrom. Lack of such fostering care for such industryhas in the past and will in the future (unlessprevented) result in unnecessaryand avoidablewaste of an Importantresource of this State. Such loss and waste will Imperil the ability of producers of Texas citrus fruit to contribute in appropriateamounts to the support of ordinary governmentaland educational functions,and increase the tax burdens of other citizens for the same purpose. Hence this Act Is passed to further the publicwelfare an9 general prosperity of the State of Texas.
Pert~inent

to the effect to be given the statement of the legislativepurpose 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 'theproduction of sweet potatoes Is one of the importantagricultural industries of the State of Louisiana; that thisact Is passed to conserveand promote the prosperityand welfare of the State of Louisianaand of the sweet potato industry of the stateand for fosteringand promotingbettermethods of merchandisingand advertising the sweet potatoes produced In this state. The purpose of this act Is to expand themarket and increase consumption of sweet potatoesby acquainting the general public with the health giving qualitiesand the food value of the sweet potatoes grown In the State of Lo*lslana, thereby people."

promoting the general welfare of our

"Thedeclaration that the act was passed to promote the prosperityand welfare of the State of Louisianaand of its people is an expressed legislativerecognition 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, themembers of the Legislatureare the direct representativesof all of the
p ple of the State, their declaration cer- &ly furnishes the presumption that the public generally Is to be benefitedby the leve."

Upon a careful considerationof all of the authorities and of the circumstancessurrounding 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 Constitutionrequiring that taxes be leviedand collected for public purposes only.

It is necessary to note In this connection that in a previous opinionNo. O-3364, dated April 17, 1941 It, was held bx this office thata vertising Iav , Introduced In the troposed "CitrusAd7th Legislature,was unconstitutionalas not being for a public purposewlth-Hon. J. E. McDonald, page 23 (V-922)

In the requirement of the Texas Constitution, citing previous opinion No. 0-3106 which held a proposedRice DevelopmentCommission 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 Industryand also In that Its legislativepurposewas not stated in the bill as being for the general welfare of the people of the State. The Citrus AdvertisingCommission 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 leviedand collected for a public purpose.

(2)Does the delegation of authority to the Texas Citrus Commission In connectionwith determining the amount of the tax constitutean unconstitutionaldelegation of legislativeauthority violative of Article fl, Section 1, and Article=, Section 48, of the Texas Constitution?

We set out the pertinentprovisions of the Texas Constitution on this consideration,as follows:

Article II, Section 1, provides:

"Thepowers of the Government of the State of Texas shall be divided into three distinct departments,each of which shall be confided to a separatebody ofmaglstry, to-wit: Those which are Legislative to one; thosewhich are Executive to another, and thosewhich are Judicial to another; and no person or collection of persons, being of
one of these departments, shall exercise any power properlyattached to either of the others, except In the Instancesherein expresslypermitted."

Article III, Section 48, provides:

"TheLegislature shall not have the right to levy taxes or imposeburdens upon the people, except to raise revenue sufflcient for the economicaladministration 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 standardpacked box or bag”, constitutesan unconstitutionaldelegation 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 functionproperly delegable to an admlnistrktiveagency.

Thus It is said In 1 Cooley on Taxation (4th ed. 1924) 195:

“Aftera 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. CommissionersCourt of ~;;w;)n;yn;-

“Thegeneral rule that a sovereignpower upon one branch of the delegatedapplies with
case of taxation. The by the Constitution In within that department authority to prescribe
- _. ._ of constitutionallaw conferredby the people government cannot be peculiar force to the taxingpower is vested the Legislature;end of government lies the the rules of taxation,

_. _ ._ anb to regulate taemanner 1nwnicn mose rules shall be given effect. The Legislature must in every Instancepresmibe the rules under which taxationmay be laid. It must originate the authority under which, after due proceedlngs,‘thetax collectordemands 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 thereforehold that the delegation of authority to the Texas Citrus Coamlsslon In connectionvlth determining the amount of the tax Is not unconstltutlorul
as a delegation of the legislativepower to lev taxes.

We refrain from passingupon the nature of the tax as concerning Its distributionand also as concerning Its collection fiat the grower. Those questionsHon. J. E. McDonald, page 25 (V-922)

have not been asked and are not coveredby this opinion.

SUMMARY

The tax leviedunder Acts 51st Leg.,R.S., 1949, ch. 93, p. 150, codifiedas Article 1186, V.C.S., for the establishmentand operation of the Texas Citrus Commission, Is not in violation of ArticleVIII, Section 3, of the Constitution of Texaswhich requires that taxes be leviedand 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 Agriculturev. 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 taxingauthority to
an administrativeagency. Penny v. City of Rockdale, 62 Tex. 451 (1884'); Stratton v. CommissionersCourt of Kinney County 1
s.w (T Ci 1 Coo:ii'on %at& "& ( 9 1 erroi rZ.); % ,'d!i924) 195.

Yours very truly,

ATTORNEYGENERAL OF TEXAS

DJC:bh: gl

This opinion has been consideredand approved In limited conference.

ATTORNEYGENERAL