Honorable Jack Fields

- . Opinion NO. ww-218 1957

County Attorney calhoun county Re : Whether or not the CommlssionPort ,Lavaca,

Texas em I Court of Calhoun County is subject to a requirementof a city ordinancefor the payment of fees, charges or assessments for permits for the demolition of the old buildings and the construction

of a new buildDear Mr. Fields: ai.

You have requested the opinion of this Department on the follovingquestion:

Whether or not the Commissioners ‘Courtof Calhoun County is subject to a requirementof a city ordinancefor the payment of fees, charges or assessmentsfor permits for the demolition of the old buildingsand the construction of a new building.

In your very able brief that you submittedin connection with this question,you advise us that the facts are as follows: Calhoun County is preparing to constructa new courthouse to be ‘located upon property purchasedin fee some forty years ago such propertynot being a part of any city-owned square. b-l

e City of Port Lavaca desires to make periodic progress inspectionsof the courthouse construction to enforce conformity with the City Building Code, pursuant to the police powers of the municipal corporation. The city contends that it is entitled to the payment of certain fees in exchange for the issuance oi the Buildingand Inspectionpermits, such fees to be used by the City to defray the cost of the progress lnspections. It is the position of Calhoun County that such charge is in effect a tax against the county, In violation of the provisions of Section 9, Article X,1 of the Texas Constitution, which provides:

“The propertiesof counties,cities,and towns owned and held only for public purposes, D o 0 shali be exempt from forced sale and from taxation, o
. .*Honorable Jack Fields, page 2 NW-218)

You further advise that the City of Port Lavaca adopts the view that since their ordinancefor building permits is levied against the contractor,rather than against the County,and that since the permit fee is to be paid by the contractor, the charge in this instance Is not actually to be assessed against,nor paid by the County. This contentionis insupportablein the light of the languagefound In the advertisement for bids and In the proposed contractas follows:

"In determiningthe total amount of bid the bidder shall not Include any costs of city fees for permits for building but the same shall be the responsibility of the County if the same be a legal charge against the County. O O .*
Article III, Section 48, Texas Constitution, states as follows:

"The Legislatureshall not have the right to levy taxes or Impose burdens upon the people,except to raise revenue sufficientfor the economical administration of the government,O e *e
Article 1175 (81,Vernon's Civil Statutes,gives HOE Rule cities power to provide for the mode and method for assessing taxes against any person or corporation. A tharge or fee, if for the purpose of raising revenue, Is a ;tax 9 and is levied under the general taxing power. Harris Coun Y vO Sh ooerd Tex. 291 S.W.2d 721, 723. Generally, where a ice isper actedsolely for revenue purposes,and its paymentgives the right to carry on businesswithout further conditions,such fee is a "tax*. Brrpe undel County Commissioners vO @g&& 182 Md. 514, 34 A.2d 1% The courts of other jurisdictions i&e held that as an Incident to its power to enact valid inspection laws, a State may Impose a reasonablefee to defray expenses of inspection. Such fee is not a wtaxe and the fixing of the amount of the fee is a legislativepower,which may be delegated when it seems advantageousto do so. manee v. Flann Y 176 Term. 125, 318 SeW.2d 441, 4% In jurisdictions wherErtie matter has been considered,the courts are almost uniform in holding that *taxes*are burdens of a pecuniarynature imposed for defraying the cost of governmentalfunctions, whereas, chargesare sustainable as "fees-where they are imposed to defray the cost of ; par;;;ularservicerendered for a specific

t rseo &won a ithg 264 Mist, 736, 124 N,Y.S.2d 473p We are of the view that's permit fee which Is limited to an amount which does not exceed the cost of the inspection, and is assessed for the sole purpose of defrayingthe cost of such inspectionby the City of Port Lavaca, is not a tax.Honorable Jack Fields,page 3 (W-218)

We are primarilyconcernedwith the questionof whether a municipal corporationcan Impose any regulatory strictionsupon countybuildings. It is well established

.. . . _ .__ _ rein tnls state tnat a county 1s a subdlvlslonof the state,and as such is a projectionof the state on a local scale. QQdress Countv Jones v. AlexzAder

State, 127 Tex. 343, 92 S.W.2d 1011 (1936); 9 122 Tex. 328, 59 S.W.2d 1080 (1933).It has been argued, therefore,that a city cannot exercisepolice power over the state nor wer the subdlvislonsthereof.

In 9 &m.Jw. 202, Ruildines, Section 6, it is said:
"The courtsare not entirelyagreed as to the applicabilityof municipalbuilding regulations to buildingserectedwithin the municipal limits, by or under the authority of the State, or by a county or other political subdivision of the state. According to well-reasonedcases9 a county in erectingbuildingswithin the limits of a municipal corporation must comply with such proper building regulationsas the municipality pursuant to its police power has Imposed.

. 0 0 However

1 a legislative

grant of police power to a munic pal corporation will not be deemed a cession of the legislature's prerogativeto govern for itself the institutionsof the state which may be locatedwithin such municipality, unless it may be clearly gathered from the latter act that such was the legislativeintent. D o *e

We are advised that the City of Port Lavaca operates under a Home Rule charter. Article 1175 (341,Vernon'sCivil Statutes, in delegatingcertain police power to Home Rule cities, provides that such cities may enforce ordinances necessary to "protecthealth, life and property. a 0 0w This provision is an express legislative grant, by the State, of police power to all cities operatingunder a Home Rule charter to adopt and enforce all ordinances, which are necessary for the purposes specified. We are of the view that the duty to erect a county courthouserests upon the relation of the county to the State. Its use concerns the public at large, for the whole state is interested in the enforcementof the law in each countyand the county acts in the building of the courthouseas an agency of the state. Police power is granted to the municipalcorporation by virtue of Article 1175 (34)Vernon's Civil Statutes. If the regulation imposed by the city to "protecthealth, life and property

. . .e is to be uniform in Its protection, we can perceive of no good reason why the county shouldnot be amenable to the reasonablepolice regulations which the city imposes in the interest of generalwelfare. Cook Countvv. Citv1 -

-. -

I’,. . ,

HonorableJack Fields, page 4 Ww-218)

nf Chl~ 311 Ill. 234, 142 N.E. 512 (1924). It can be argued that ihe state has committed the control of the county buildings to the county, and that the countyhas preempted the field of regulationsto the exclusionof the city within whose boundariesthe buildingsmay be located. It is true that the statemay confer upon the commissioners' court of a county such power of regulationand control as to exclude some of the broad police jurisdiction which would normally lie in the city, In this instance,however, the only power which the Legislature has conferredupon the county is that set forth in Article 2351 (7)Vernon's Civil Statutes,wherein it states:

"Each commissionerscourt shall:

jails"iniill necessary public buildings. 0 0 *e

Rwlde and keep in repair courthouses,

We are of the opinion that the above quoted statute is so general as not to vest sole police jurisdiction with regard to regulationof county buildingswith the county commissioners'court. Even if the above provisionis given the broadest applicationpermittedby its language,it is not so explicit as to infer that the county shouldhave exclusivepolice jurisdiction of such buildings. While it is well settled that the county is an agency of the state, it is likewisea creature of ~~~..~;~ vested with only such powers as conferredupon it by

0 It would be Incorrect to hold that the county is a part of the state In the exercise of police power for reasonable regulatoryand inspectionpurposes in this instance. We, therefore, think it inescapablethat police power delegated to the city in this Instance,must be construed, as between the county and the city, as a delegation of a power to the latter,which the former is expected to observe. Cook Countyv. City of Ch&-
!aKQ, if!uusConsequently,the problem resolves itself into a question of whether the inspectionhere involved is a reasonable regulationby the municipal corporationin the exercise of its police powers. It is well establishedthat any regulatorymeasures exercisedby a city by virtue of police power are exercised only in pursuanceof a legislativegrant of such police power by the State. Brewer v. State9 113 Tex.0.R. 52.2, 24 S.W. 2d 409; Port Worth and D.C. Rv. Co, v0 215 S.W.2d 407 (Tex.Civ.App.

1948 error ref. n.r.e.1 Amma 9 9
Where the subjectmatter of a city ordinanceis within the police,

power of a city, such city has broad discretion in decidingwhat is necessary and 222 S,W.2d 646 (Tex.Civ.App. 19f roper. e 9, error ref,) It has been held'- r

. . . L a ..1

Honorable Jack Fields,page 5 W-218)

that the supervision of the construction, maintenance

and repair of buildingsfall within the scope of the police power which is inherent in the State, and has been delegatedto the city. Newton v. Town of Hleh (Tex.Clv.App.

1955, error ref 9 282 S.W.2d 266, 278 This powermay be delegated by the State to municipal corporationsand such authority when delegatedcomeswithin the police power of a city. m 139 Tex. 600, 164 S.W.2d 516;U.&v of E& 225; 107 S.W.2d 872; also see McQulllin
1016. 9 2d Ed., Vol 3, pe 286, Section

Ordinancesenacted by a city requiring the payment of fees for the issuanceof permitsand allowing inspectionof constructionwithin the corporate limits of the city by the city inspectorsto insure compliance with the City BuildingCode, constitutea valid exercise of the police power of such city to adopt measures to protect life and property, Ex 62 Tex.Cr.61,136 S.W. 61. _8arte,

We concludethat the fee required by ordinanceof the City of Port Lsvaca, Texas, for the Issuance of a buildingpermit, enabling progressInspectionof county owned construction is not a tax and does not violate Article III, Section 48 of the Texas Constitution. Further, it is our view that such charge is valid in the proper exercise by the city of its police power. It must be remembered,of course9 that t.he reasonableness

of any such regulatory measure, enacted under the police jurisdiction of a municipal corporation, ultimately dependsupon the facts which exist in each particularcase.
SUMMARY
The Commissioners' Court of Calhoun County Is subject to a requirementof an ordinance of the City of Port Lavaca, Texas, for the payment of fees, charges or assessmentsfor permits for the demolition of old buildingsand for the constructionof a new building,where such fees constitutea reasonable charge to defray the cost incurred by the City in having progressinspections made.
Yours very truly,
WILL WILSON Attorney General of Texas

BHT:pf:wb 

### ByB.(/6!w,
B. H. Timmins,Jr. AssistantHonorable Jack Fields, page 6 (WW-218)

Geo. P. Blackburn,Chairman W. V. Geppert J. C..Davls,Jr. John Reeves Wm. R. Hemphill Lonny Zvlener Ralph R. Rash

REVIRWED **FOR** TRE ATTORNEY GENERAL.

BY: James N. Ludlum