*1 it best fectly just consider sides. In this case we both respondents it, that, if the the trial court entered so leave pursue course to what in future a similar wish to somewhat past, they they in will have the burden followed have arise, than, alleged they justifying rather new situations as carry modification, forcing petitioners all purported again they and the carried for the have over the burdеn up point. profession to this Appeals judgment is reversed of the Court of Civil
that of the trial court is affirmed.
Opinion April 18, 1956. delivered Smith, joined by Mr. Culver Justice Justices Griffin dissenting. Calvert, agree majority opinion in case. I cannot Appeals judgment I would affirm the of Civil of the Court judgment word addition delete from the trial court’s enjoined in so would not be “stockholders” stockholder why hap- this pens I can see no reasоn the stockholder who cause. engage legitimate practice lawyer should not preparation of poration law in of the instrument which this cor- might interested.
Opinion April 18, delivered 1956.
Rehearing July overruled 1956. Harris, Shepperd, Texas v. John Ben May 2, No. A-5591. Decided 1956.
Rehearing July 11, overruled (291 721) 2d Series *2 Holman, County Burke Attorney, of County, Harris relator. Shepperd, Attorney General, John Ben Elbert M. Morrow Pinedo, and Frank Assistants Attorney General, for respondent. opinion
Mr. Justice Culver delivered the of the Court. County require Harris seeks a mandamus to approve County proposes certain bonds which the to issue under the of the 54th Acts Legislature, of the Act reads: local
“This law for the maintenance of operative majority shall not until a unless or property taxpayers voters, qualified of the resident are who residing County, participating election called purpose, placing opera- shall have voted in favor of it in calling, holding procedures tion. The and the effect of *3 election, prescribed in are Section 8 hereof.” provides shall, upon The Act further that Tax the Collector receiving registration application vehicle, for of а motor registration equal collect an additional sum to one-third the of purpose acquiring fee shall which be used for the of of way County for state and federal in and expense. and for incidental The Court au- Commissioners is negotiable only thorized in its discretion by issue secured bonds spe- created the fund from the collection of these fees. At a majority purpоse cial election called for the voted in favor operation. placing of the Act in approve The has refused to the is- bonds ground on
sued the Commissioners Court that the Act is points upon conclu- unconstitutional. The he bases his which are as follows: sion
(1) Act is pro- The measure and contravenes the Article visions of Section Constitution which State general provides “that taxes shall be levied and collected public purposes only.” for law and registration
(2) motor vehicle fee authorized Ar- required by provisions 7a is ticle Section of this as well sections uniform of other of the Constitution to be state- as application. wide
(3) prescribes of Where Constitution the sources purpose building of counties for the revеnue available to these sources are exclusive. roads Article Section 7a of the grant ex- is a confirmation of Constitution not a isting policy application in of the state motor be followed registration fees. vehicle
(4) prescribed by method adoption with provisions is conflict Constitution, requirements of Article Section and, therefore, operаtion placing Act this basis County the election held in Harris must held void and of no effect.
(5) delegated County properly pow- If Harris has been registration, er to collect the increased fees from motor vehicle authority at- commissioners court has still exceeded tempting prescribe collected for 1956 shall be fees succeeding years. collected in
Admittedly application act local to Harris wholly raising pur and is revenue measure pose, explained act, providing county an with rights acquire way source revenue to needed highways. opinion state and federal for and, our there derived, all, taxing power state, must if at from the clearly therefore the act violative of Article provides 3 of our Constitution which taxes must be levied and collected laws. *4 charge regulation A purpose fee which has for im is posed police power. hand, under the On the other if for purpose raising revenue, taxing of it tax is a and levied under
power. pointed Cooley This rule is Taxation, out in on Fourth Edition, 1, Vol. Sec. 27 as follows: “The distinction between money police power оf demand under the and one under made to tax not is so much one of form as of substance. proceedings may although The cases, the same as in be the two essentially purpose regu is different. The one is made for regulation, lation and the other for revenue. If it an ex police power ercise of the while if for revenue it is an exercise taxing power. If, thеrefore, purpose of the is evident in particular instance, difficulty there can classifying be no referring proper power. case and it So-called license are two purpose taxes of kinds. one is tax for the of re is, other, strictly speaking, venue. The which not a tax at all merely police power, imposed exercise is a fee * * regulatiоn. purpose of *.”
22
approved
Cooper,
in Hurt v.
130
was followed
This rule
896,
saying:
899,
433,
court
2d
110 S.W.
Texas
given sta-
whether a
determine
is sometimes difficult to
“It
regulatory
or as a
as a
measure
classed
tute should be
recognized
generally
principle
distinction
of
measure.
whole,
when,
of the statute as
from a consideration
raising
provided
is the
of
therein
purpose of the fees
primary
revenue,
taxes,
occupation
and this
are in fact
fees
then such
designated.
they
are
On
regardless
which
of the name
regu-
appears
purpose
hand,
primary
to be that
if its
* *
not
*.”
fees and
taxes.
lation,
levied are license
fees
then the
1,
488, 496,
Galveston,
City
75
97 Texas
S.W.
In Brown v.
constitutionality
an ordi-
concerned
the court was
requiring
payment
City
“license
nance of the
of Galveston
operating
keeping
certain
vehicles
dues”
ruling
city.
question
In
on this
the court
private
use within
police power
authorities hold that the
can-
“It is true the
held:
and,
raising revenue,
purpose alone of
when
for the
used
be
raising revenue,
city
purpose of
will
for the
exercised
power,
taxing
police.”
not of the
virtue of
held
be
be
Dallas,
App.
City
Civ.
2d general provision used of the State “taxes” as Con- term ordinary only. ad valorem taxes In that referred stitution *5 dealing however, question case, court was the as to special imprоvements assessment for street not a or whether excepting “taxes” in the term the clause within included was the homestead section of Article the Consti- of Section up pointing the distinction The court between tution. special ordinary acceptation as- of the term and a the against property on the basis of enhanced sessment levied the value. variety taxing
Certainly power the state embraces apart of forms and measures from based on value. those gasoline, cigarettes liquor pur- The tax on are for revenue authority necessarily poses only levy and the to these taxes is taxing power derived from the state. Article taxes, expressly property poll 1 of the Constitution authorizes taxes, occupation and income taxes. Section 17 of taxes Legislature power require same article confers to subjects objects “in such to be taxed manner as principles with of taxation fixed in this consistent Con- principles stitution.” fixed One so Constitution is only. that taxes shall be levied and collected laws Petitioner, County, that, maintains “Article Sec. 7a, gives Legislature specific authority and absolute legislation by special enact law to collect automobile license constructing fees for purpose highways which includes purchase way; with the constitutional limitation that such fees to be collected and allocated to counties shall never be less than the maximum now amount collected.” We are unable to read provision any into this constitutional given Legislature special to enact this kind of local and law. proceeds It directs how the from the automobile license expended fees shall portion and confirms to the counties the set aside to them out of these fees under the law in effect on January 1, application 1945. This section is statewide reasoning no Legislature can it be said authorize adopt any different fee schedule one more counties provision grant state. This does not constitute a power, existing policy. but affirms
The relator contends that has the inherent legislation to enact state, 382 for the through Legislature, positive has and absolute control of all they state the means which are construсted and maintained. support of that contention it cites Robbins v. Limestone
Co., 918. In that case the control ling whether title ownership issue was of *6 county lay the state in the and road districts of
roads the court or and under the control of the commissioners counties following holding that The relator relies on the in the state. case: a being public highways primarily of “The estabishment government belonging State, to
function to thе the of Legislature, primarily and in establish them resides may Legislature ex- of constitutional restrictions absence right direct, delegate political a subdivision that State, or it to ercise instrumentality, general agency, or or to such other may of this scope, it determine. The exercise or local in as its by local officers right by of political the State subdivision Legislature authority statutory therefor. upon is founded them, over may possession public and control of roads exercise * * * * designate. agencies may through and Legislature, then, and exclusive “The has sole only, highways, public and to pertaining roads and unless to be, all, power may limited if at modified or extent that plain provisions of the Constitution.” other although holding we are in aсcord the state but With through Legislature does have control and over delegate and public that control all roads of state Legislature agencies, follow that has it does not to levy and construc- for the maintenance local tax rights way. buying highways tion of urged point relator motor The next is “that vehicular using registration privilege a license fee for fee is оccupa- property highways valorem or and is in no ad sense require- not violate constitutional tax and thus does tion uniformity. Relator equality maintains ment Department, App. Highway Civ. in Atkins v. State decision for), controlling. applied court 226, (no writ 201 S.W. registration provided paid fee for each held that the there highways provisions under the operated motor vehicle Legislature 35th Chapters 207 of the was not 190 and operating privilege of for the ownership a license fee on public sections on the his automobile appellant violated these two said Constitution ordinary ad valorem taxes related acts however, Court, found that while taxes. The to license and not roads, act the construction of never- purpose the main regulation purpose, theless there was the other that of operation highways, use of motor vehicles on the said further: *7 may pay-
“It be conceded the funds derived from the registration ment expended fees are be in the construction necessarily provides, roads. The law so but that does it a make effect revenue measure in the sense and with the by appellant. contended for There is inhibition in the no Consti- against Legislature making tution provision, and power provide funds, therefore it had the for such use of the leaving expense administering policing, regulating, regard the law in operation to the use the vehicles highways, paid by by to be out of other funds the state or counties, inas other cases.” gen- Of course the act under considеration that court eral applied law and to all owners within the State automobile of Texas. court, more recent and authoritative decision
Payne Massey, 493, v. 237, 145 Texas held: 196 2d it was S.W. “A is merely permit license privilege or other- to do what wise would be object unlawful. confer of a license is to or which does not exist A fee without it. license is the sum privilege carrying exacted particular for the on a occupation business, regula- or imposed either for police tion regula- under revenue, or for or for both tion and 168, 325, revenue. 3, 5; 37 C.J. Secs. 4 ann 33 Am. Jur. Sec. part “Article 6698 2, 116, Chapter is a of Section of Title
1, St., dealing Vernon’s regulation regis- Ann. Civ. tration of motor vehicles. Under such state title the exacts registration license or privilеge fee which is a tax in the nature of a license toll for the use of the of this state. [*] [*] [*] >> In the regulation case here there is no element of the act solely
concerned with revenue. Relator cites a number of out of uphold state authorities that legislative acts of similar somewhat nature as the one here consideration, under but in none of those far stаtes so as our 26 shows,
research provision, is there to found a constitutional ours, such as that taxes must be levied laws. These State, 483; are Burnett App. 396, v. 20 Ala. 102 Hill v. So. Moody, 422; 325, Storage Fireproof 207 Ala. 93 So. Harder’s Chicago, 245; & Van Co. v. 235 Ill. 85 N.E. Lind Frazier v. sey, Ogilvie 162 436; Hailey, Tenn. 36 2d S.W. v. 141 Tenn. Talbert, 645 and Leonard v. S.C. S.E. 2d 603. Relator further maintains that of Article terms empowered to- the Constitution special enact this provides: local law for the section “And the
Legislature may pass pub- local laws for the maintenance of lic highways, roads and required without the local notice special or local laws.” Several times has this constitutional provision been construed. *8 Grayson County, 153, Smith v. App., 18 44 Texas Civ. 921, 923, refused, S.W. upheld special writ of error the court a county against road holding law constitutional attack that Sec 2, 11, tion repair county Article that the construction and provided general roads by laws, shall be for did no conflict with 9, 8, reasoning: Section Article “When one section of the Consti expresses general tution particular thing a intention to ado expresses particular another a incompati section intention genеral intention, ble with particular intention is to be exception.” considered in the special nature an Other local or road upheld laws have Plowman, been in Dallas v. 99 221; Patton, S.W. Austin Brothers v. 245 S.W. Quinn 991; 499; Hughes Johnson, v. 91 S.W. v. Commissioners' Co., Court Harris 35 S.W. 2d but in none of these road Legislature attempt levy any laws did the to tax. right Legislature case where levy to considered,
tax in a know,, local roаd law has been so far as we Mayenberg is the case of Ehlinger, App., 1920, v. Tex. Civ. 315. There the court held: do think upon Legis- “We not that conferred lature Section 9 ‘pass of Article 8 of the Constitution to local public high- laws for the maintenance of the roads and ways, required without special the local notice or local laws/ Legislature levy authorizes the a loсal purposes road contrary provisions limiting other of the Constitution Legislature levying taxes, in and we are not cited any provision case which has so construed this of the Consti- tution.” ap only when Chapter 382 would be effective
The fact that The tax would the rule. proved majority not alter vote does in said Legislature voters. As imposed by and not while Carlton, Trimmier 296 S.W. v. 116 Texas lаw, yet it Legislature delegate may to make not contingency operative upon certain enact a law to become people to be event, example, a upon vote a future as for constitutionally valid it would thereby. affected if this act is So levy a tax power to seem that would have approval, County, their citizens Harris without gasoline com or some other form tax on additional proceeds solely to modity County and sold in devote Harris purpose. rights way purchase other or for some constitutionally local law. effected This we think could not be necessarily heavy cost to We are unaware of the rights of purchase land for counties in the condemnation and areas, way freеways populous wide traffic arteries and others, County. Many problem peculiar this is not all, Illus- if not difficult burdens. are confronted with the same Legislature passed special trative of this same fact that Hidalgo Counties. laws of the Nothing character same Dallas logical any for this is shown which would afford basis accordingly the act law. hold enactment as local We principle down laid unconstitutional contravenes the because 3 of taxes must Article the Constitution pretermit levied laws. discussion of the We by respondent. points raised
Application is denied. *9 for writ of mandamus Opinion May 1956. delivered
ON REHEARING opinion of the Court. Mr. delivered the Justice Culver urged rehearing petitioner’s that: motion for it is holding erred in Act unconstitutional “The Court the entire contravening principle of Article Section 3 of thе Con- granting stitution, to Harris as Section of the Act condemnation, right ways acquire, in the limits villages, cities, incorporated is severable from the towns and parts Act and thence stands as effective valid legislation.” proceeding Attorney require
This a was mandamus to approve county proposed General certain which the bonds Legis- issue under the lature, 54th Acts of thе goes Consequently, 1955. the effect of our SO' decision legally far as to hold that and the the bonds cannot issued approve refusal of the these bonds upheld. question constitutionality as to the of Section 5 was question us nor before for decision foreclosed our opinion. rehearing motion is overruled.
Opinion July 11, delivered 1956. v. Paul L. Meaders Vasquez
Severo No. A-5356. May 23, Decided Rehearing overruled July 11, 1956. (291 926) S.W. 2d Series