Case Information
*1 THE ATTORNEY GENERAL OFTEXAS Awmrx~. -
Gerald C. Harm
-0-
Hr.~ 0, A. Eight
Chief A.ocountant
Board of County and Dfrtrlct Road Indebtedness
Austin, Texas
Dear Sir: lumber O-1293
Open : Constrnotlon ef cortaln protirions Howe Bill j&M, ssed by the Fortr-sixth Le i rlaturo, Bogular gerrion,~~l Fi r
Uo kare your letter of Augupt 16, 1939, in rrhlsh you ask our oplnlon of soteral questions vdxlch have arisen oat of the above captioned bill which outlines the proordure of the bard in the administration of that Act.
Under dato ef.Juue 9, ~1939, in our 0 Inion lo. O-908 efthlr bi 1. It uas our we deterrlned the constitutionalit opinion that.the purpose d this b 11 as not violative of I Art&lo 8, Section 7, or Article 3, Section 51 of our Cod- but insofar a. thd bill before u8 at that .titution, time attempted, g rlor to the hill E" payment of all obligations al- rticipat on, to devote the swplus ready eligi le for accumulated in the ounty and Road District Highwaytund lblr such par to the aymqnt of Obligation. made ell en for the ticipet 9 fir8t tim by' such % ill and other purposes, was unconstitutlonel and would constitute a direr- sion of a 8 ecial fund in violation the Constitution.
House Bill #b 8 as finally pasrod by the Legislature and signed by the dovernor in our opinion has satisfactorily removed the provision &o which we sxce~ted.
We shall take u your question8 in the order in tiich they are presented, your P lrst question being -- *2 Mr. G. AL. Hight, page #2
wSection 5 of the bill, after allocating one-fourth of the occupation or exaire tax on gasoll8r to the oredit the available free school fund, provides that one-fourth shall to the credit of the fund go to and be placed to be known as *County and goad Mstrlct High- way Fund’ 8ubject to the visions 8nd llml- tations of Section 3 of t is Act. Will you $” please advise u8 what the limitations referred to are and what effect such limitations 'if any, would be upon the use to be made 08 the County and goad Distriat Hi hway Fund and the operations the Board of ounty and Dlstriat Road Indek&ednessPm
By reference to Section 3 we find that It expres$ly deals with duties df the Highway Department and directs developent of highways and the maintenance thereof “from.
funds available the State Highway Department.” Section 5 divides the proaeeds of the occupation tax on the business of selling gasoline as follows: One-fourth to the Available School F’und, one-fourth to the County and Road District kilgh- way Fund subject to the revisions and limitations of See- tion 3 08 this Act, and g t e remainder to the State Highway A careful reading of Section 3 the Act re- Department.
reals no limitations, whatever upon the one-fourth allo- aated to the County 8nd Road Dkriot Highway Fund. Under the rules of etatutory constrB?tlon it has been decided.
that a statute or a provision::thereof should not be given construction rendering it meaningless, if the langtmge aan 71' otherwise be construed. See City of Hopston Y.’ Allred S. W. (261 2510 Galveston H & Ii. Bi 00; t.Anderson, S. W. 998; Stoipe v. Karren, 191 S. W. 600; Texas k Pacific Ry. Co. v. Taplo+, 118 S. W . 1097. It is. obvious from the reading of Section 3 that there are no limitations at all relative to the one-fourth of the oocupation or excise tax that is ‘allocated to the Board of County and District goad Indebtedness under Section 5 of the Act, and it is there- fore our conclusion that the llmitatlon imposed in Section 5 u n the funds allocated to the County end Road Metrict Hig r way Fund Is meaningless. To 8o hold does not in anywise Impair the provision of the Act.
Mr. G. A. Right, page #3
Tour second question is follows: “Should this Board now include In the credit allowed to each oouuty the total amount aid by such county for the years 1933 to 1937 !&clualve on their debt service, or should this bard limit the oredit to amounts paid by each county on issuer now outstanding and pay such credits to the counties over the life period of out- standing bonds? In this oonnection you arc re- .ferredto Conference Opinion No. 3021 rendered by Honorable William IcCraw, Attorney General, on Au@& 11, 1938.”
In re ly to your second question we direct your at- tention to the x claration of policy contained in House Bill 6&3, Section 1, wherein It providear
“By reason of the foregoing, a heavy and undue burden vms placed and still re8te upon the aounties and defined road district and their inhabitants, and both a legal and moral obligation rest upon the State to compensate and reimburse such counties and defined road distrfcts, which, as aforesaid, shave performed functions resting upon the State and have paid ex enses which were and are properly State expenses, al E for the use and benefft of the State, and to the extent provided herein that the State provide funds for the .further construction of roads ;;;.esignated as a part of the State Highway Sys- Thi. ovision Is preceded by others which call at- tention to the act that the State recognires and declares F
that all highways now or heretofore constitutlag part of the system of State highways and that all roads not conatl- tuting a rt of such system which have been constructed in whole or n part from the proceeds of bonds,,warrants or p” other evidence of indebtedness issued by counties and de- of the State Texas under the la- fined road district8 authorislng the same, have been and are anh will continue to the State Texas at large and have to be beneficial *4 Mr. 0. A. Eight, page #4
contributed to the general welfare, settlement and develop- ment of the entire State. hanifestly It was Intended that the counties or defined road dlstriatr should be corn ensated for money expended in the construction of roads whit % by the declaration of policy have oontrlbuted to the general welfare, settloment and development of the entire State. We, there- fore, answer your question as follows:
In our opinion this Board should Include in the aredit allowed to each county the total 8mount paid by such county for the years 1933 to 1937, Inclusive, on their debt service on issues now outstanding or issues which may have been out- standing at the time of the enactment of Chapter 13, Acts of the Third Called Session of the Forty-second Legislature of 1932. Ye think that from the language of the bill ltsel!
that Is, House Bill 688, as found In paragraph 2, subsection (h)< Section 6, which reads as follows: after the passage of WAS soon practicable
this Act and before the Lateral Read Account is allocated to the counties, the Board 8hall de- termine the amount each aount and each defined ~~~~~~r~v~:o~i~is~~he Third Called Session of the Forty-Second Legis- lature, as amended, toward its debt serviae u n bonds which at the time payment were ligi la go to participate in the County and Road Mstrict gighway F’und.”
it Is plain that the Intention of the Legislature is that the counties and defined road districts be full reimbursed for issue8 for J ebt service durd all aoney8expended on eligible ing the years 1933 to 1937, irrespective of whether or not there are issues now outstanding. We think the declaration of policy is clear on this point.
The third question you have submitted reads as fol- low. :
?In connection with the deductions of advance- ments~made by the State from the amount credited to the counties as provided, is it intended by *5 Mr. G. A. Ught, page #S
the Act that such deduction be made where possible overthe life perled of the bonds of each county affected, as we are now doing under authority of the above quoted l pinlon?a It mast be borne in mind that the express basic pur- of this law is to lift the burden of ad valorem taxes, the eit$9eps of the vprlous counties- and defined-read _ - - which may have Often uaed for con8truCtlon of districts State higl&ys or fer the retirement of obligations incurred in the construction of highways. In our opinion there Is uple authorit under this law for the Board of County and Dldrlct Road L debtedna. to make .uch deduction over the life period of the bonds. And insofar as Opinion No. 3021, above mentioned, uthorises and directs the payment of sums. due the various counties * the form of increased percentages. of rtieipation, ue readopt same and further state that any ret ga od thus designed to accomplish the pur wit ii in the authority. ose for which this law was passed would in our opinion be
ef the Board. Under the Attorne General’s opinion above aited, your Board undertook a I locate the .o-call~ed .ur lua by my of Increased percentage. of participation on l ligi 1 le issue. and this, we think, was proper a plicatloo and will effectively accomplish the pur ose of the LW. You are there- fore, advised that in our opln on the Board should continue the method adopted pursuant to the authorization canferred by law and as interpreted by Section 5 of 0 inion No. 3021, rendered by the Attorney General, August 11, E 938.
The fourth question you submit is as follows: “1s it the duty of the Board to audit or other- wise verify the records expenditures er obll- gations of each county to determine the amount of bonds, warrants or other legal obligations issued prior to January 2, 1939, the proceeds of which were actually expended in acquiring rights-of-way for State designated highways?” To answer this question we rrfer to paragraph 2 under subsection (h) , Section 4 of the let, whiah reads, in part, as follow. :
Mr. 0. A. Sight, page #6
‘The moneys allocated to each county from the Lateral Road Account ebhell be used by aid county, r paying the~ar~~atere8t and rink- apart sufficient money to pay off and dlecharge 8aid outstandin obligations incurred for right- of-way acqulsit f on.”
In this we find doclaratlon of legislatlto Intent and to properly effectuate this Intention we arc of the opinion that It till be necessary the Board to adopt the for same method followed in the matter of recording itors of in- incurred in construatlon of highways which debtedness ated as a part of the State Highway Sydea, have been desi that zir, the r ght-ef-way obligation should be handlod k? In like manner as the presently “eli lble obllgatlona~. There- fore, it is .our opinion that it w ‘I 11 be the duty of tho Board to audit or otherwise verify the record of expendi- of each county determine the amount tures or obligations of money aotually expended in acquiring rights-of-way ,fw State designated highway8 in order to carry out the mandate of this provision of the Act.
Ye quote here your fifth question, which reads as follows:
mt are the Board’s dutloa tho refund- ing egent of each county.as provided in the second paragraph of subsection (I) of Section 6 and *hat are the limitations on refunding hgible and ineligible Indebtedness under this subeectiont~
We think that in order to properly interpret the meaning this provlaion of the bw wherein the object or *7 Mr. G. A. Hi&t, page #7 lain, it urpoae of the provision of the statute is not t nder thd ecomes necessary to read the entire section.
rule of &atutory conetruction, all the language used rrhould be taken Into consideration when l ndoavoring to.
ascertain the object or urpose, and in this connection su 1 section (i) of Section 6 begins it must be noted that as follows:
*The county ~ommi88ioner8~ court ef any county may exercise the authority now.conferred by law to issue refunding obligations for the purpose of' refunding an li ible debt of the count any defi.nea-%~~~~i~~%
ligation. when.validly issued shall be eligible obligations within the meaning of this Act, if mid Board County and District I&ad Indebted- ness shall approve the maturities of said refund- ing obligations and the rate of interest borne by them.,’
Then pas&g over to the last sentence of the seconds parae graph of the same section, we find:
'All actual expenses inourred in the refund- ing an elinible indebtedness including the cost of proceedings, printing fegal approval and interest adjustment, shali be chargeable against the moneys theretofore or thereafter collected from ad valorem taxes, or at the op tion of the commisslonerr~ conrt conduating such refunding, may be paid from \any other wne under z its control and available for the purpose. We have underscored the term neligible lndebtednossw for the purpose of strengthening our aonclueion,that this section refers to pnd contemplates only that mch items of Indebtedness shall be submitted to the Board for ap roval We refer you toSect on 2 of E
rior a refunding thereof. R ouse Bill 688, which contains the definition of term8 and expressions used throughout the Act, and find there -- "the expression teligible obligation' as used in this Act shall mean obligations the proceeds of which were actually ex-
ended on State highways." We think the expression "eli i- f le indebtedness" synonymous with the expression "ellgib e *8 Hr. 0. A. Eight, page #8
obligationw and therefore comes within this definition. We are of the opinion that the Board’s dutioa’as to the refunding assignment rovided in the.second paragraph of (I) of Soa Ion 6 are limltod to the refunding subsection e obligations as defined .b this Act, and that of eligible such duties do not extend to and lnc 1 ude any 8o-called ineligible indebtedness .whioh may or may not rticipate in the excess funds provided herein to be are % ited to the account to be known as the Lateral Road’ Account.
Yhe last ragnph of subsection (L) makes the Board of County and Mstr r ct Road Indebtedness the refunding agent ,of each count md as such agent is directed to cooperate with the come rsloners’ court of each county in effecting the neaossary refunding of.each issue of bonds, and that the Board shall prepare the necessary refunding order the commlrsion~rs~ court, prepare the proceedings and act In an to the sad that the u-, advisory and su rvisory capacit pense of refund any lssuo of ends may be reduced to a i f& iinirun. gaving determined in the preaedin paragra h that the duties of the Board in the matter of m f unding o bonds f extend only to weligible i88uesw, it necessarily follows the duties 8Ileaated In this paragra h of 8ubsection that (I) oxtend to only the liglble issues. E t Is our conclusion the language of this seation Is merely directory and. that that the Board shall bo required to act in that capacity only as a means of reducing the expense of refunding any Issue of such bonds to a mlnimum. Inasmuch as this same paragraph requires that any item af expense incurred in connection with a refunding must have the affirmative approval of the Board before being Incurred, we think that in their advieory and - supervisory capacity, they could under this law, if deemed expedient, prepare the necessary refunding orders, roceed- lngs and perform other duties incident to the camp etion of P a re i undiag any issue of such bonds.
You are therefore, advised that in our opinion your duties euch re!unding agent with respect to the pre tion of proceeding8 and refunding order,‘would rest wit %““- in the discretion of the Board and would not become mandatory except in the event the prospective aosts of such proceedings by other agencies appear excessive.
Ur. 8, A. Hight, page #9
Your sixth question reads foollowe: ‘1yill you lease further advise the Board to thorn or to w! at agency the expense of the Board for performing the rrervices to the coun- ties in the refundi of the county issues as directed b the rov sions of this subsration shall be egargod!w ’ any l ense lnuorrod in the refund- In our o inion,
ing of any subh ob lgation Is pr arily an % &nse su division of the county, dofined road dirtriot or political ro- posing such refundi 8nd should, therefore, be charge 8 to paragraph of sobsection, (i) pro- such agencies.. The% et vides, in pa&., that :
“All actual ex enses incurred In the refund- ing of an eligible E ndebtedaess including the cost of proceedings, printing, Algal a proval and Interest adjuetment, shall be chargeab e E against the monoys theretofore or thereafter collected frem ad valorem taxes, or at the option of tho commlrsloners~ court conducting 8ueh refunding, may be paid from 8ny other money nnder its con- trol and available the purpose.” We think this alearly indicates the Legislature’s intention that the county, defined road dletrict or political subdivision 8hall bear the upenee of any such refunding, and
ou muld properly char e any such expense accruing to the !io ard in aonnectlon wit t .uch refunding to the county de- fined road district or political rubdivision instlga& such refunding progr8&
We quote hero your seventh question: swan the several oounty commissloners~ courts employ on salary or contract basis, subject to the oiflrmatlve approval of this Board, one or more persons to assist in the refunding of such indebtedness and pay for .uch service~~~,t$ manner provided in Act for the r re;st expenses refunding eligib indebted- *10 ‘.
Mr. 0. A. Bight, page #lO It mwt be borne in mind that this law requires that
all actual cobts of refunding eligible indebtedness be mb- Bitted to the Board for l p roval before such cost8 are in- curred. It then follows t L t the Board must pa88 upon all suoh items of expense and if In its opinion certain items * of expense sought to 6e incurred are considered unnecessary, it should disapprove. thei. The law states that only the actual xpense of refunding, which includes cost of pro- ceedi 8hall Y 8, printing, le al approval and Interest adjustnenta,
e approved. Thfs itemiaation of expense is not a’ thereon but Is suggestive of that which under llmitatlon ordinary conditions should constitute actual expenses. The Legislature, of aourse, contemplated that certain othor costs right arise in connection with a refunding and could, be reasonably classified as necessary or actual refunding
ense. Consequently, it delegated to the Board the duty power of determlniag the necessity for such costs by re uirlng that a11antlalpated expense of refunding ellglble ln%ebtednerr be submitted to the Board approval in ad-’ vunce of incurring same. ho appeal has been protided in the event the Board disapproves an item expense; hence ~~~8t conclude that the Board’s ruling thereon *ould be
The Board is vested with the fnrther power to re- fund &h debt itself md charge the expense thereof to the oounty defined rpad dirtriot or political subdivl8lon in- stigatlng such refunding. ‘fhy+gg;~ :~d~~~~~~~Qefv to hold the cost of refunding midmum.
Consistent with the foregoing conclusion the Board would be tequired to detsmine whether or not then anploy- ment of a person or persons to “asside in refunding would be a necessary or actual expense Incident thereto, asp contemplated by the Legislature. The word uassi8tw, appearing in your questions, has a very broad and inde- terminate meaning, but as llsecj here it must 8ean “in ald of”, ‘being of service” or “he1 ing”. Such terms are llke- wise indefinites hence it must P ie with the Board to de- termine the necessity for such em loyment and whether or not it is indispensable P in accomp ishing a refunding. The
fasts each 8uch refunding must ultimately define the course the hoard is to follow in approving or disapproving
r
nr. G. A. Uht, page Pl rsons to assist a
the costs of employing a person or E" county defined road distrlot or po itical subdivision in refunding Its eligible indebtedness.
We are unabli to flnd in the Act l n.y mention of the rsons on a salary or contract basis for the employment .of r purpose ass rtlng in the refUnding of such indebtedness as may bo sought to be refunded, and we think that under the law a commissioners' court has the power and authority to contract the servicer of export8 on questions of finan- clng and refinancing in the r8me manner as they now have au- thority to retain architects attorneys, auditor8 or en-
lnoers but we think that the compensation for such serviceo:: & this 'eonnoctlon must, under the law, be submitted to the rior to incurring came. If then, In Board for a proval the dimeret .that such cost on of t e Board it Is detewined is not neaersary or actuai aoet contemplated by this law, we think the Board should properly disapprove such Item expense*
Very truly yours ATTORHEiYGW3RkLOF TEXAS By /s Clarence B. Crowe C rence E. Crowe Assistant APFBOVED OCT. 7, 1939
/sf V. ?. 'Moore
FIBST A&ISTAllT
ATTOFNEY GElsERAL
CRC-.