Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GENALD C. MANN ATTORNEY GENEAL
Honorable R. A. Barton County Attorney Calhoun County Port Lavaca, Texas
Dear Sir:
Opinion Number 0-6432 Re: can the City of Port Lavaca expand special funds for a different purpose from that submitted to the voters?
We are in receipt of your letter of recent date, read- ing as follows:
"I am writing you at the request of the mayor and the city commission of the city of Port Lavaca, Texas, in order that we may have your opinion as to the equality of a proposal to expend some fifty thousand dollars of the funds now on hand in the city. Depository which were derived from the sale of bonds voted by the city under the provisions of R.B. No. 7 as passed at the regular session of the 47th Legislature and known as the Port Lavaca Sea Wall Aq.
"You will recall that your Department has here- tofore rendered an opinion No. 0-4117 as to the con- stitutionality of such act in which it was held:
"That House Bill No. 7 supra, wherein it seeks to remit taxes to construct seawalls or breakwaters is not violative of the constitution of Texas, but
*2 Honorable R. A. Barton, page 42 that it is unconstitutional in so far as it seeks to remit taxes to construct Harbors. We further hold that the striking of the word "HARBORS" from the bill does not invalidate the balance thereof.'
"The city Commission is determined to abide by your opinion as to the legal use of these funds and it is for that reason that we request that you reconsider that part of your opinion No. 0-4117 on page 3 in which you state:
"We are of the opinion that by no stretch of the imagination could the term "Harbor" be included within the meaning of the words, "Soawall and Breakwaters."
"In order that you may understand the basis of our request and the need that faces the Commission let us present these facts. None of the moneye accruing from the sale of these bonds, though voted in 1941 have been expended, because we felt that the construction of our much needed soawall here in front of town might impede the war efforts as it would take labor and critical materials, so we are investing such funds in ear bonds. Now the U. S. Engineers of the Department of War have determined the need for a storm Harbor for the protection of Government vessels and those supplying the army camps at Indianola, Matagorda Island and Matagorda Peninsula.
"The plans are all complete for this structure and the U. S. Engineers now request that the city expend some fifty thousand dollars in the project. The location of the proposed storm harbor of refuge is about one mile south of the city limits of the city of Port Levaca. We have explained that your prior opinion is binding upon us but they present that the harbor will be actually dredged with Federal funds so that the city will not be expending its funds from the construction of a harbor.
*3
Nonorable R. A. Farton, page 83
but in protecting the mouth of the harbor by the construction of necessary breakwaters and by the building of wharves, dooks and tie up moorings for the protection of shipping. We desire to aid the war efforts if possible by aiding in the protection of coveranent property and you can help us dete:mine our course of action by answering the following quastion:
Replying to the foregoing, you are advised that we adhero to the opinion expressed by us in Spinion 80. 0-1117 to the effect that the term "farbor" is not included within the meaning of the words "Beavalls and Breakwaters".
An examination of the proceedings authorizing the issuance of city of Port Lavaea Beavall and Breakwater Bonds in 1041. E1ecloser that the city Commission made tue following atetement in the ollection order, notice of wlection and ordinance authorizing the issuance of the bonds: "For the purpose
*4
Honorable R. A. Barton, page 84
of constructing, repairing and improving seawalls and breakwaters to protect the city of fort lavaca from contimuing and recurring calamitous overflows, which improvements are, in the opinion of the city Commission, essential to adequate protection of said city. This statement constituted a pledge to the voters that the money derived from the sale of the bonds would be expended to protect the city of fort lavaca. In the case of strength v. Black, 246 S. 8. 73, the supreme court held that after designating roads to be improved prior to road bond olection, comsiesioners' court could not onan'g such designation after the olection. In our opinion the construction of breakwaters, wharves and docks to protect a harbor a mile south of the city limits 10 a different purpose from the one submitted to the voters. Again, the purpose as submitted is entirely consistent with the language contained in Article 11, Sootion 6 of the Constitution, whio authorizes the Legislature to add by donation . . . the construction of seawalls and breakwaters, but, as hold in our opinion No. 0-4117, does not authorize such donation for the construction and improvement of harbors.
81 th reference to your second question, there is no authority for a city operating under the general law to extend its limits, except that contained in Article 974, which authorizes the addition of territory adjoining the limite of any city to the extent of one-half mile in width. See city of Cladowater v. State ex rol. Walker, 137 S. 2. (2d) 641. Even if the city of fort lavaca could extend its boundaries, we are of the opinion that the situation would not be different, since the purpose for which the bonds were voted clearly contemplated the construction of seawalls and breakwaters to protect the city of fort lavaca as it existed at the time the olection was held.
As indicated above, we answer all three of your questions in the negative.
Very truly yours ATTORSEY GENERAL OF TEXAS By Roth Slloson C. F. Gibson
Assistant APPROVED OPINION COMMITTEE n. B6H7.
NOTES
"1. Can the city of Port Lavaea expend soawall funds derived under House 8111 Jo, 7 on a project, to be situate approximately a mile from the existing city limite, to be a harbor of refuge for boats, on city acquired property, there such structure will not protect existing property now within the city limitat "2. would such expenditure be legal if said property is taken into the city lualis, alther by a vote of the people or by any other mumer authorized by law? "3. Can the city of Port Lavaea expand such geavall funds to aid the Federal Government in the construction of a storm harbor, if such funds are used only for breakwaters, wharves, and dooks? "He will appreciate your serious consideration of both the law and the necessity of action with which we are confronted, We have no other funds and our tax limit is exhausted."