Case Information

*1 . 304 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

Bonorebl* Btyaa 2. Xillllamr

city Attorney GBlveston, Texar

Deer 3irt

o ba lswrd, the used for puurpoarr t, sralusi*rly ior f th e l traot8, aro- lotr In said olty, Yrrrlorr and for rrouring h filling, or, to put it dit- s granted bf that Aot be wed otion with bonde Ot the aity whlah 06 Qriw to its rdoptlon?" The prrtlnent part sf I?. b. ez, Of thr Yorty-tirth reads to follmrr t Realas 3emloa, CsptloLt -

*AB AzOnd ChnQttr 36 th. AOt8 thr Rag&w 3e#rlon, of tb 89th Legialatura, thr *2 Honorable Brpan P. ~vllllamr, page .?g

aem% being AD. Aot entitled: ‘Att Sid the City of G&vcaton In elevating end rairr- fng such city so a.8 to proteot it trout oelaat- by donating and granting tous o~erflors to it the State rid vslorem taxes and a part or the oooupatlon and poll taxae aolleoted on property and from persons in Galveston County for 0 period Of teA Jr(lATCi, @ti to FrOVida tr p’3tlAlty tOl! th%ir ~~~~‘~~t”~~~,~t~~d~~~~~~~~~~~

-zziEirT m, a eo%Frlng~ *nerifiYiE~ . 3eotion 1 of the emendatosy r;ot rcsds aa follows t ‘“seotloa 1. TAet Chapter 3 of the Acts of the

Regular Session ot the 39th Leglals ture, be mend- ed so as to hereatter read ae follows m ‘Seotlon 1. TAat ror a pbrlod of forty yeara,

commolng with the riroal ye&z b&ginning September 1, 1903, end vrding September 1943, there be and there ore horeby tomted end wanted by the State or Tares to the City or Galveston net emOUnt money, 80 mob thereof ar ray n%ceaea%7, collected Prom the ,Collcuk~g taxes: (here the law enumeratea the various taxes donated) ( “Sactlon 2. (The mm es the prior law). (The Saw 4% tA% prior laN), “Section 3. “Station 4 l (TAe same as the prior law). “s6+otlon 5. The monev hereln and hereby grant-

ed and donsttd to the City of Galveeton Are beolared to be a trust fun6 <or tpe p?po~e.of flding the -City _ . . Of vet&n an8 ralaing o? the strcet8, avenues, aUey8, ridewalks and lots in said oi ty, above oalamitous and for ttsourlng and protecting overflow#, rruoh fill- * * * * (The reoalnder of thie aeotion is thr % ha in the prior Law).

Roonorable Bryan F. Xilliaa, page 43

You dll natr that Seotlo5 1 or the axcendatory Aof a.mnds not oJy Seation 1 of the Aot to be amended, that ia, Chapter 3 cf the Thirty-5lnth Leqlslature, but also, 15 3eo- tion 5 is round 80~4 eliqht to the u8e ohnngs with rererenoe 02 auoh granted end donated ruabe. l? Of the amenda- Section tory hot is the ezergtmoy olauae, *iah reode a8 tollowrr

“Tha faot tkat eerersl rsduotionr fn the State ad valorem tax rate during the Fact few years make it ror the City of Calrertoa impossible to meet its obligation6 05 thbre grade-raising bonds hera- tOfOre issued end mturlng annually orter September . 1938 Srd until 1946, UdlStJS the Sati city Or &ilT68- to reoeire aid rrom the State or Taxa@ tpn contlauee tar a period 0r Slve years, oreatos an energenoy end a5 Uperatlre pub110 nooossity t&t the ootetltutlon- al rub provldlcg that bills bo read on three roveral days shall be suspended, and euoh rule 18 therefore take fZfect sad be in W$?ended, and thiS hot S!&l roroe rmm and erttr ita passage, and It la. so ea- aoted”.

Before yrooccdl5g to analyze thk foregclng quoted sectlona or the lew we think it well to quote Seotloa S ot Charter 3, Xata of the Rcmlar 3eseion of the Thirty-ninth to tke extent cecesaary to ohm the ohange brought about by the amndatory Act. 3otd seotlon reada, in put, ar f ollowrt ‘S

-For purpose of aiding the City of Galveston in paying the interest and sinking D.md w n5 imsue or issues of bon&a haretoi’ore lsaued onif-to ~Wad,p~OoadeOr whloh hdv~and~e used exaluuively ror the elevation end reisl5g of the streets, aveouos, alleys, sidewalks end lot8 in s&id oitp above oalamltous overflows afid for ee- aqrlng and proteatlng euoh fllllne”.

;%I dean it proper to state ia the bejnning that the paramount pzpooe or 3.11 rules statutory oonstruotlon Is *4 Honorable Bryan F; ‘GIlllams, page #4

to give effect to the legislative purpose. 3y referring to the aaption, above quoted, we find tha.t the purpose of the amendatory dot 1s to extend the provlslota or the prior Aot.

The Act mended provided for the donation and grant OS tax66 to pay bonds heretofore ls3ued end ti.hioh thereafter might br 1s med. Obviously, the grant in said Xot oontemplated the payment of bonds whloh might be Isstied eubeequent to the 6f- feotlva date of the Act, but oertainly wlthln the parlod QOY- ered by the grant.. Therefore, the oaptlon of the cmendatory Aat, providing for the extenalon th$ provlelone of Aot axended, Iter~ely provided a turther donation of tare6 to pay.

bonds ,Issued pursuant to We prior Act, and we think the aon- dltlone ettaahing to the use of euoh funds, as indloatad by the ohange in Sf+ctIon 5, legally cornea wIthin the.term oi the Aat. In 106 A. L.-R* 789, ati flnd the follcwlng expres- aion, which in our opinion supports this oonolusIonr

*An Aot ‘to amend another Aot, ronner eettlng out the latter’s title, is as coreprehensIve as the Aot mended, and nng provfslon which might have been inserted lnthe original Aat say be Inoorporated In the amendatery .hat wl thout violating the aonstitution- al provlslon that the subject of ti Aat ahall be 6x- pressed in the title”.

It occurs to us that any other oonatruotion would en- danger the entire Aat. Ii the oondltlon eppearlng in Seotlon 5 Is held to so material as to be violative of the oonstltu- that the title tlonal provision of an hot shall express the the Aat In its subject treated therein, entirety would be jeep- ardlzed by reason of the failure of the aaptlon of the emenda- tory Aot to give notice of such ahange. It will be observed that the amsndatorp Agt, that la, H. B, 22 of the Forty-rifth does not have a aaoinge oleuse such as would per- mitt&e striking down of sections, phraaee or words, and leave the reminder cf the Aot &,andlng aa a valid and errsatire law. in answer your first question, we hold that the Therefore, ohangs es indicated in Section 5 is npt, material, and 1~ our opinion fuals granted by this aan be used Only for the retirement of bonds issued prior to ita adoption.

Ponorabla Bryea P. XIllIam, pnre &3

Relative to pour 98CO& question, YOU tsV8 Set out the following taotsi

The City of PUolrretoa now has oUtstend*ng two series or boada, 0~8 being desifpated as Wade-XaIsIng, FI11lng and Drainage Bonds oi 1923, whloh W8r9 issued In 1924 in the aagre- @At8 prinoipal amount cdl $1,250,000 for the purp0989 as stated in them and In the ordInallo authorizing them "of filling, grad- In& raising, paving, drainlog end otherwise pr#.ectlng and Im- proviny the streets, avenues, alleys, public grouads, bloolcs, arid lots in said city, in the are8 17ing north of the outlots southern of Av8nU8 J, btd west of east line 40th lice to the olty lIl&sm, and the Cth8r being Street erd 8Xt8ndhg desI@atsd Oznde-Salsing, Filling and DrsInap Bonds of 1925, issued in 1923, in the aggregate amount of ?2,OCO,OOO for the purpose as stated in them ati in the ordinance authorizing then, "of 81evating and raising the streets, avenues, alleys, sids- walks anb lots in said olfq, above oalamitous ovsrflow9 and ior seourlag and protecting suoh flllln&‘.

Funds r808iV8d by the City of Galveston under the hot,8 of the Le&91Qtur8 have been atFlied to sagneat of prinofQa1 of a&¶ interest on bends of the 1ast~;=entIoned series as thy rns- a0nd9 of that series kow!outstanding are subjaot ra- hired. dezptlon and the city has oa hcnd funde reaalved under the State Aid ilot, eSOQ8 detailed, EJUffiOiOEt to r8tk8 1)343,000 Or those bonds which it hss called for r8deslptIOn and ~111 retire oa June 1, 1941, ml should receive from such soiirce suftlcleat funds to retire the entire balanae of that series on D9Omb8r 1, to do. Your question 1s: Xhether or 1941, which it expeots not after the lT8ti.&%M8nt OS thee8 bonds the City Of ti1VWtOn msy continue to receive the tax89 collected prior to 1943 and apply the~funds so reC8lY8d'upon the payment OS the bonds oi the series first above jkntlOn@d, that 18, Grade-Relelng, Fllllng and D&.na58 DocdS of 1923.

&ferring to the Lot it will bs soen that the funds made aytillable are granted end donated Sor the purpose of aid- ing the City of Galveston In peylng the lnt8r99t and 9inklw fiti upan en isme of bond8 h8retofOr8 the FrOCeed8 of ls8ti8d, which bonds have been used eXClUSiV8ly ror elevation CM 9V8flU89, Q118yS, sidewalks slid lots 1s raising of th8 StWet9,

.-

Ecnorcble E17oc T. T~illiWi$, ,3cg8 #6

ssln olty, Rbove calz~tous overflow9 ac3 Zor sacurln~ snd ~roteatlzi~ auoh fllllng. The Only 1itittatiOn aFF88rIQJ in this ~tI8CtiOn Cf hot is that the bCndS ShCiU. have h8r8tO- Soro bcec Issued and the proceeds tkereof used exaluslvely iOr the lS.W>OS89 emzerated therein. It iS tI'U8 thCt th8 emorgenay clause r8fCrs to obll.~otlocs tnaturlnl; botweoa the years 1938 and 1946, but the well-settled law on the subjest of ezersency clauses Is to tho effect that suah alaus 93e UOt added iOr th8 puS$Ose Ci alarltylng deakrlng the ln- t8ntiOn Of th8 x8.~;8lat~8 DOr t0 8~leiE the eQr899 leti- guage ussd. fn the CD38 Of Y-X-T “Ft. CO. v. Thoaaaoa, 280 8. i’i, 325, the covrt mid:

“.?arg;enoy clawes are added to Set forth reason5 for susrsnsloa ot rule requiring read- ing on three separate degs cod to put the bill Into lmedlst8 erfect, not to declare la&la- t$va lntcnt".

Generally, an erzar@nojr olauve 1s rc@rded as Iasuf- tialeat if there 1s no inat event or state or condition of sftSIr8 aentloned which the Legislature detkmlnes creates see 25 R. c. L. 601. r8 think the proper ooa- _ assrgenay. elusion to b8 t&t tke danetion oovered by E. B. 22, aupra, was lctended to pay cl1 bonds 1ssusS ~rlor to the efitatlve date of tho aresedntory Aet, the prooeeds o: -vhlch had bdcn used 9X131USiV81y in the :..ot, It cnUntrat9d iOr the FUr~OSSS appcsrr tht the issue or sorles of 1923 provided puqoses not oontenplatod by the tsx donntlon act, ?nd ii such pro- aseds were u38d for ~rposcs cthe? than tkO58 8nWi8ratteb ln the Act the bo&ls could not bc prop8rly pcld nith tax89 donsted by said Aot, but in mr oplnlon such funds oould be the bonfis to the extant the proceeds thereof used to retire were ap:Fllc?d tward .thc aaconpllSlunent of the &urposes enu- m8rfit8d ll3 the ilot. Ii, a3 a mttor of fact, the prOC88dS of this isa were nsed for ~Ur_DOSOS contmp~stod bg the Act, therl It 19 our oplnlon thet all 13 sold doaoted funds UY be used to pay the lntcrest r&d oiniAzg fund requlraor,entr OS suoh lesue.

Tru3tlnc, that tie fOra+pin% aatlsfoatorI~y IIcsXers your bl&l7, I?8 W8

Very truly ycurs