AURTIN 11.I'Exas
PRICE DANIEL
ATTORNEY GENERAL
September 20, 1949
xou. UB. r. PO01 OpllIloax80.v-909.
COuleJ Attoraey
Ylnkler CQuntiJ Re: The constitutionality
Kermit, Texas of 5.B. 463, 5lst Leg-
islature, relative to
purchaaseof an airport
la counti*s harlu$ a
6141 to 6150 poptia-
Dear Sir: tion.
Referanise i* tie to your recent request which
r8ads In part au follew~:
"The undersignedrerpnctfullyre uests
ain oplnloafrom our office es to whe her
Senate Bill Ro. 7163(Art. 1581d, R.C ! ) as
parsod by the 51st Leglslaturet, Is v&i and
unconstltutloarlas a local or special law
regulating the affabs of oomtlem, con-
trary to the provisionsOS Article 3, Sea-
tlon 56 of our state oonatltution.H
Section 1 of Senate Bill Ro. 463, Acts of the
fart Legislature,Regular Rasslon, 1949, is as .rdmfs:
"5ection 1. All counties la this state
having a populat1enof not less thaq slx
thousand one hundred fortyous (6,141) and
not wro than sk~thousand one hundred iii-
ty (6,150) lohabltgts aacordlug to the lalrt
precedlngFederal Census, and having an as-
sessed valuatioa of clotloss than Twenty-
one Willloa ($21,000,000.00)Dollars accord-
lug to the last approved tax rolls, are here-
b7 authorlsed to acquire by purchase or
otherwise an airport not to exceed six hun-
dred forty (640) acrea in area to be locat-
ed not wre then five (5) riles from the
heaviest populated are&In the county.”
The populationof Uimklor County is 6,141 accdkdiig to
the last precedl Federal Census and Winkler Couaty's
tax valuation Is "041,284,474according to the 1948 tax
Bon. Wm. B. Pool, page 2 (V-909)
rolls. According to the la,atpreceding Federal Ceusus
Winkler County 1s the only county in this State falling
within the above classification.
Section 56 of Article III of the Comtitutioa
of Texas provides In part as follows:
"The Legislatureshall not, except as
otherwise provided In this Constitution,
pass any local or special laws, . D . re-
gulating the affairs of counties, cities,
towns, wards or school districts; 0 . S
creating offices or prescribingthe powers
and duties of officers, in counties, cities,
towns, election or school districts; . o .'
We quote the followlug from our Opinion Ho,
O-2221, which ,oplalonwas upheld by 8 Texas Court of
Civil A peals in the case of Oakley v. Kent, 181 S.W.26
919 (19&4) :
"A law which applies ouly to a part of
a uatural class of persons or things must
predicate Its Inclusion of the part and ex-
clusion of the balance upon characteristics
peculiar to the part, which, consideringthe
objects and purposes of the law, afford rea-
sonable ground for restrictingthe appllca-
tlon of the law'to the part S Classlflcatfon
muat be reasoueble and uatural, not arbitrary
and capricious. Arbitrary desiguationis not
classlflcatlou. The vice of local or special
laws Is that they rest on arbitrary des~lgna-
tlon; that they do not embrace and affect all
of the class to which they are uaturallg re-
lated."
Ih County of Bexar v. Tyuan,l28 Tex. 223, 97
S.W.26 467 (l-6) the Suprenm Courtof Texas announced
the following pr&lple which controls the armtterhere-
in:
'NotwithstaudlngIt Is true that the
Legislaturemy classify counties upon 8
basis of population for the purpose of flx-
lng compensationof couutg aud precinct of-
ficers, yet lu doing so the classlflcatloa
must be based upou a real dlstluction,aud
muat not be arbitrary or a device to give
HQP. wk. r. Pool, page 3 (v-909)
what In substaoce a local or special law
is
the form of a general law."
We quote the followlug from 0akl.e~v. Kent.
supra :
"Point 2 challenges said ruling of the
trial oourt on the eploundthat the bill Is
wholLy unconstltutloualIn that Sec. 3 there-
of, &aVlag reference to the employmentand
paymsnt of a deputy arsessor-collectorof
t-es, applies only to counties havlug a,
populationof 140,000 to 220,000 Inhabitants,
accordlag to the 1940 Federal census, ao that
811 ether counties are exxeluded and Jeffer-
son County only ooms within such provision,
amd so the provision exaludss counties of
leaser or greater population from employment
and paying a deputy assessor-collectorof
taxes, and for such reasons Sec. 3 1s arbi-
trary and dlscrlmlnatoryand Is but a local
or sp@clal law paesed under the guise of a
general statute aad violates Art. 3, Sec.
56 of tlao fjt*te Constitutha, vtirnon’aAnn.
St., forbidding the Legislatureto pass any
law regulating the affairs of any such COUP-
ty, craatlng offices oilpr*sc*$@,@gtk+ pew-
er or duties of oiflcem In eWtitlb8.
"Point 3 challenges the court's action
in giving the peremptory Instructionand re-
fusing to enjoin the county treasurer and
county auditor of Jefferson County from is-
suing, registeringand paying the salary of
the purchaslugagent for said couaty accord-
1116to the ~ovlslons of 3s~. 4 (a) of said
blll, because the bill Is unconstitutional
In that &K.. 4 (a), having reference to the
creation and payment of a county purchasing
a&sat, &p&lea to the 1940 Federal census so
tbst s&1 &her oouatles are exxalnded and
Jsffarsoa:~Gounty only aoma withha such pro-
via@ns and so counties of lesser or greater
populatiousare not permitted to exercise
the power of appointinga purchasinga eat.
That by mason of such situation 3ec. t (a)
Is arbitrary and discrlalnatoryand but a
looal or s#ecial law pasred under the guise
ef the general statute and violative of AI%.
Bon. urn.E. Pool, page 4 (V-909)
III, Sec. 56, forbiddingthe Legislature
passing any such law regulatingthe affairs
of,any such county, creating offices or pre-
scrlblng the powers or duties of the offl-
cers la counties . . .
"f&cause populationas a basis for
classlfleatlonhas been sustalued by the
courts In respect to legislationon certain
subjects, It has been assumed, erroneously,
that populationbrackets will serve la all
Instances to avoid the condemnationof the
Constitution. This mistaken assumption pro-
ceeds from a failure to note that population
has been sustainedas a basis for classlfl-
cation only in those Instanceswhere It bore
a reasonable relation to the objects and pur-
poses of the law and was founded upon raMon-
al difference In the necessitiesor conditions
of the groups subjected to different laws.~
Where it has been determined that, conslder-
lag the objects and purposes of the law, dlf-
ferences in populationafford no retlonal ba-
sis for dlscrlmlnatingbetween groups of the
same natural class, classlflcatlonon the ba-
sis of populationhas been termed arbitrary
selection,and the law has been held to be
special and local."
We quote the following from Miller v. El Pas0
County, 136 Tex. 370, 150 S,W,2d 1000 m41) :
“The peculiar llmltatlonsemployed by
the Legislature In this instance to segre-
gate the class to be affected by the legis-
lation not only bears no substantialrela-
tion to the objects sought to be accompllsh-
ed by the Act, but the purported clgas at-
temped to be so segregated Is, In fact, not
a class distinct in any substantialmanner
from others In this State. There Is noth-
ing peculiar about a county having a popu-
lation of less than 125,000 nor more than
175,000 Inhabitantsand containinga city
with a populationof not less thaa 90,000
InQabltaatsthat llarksIt a suitable aad
peculiar field for the expendlng of publie
funds for advertisingand prowtlng the
growth and development of the county aud
Ban. Wm. E. Pool, page 5 (V-909)
its county seat, as dlstlngulshedfror
other counties havfag substantiallythe'
same populationor cltlos of similar size.
The.slight variatloa between the popula-
tion of El Paaso County and Its principal
city and other counties and cities in the
State does not distinguish It In any man-
ner that Is germane to the purpose of this
particular legislation. In other words,
whatever difference there Is In population
does not appear to be material to the ob-
jects sou&t to be accomplished. After
havlngcarefully considered the smtter,
we are convinced that the attempted clas-
slflcatioP~~ls uareasenableand bears no
rolatiea to the eb j.ectssought to be ac-
complished by the Act, and that as a con-
sequencethe Act Is void."
Since Senate Bill 463 of the 51ti &eglslature
19$9 applies only to Wlnkler County, It Is our opinion,
la view of the foregoingauthorities that the classlfl-
eation contained In said bill Is not based on a real
Qlstlnctlon,but is an arbitrary classifl~atlonand Is
¶imsubstance a local or special law. Therefore, It is
&&'oplnion that Senate I3111463 Is unconstltutloaal~.
Senate Bill 463, Acts of the 51st &eg-
lslature, 1949, applicable only to coun-
ties with a populationbetween 6141 and
6150 according to the last census, and af-
feet1 08ly Winkler County, violates Ssc-
tion.5
2 Article III of the Texas Constl-
tutlon &d Is unconstitutionalas a local
and special law.
Yovs vary truly,
ATTORRBY OBRBRAL OF TEXAS
BY
BA:bhzmw Aeiistait