R-470
BOG. J. Y. B0ya
county Auditor
Lubbock County
Lubbock, Texas
Opinion No. v-225
Dear Sir:
Re: Constitutionality 0.r
S. B. 272, Acts of the
50th Legislature, 1947.
Your request for an opinion of this Department
on the above subject matter is as follows:
"Senate Bill 272 which became law May 2,
1947, affects salaries of all deputies, clerks
and assistants of public officials of Lubbock
County for current month. In view of this fact,
will appreciate your opinion as to constitution-
ality of such bill."
S. B. 272, Acts of the 50th Legislature, 1947, is
an Act amending Art. 3902, V.C.S., allowing additional com-
pensation for deputies, clerks and assistants of district,
.county and precinct officials in counties of this State hav-
ing a population of not less than 51,782 inhabitants ana not
more than 52,500, according to the last preceding federal
census. According to the last preceding federal census,
Lubboak County is the only county in this State falling
within the above~~classificati.on.
Art. III, Sec. 56, of our State Constitution pro-
vides in part 8s follows:
"The Legislature shall not, except as other-
wise provided in this Constitution, pass any
local or special laws, . . . regulating the af-
fairs of counties, cities, towns, wards or school
districts; . . . creating offices or prescribing
the powers and duties of officers, in counties,
cities, towns, election or school districts;
. . ."
Hon. J. Y. Boyd - Page 2 (V-225)
We quote the following from our Opinion No. O-2221, ,/
which was upheld by the Court of Civil Appeals in the ease of ,'
Oakley v. Kent, 181 S.W. (2d) 919:
"A law which applies only to a part Of a
natural class of persons or things must predi-
cate its inclusion of the part and exclusion
of the balance upon characteristics peculiar to
the part, which, considering the objects and pur-
poses of the law, afford reasonable ground for
restricting the application of the law to the
part. Classification must be reasonable and
natural, not arbitrary and capricious, Arbi-
trary designation is not classification. The
vice of local or special laws is that they rest
on arbitrary designation; that they do not em-
brace and affect all of the class to which they
are naturally related. 25 R. C. L. ppa 815-816;
12 Am. Jr. p* 146; Smith v. State (Ct,Cr.App,),
49 S. W. (2d) 739; Randolph v. State, (Ct.Cr.
App.), 36 S.W. (2d) 484; Clark v. Finley, 93
Tex. 171, 54 S.W. 343; . D 0n
In the case of County of Bexar v. Tynans 97 S.W.
(2d) 467, the Supreme Court of.Texas announced the follow-
ing principle, which controls the matter herein:
llNotwithstandingit is true that the Legis-
lature may classify counties upon the basis of
population for the purpose of fixing compensation
of county and precinct officers, yet in doing so
the classification must be based upon a real
distinction, and must not be arbitrary or a de-
vice to give what is in substance a local or
special law the form of a general law."
We quote the following from Oakley v. Kent,supra:
"Point 2 challenges said ruling of the trial
court on the ground that the bill is wholly un-
constitutional in that Sec. 3 thereof, having re-
ference to the employment and payment of a deputy
assessor-collector of taxes, applies only to
counties having a population of 140,000 to 22O;i
OOCinhabitants, according to the 1940 Federal
census,-so that all other counties are ex-
cluded and Jefferson County only comes with-
in such provision, and so the provision excludes
counties or lesser or greater population from
Hon. J. Y. Boyd - Page 3 (V-225)
employment and paying a deputy assessor-collector
or taxes, and for such reasons Sec. 3 is arbi-
trary and discriminatory and is but a local or
special law passed under the guise of a general
statute and violates Art. 3, Sec. 56 of the
State Constitution, Vernon's Ann. St., rorbia-
ding the Legislature to pass any law regulating
.~theaffairs of any such county, creating offices
or prescribing the power or duties of officers
in counties.
“Point 3 challenges the court's action in
giving the peremptory instruction and refusing
to enjoin the county treasurer and county audi-
tor of Jefferson County from issuing, register-
ing and paying the salary of the purchasing
agent for said county aocording to the provis-
ions of Sec. 4(a) of said bill, because the bill
is unconstitutional in that Sec. 4(a), having
reference to the creation and payment of a county
purchasing agent, applies to the 1940 Federal
census so that all other counties are excluded
and Jefferson County only comes within such pro-
visions and so counties or lesser or greater
population are not permitted to exercise the
power of appointing a purchasing agent. That by
reason..ofsuch situation Sec. 4(a) is arbitrary and
discriminatory and but a local or special law pas-
sed under the guise of the general statute and
violative of Art. III, Sec. 56, forbidding the leg-
islature passing any such law regulating the af-
fairs of any such County, creating orrioes,o,rpre-
scribing the powers or duties of the officers in
counties. . .
ulBeoause population as a basis for clas-
sification has been sustained by the courts in
respect to legislation on oertain subjects, it has
been assumed, erroneously, that population brackets
will serve in all instances to avoid the oondem-
nation of the Constitution. This mistaken assump-
tion proceeds from a failure to note that
population has been sustained as a basis for
olassification only in those instances where
it bore a reasonable relation to the objects
and purposes of the law and was founded upon
rational difference in the necessities or
conditions of the groups subjected to dirrer-
ent laws. Where it has been determined that.
Han, J. Y. Boyd - Page 4 (V-225)
considering the objects and purposes of the
law, differences in population afford no ra-
tional basis for discriminating between groups
of the same natural class, classification on
the basis of population has been termed arbi-
trary selection, and the law has been held to
be special and local. Randolph v. State,supra.
"'Where population might have served as a
rational basis for classification, if the ob-
ject and purpose of the law had been to in-
crease the compensation of county officers,
since the purpose of the particular law was to
lower such compensation the classifioation was
held to be inverted and the law special and
local. Bexar County v. Tynan, supra.* * *l
"In view of the foregoing authorities it
is our opinion that Section 4 of the act clear-
ly violates the provisions of Article III, Sec-
tion 56, of the State Constitution and is there-
fore unconstitutional and void.n
We quote the following from Miller, et al, v.
El Paso,County, (Sup. Ct.) 150 S.W.2d 1000:
"It will be noted that the Act in question
by its terms is made applicable only in those
counties having a population of not less than
125,000 nor more than 175,000 inhabitants, and
containing a city having a population of not
less than 90,000 inhabitants, as shown by the
last preceding Federal census, The evidence
shows, without dispute, that the only county
within the State.coming within the provisions
of the Act at the time of its adoption was El
Paso county. The Legislature was doubtless
cognizant of this fact. It was also oogni-
zant Of the fact that another Federal census
nould not be taken until 1940, and that as a
consequence no other county would come within
the terms of the Act for a period of rive
years after its adoption. We must presume,
therefore, that it was intended by the Legis-
lature that said Act should apply only to El
Paso County during said period of time. As
a matter Of fact, no other county met the
population requirements of the Act under the
1940.census, and as a consequence El Paso
County is the only county that will be affect-
ed thereby until after 1950,
.
Hon. J. Y. Boyd - Page 5 (V-225)
We are therefore met at the outset with
a law which, under facts well known at the
time of its adoption, was applicable only to
a single county. Clearly then it is a local
law and must fall as such, unless it can be
fairly said that the class so s'egregatedby
the Act is a substantial class and has char-
acteristics legitimately distinguishing it
from the remainder of the State so as to require
legislation peculiar thereto. In this instance
the olassification is made to rest entirely on
the population of the county and a city therein.
Resort to population brackets for the purpose of
classifying subjects for legislation is permis-
sible where the spread of population is broad
enough to include or segregate a substantial
class, and where the population bears some real
relation to the subject of legislation and affords
a fair basis for the classification. It has been
legitimately employed in fixing fees of offices
in certain cases (Clark v. Finley, Comptroller,
93 Tex.~l'll,178, 54 S.W. 343), but even then it
is permissible only where the spread of population
is substantial and is sufficient to include a real
class with characteristics which reasonably dis-
tinguish it from others as applied to the contem-
plated legislation, and affords a fair basis for
the olassification~ Bexsr County v. Tynan, 128
Tex, 223, 97 S.W.2d,467."
For additional authorities see Lewis Sutherland
~Statutory Constru&ion.(2nd ed,), p0 397 et seq; Ex Parte
.Carson (Grim. App.) 159 S.W.2d 126; Jameson v. Smith
161 S.W.2d 520; City of Ft.~Worth v. Bobbitt, 121 Tex..
14, 36 S,W.2d 470, 41 S.W.2d 228; Supreme Lodge Benev-
olent AssPn. v. Johnson, 98 Tex. 1, 81 S.W. 18; Smith
v. State,~49 S.W.2d.739; Randolph v, State, 46 S.W.2d
404; Fritter v. West, 65 S.W.2d 414, writ refused;State
v. Hall,.76 S,W.2d 880; Wood v. Marfa Ind. School Dist.,
123 S.W.2d 429; Leonard v. Road Maintenance Dist. No. 1,
187 Ark. 599, 61 S.W.2d 70.
Since S. B. 272, Acts of the 50th Legislature, 1947,
applies only to Lubbock County, it is our opinion, in view of
the foregoing authorities, that the classification contained
in said bill is not based on a real distinction, but is an
arbitrary ClassificatiOu and is in substance a local or speo-
ial law. Therefore, it is our opinion that S. B. 272 is un-
constitutional and void,
.
. , \
.\
‘l, ..
:
Han, J. Y. Boyd - Page 6 (V-225)
SUMMARY
S. B. 272, Aots of the 50th Legislature,
1947, a salary bill affecting only Lubbock
County, violates Art. III, Sec. 56, of our
State Constitution and is unconstitutional.
Yours very truly,
ATTORNEYGENERAL OF TEXAS
John Reeves
'ATTORNEY GENERAL
JR:jrb