Untitled Texas Attorney General Opinion

OFFlCE OF THE ATfORNW GENERAL OF I= AUBTlN OllOYCI SPLL=Rs ryou*l* cci*rrL This Opinion Oven ules Opinloa Honorable H. Pat Edwards # O-6776 District ,Attorney Records Building Dallas 2, Texas Dear Sir: Opinion No. O-6846 Re: Coastitutiooalityof H.B. 555, 49th Leg., 1945, (titlcle 2327-a, Y.A.C.S.), concerning salaries of oourt r+ortere. We have received Jtourletter of recent date re- questing an opinion from this departsientOQ the .abovdsab- ject matter. House kill 555, Chapter 291, .ihtsof the 49th *gislatwe, 1945, is as.follows: “section 1, That Article 2326, Chapter 13, Revised Civi.1Statutes of Texas, 1925, and all subsectioasof A.?tlc~le2326, be ati the same are hereby amended so as to hereafter read as sollows: “l&ticle 2326. “‘The official shortWnd reporter of each’~’ Judloial District Court, civil or crI.ninal, and the official shorthand reporter of each County Court at Law,’ civil or criminal, shall receive a salary of not less than Two Thousand, Four Hundred Doj_tara($2,400) per annum and aot more than Three Thou&d, Seven Hundred an.dFifty Dollars ($3,750).per annum. Said salary shall be fixed and determiaed by the District.Judges of:the Judicial Districts,~cl.vi~.orcrlminal.,~ aad the Judges of the ColintyCourt.-atLaw, civl~ OI? criminal, who shall enter an.-order‘in the minutes . ,*, i Honorable H. Pat Edwards, page 2 of the Court, in each county of the district, which shall be a public record and open for public inspection,stating s-pacifically the amount of salary to be paid said re>,rter. Tee District 5n.;(.ge s?lallfile a copy of 5.3idorder xith each Ckxmls5innereCourt of the D:lstrict.The salary ehkllbe in additron to the transcriptfees and tr;Iveli;j3 acS hote:iexpenses of official short- hand reporters,as is nom provided by iaw. “‘The salary shall be paid monthly by the CommissionersCourt of the county or cciuntiesin the Judicial Districts, cicI.ior criminal, and the County Courts at Law, civil OS criminal, out Of any available SUtkdOf the C0UOty~or counties that the ConMssiocers Court may desire to psy the same, aonordiog to At+.c:!es2326H and 23--A. nor more than “sec. 2. The provisionsof this Act are and, shall be held and Con&trued to be cumulative of all.General and Special laws of this State on the subject treated of and embraced in this &zt when not in conflict thereewith,but in case of 'con- flict, la whole or In part, this Act shall con- trol'ln so far a8 any coaSllct~exists. All laws... and parts of laws in conflict with said Act are hereby repealed. "Provided,however;thls Act does not repeal 232&A, 2326~, and 2327~ 0s rioramend ‘h?t'iClQB .Chapter13. "Set . 3. The crowded condition cf the sal- endar tiedthe fact that existing economic condi- tions have brought about an increase In the prices 0-4all commoditiesand that the official short- hand reporters are being paid below the present standardfor comparable SQrVbZQ8, create an Honorable H. Pst Edwards, page 3 emergency and an Imperativepublic necessity that the ConstitutionalRule requirin, bills to be read on three several days In QaCh Rouse be suspended, and said Rule Is hereby suspended,and that this Act &all take effect and be in full fOrCQ and effect from and after Its pdssage, and it is so QUaCted.' You have raised the question as to the coostitu- tionalitg of H.B. 555 because of the exception underlined above. It is.your opinion that said exception amounts to fixing a classificationwhich is arbitrary and has co true relevancy to the purpose of the legislation,and therefore, H.B. 555 is unconstitutionalbecause it violates section 56 of Article III ,of our State Constltutlon. Section 56 of Article III ia In part as .Sollows: "SQC. 56. The Legislature shall not, except as otherwise provided In this Constitution,pass any local or special l~aw,authorieing:. 11 . . . . "Regulatingthe affaira of counties, hities,' towns, wards or school districts; II . . .. "Creatingoffices, or prescribing the powers and duties of officers, In counties, cities, towns, election or school districts;" In thQ case of BQXar Countgv: Tynan, et al, 97 S.W. (2d) 467, (Commissionof Appeals), the Court IU COnStr~iingthe above quoted section of the State Constitution StKitQdthat: "The Legislaturemay, upon a proper and rea- sonable classification,enact a general law which at the time of its enactment is applicable to only one county; provided its application is not. so inflexiblyfixed as to prevent it ever being applicable to other counties. . . . . Honorable II,Pat Edwards, page 4 “Rotwithstandingit Is true that the Legis- lature may classify counties upon a basis of pOpUbti.On for the purpose Of fT?cingcompensa- tion of county and precinct officers, yet in do- 1u.gso the classificationmust be based upon a real distinction,and must not be arbitrary or a device to give what is In substancea local or special law the form of a general law. It is well recognized that in determiningwhether a law is public, general, special or local the courts Will look to its substanceand practical operations rather than to its.title,form and phraseology, because otherwise prohibitionsof the Sundament- al law against special legislationwould be nuga- tory.’ 25 R.C.L., 815, and authoritLes cited . . . . “In the case of Clark v. Finley, 93 Tex. 171, 54 S.W. 343, this court recognized that substantialdifferences In populations of coun- ties could be made a basis of leglslatioaSIxIng compensatia of offFcers, on the theory, as the court clearly recognized, that the work devoiv- bg upOc ac OffiCQr Was in SOme de@W? propor- tionate to the population of the county. This has frequentlybeen recognizedby courts as cre- ating a sufficientdistinctionto justify a larger compensatloafor county officers In coun- ties having a large population as compared with compensationto like officers in counties having In the case of Miller et al v. El Paso County, 150 9. ii.(2d) 1003, the Supreme Court held: “Resort to populationbrackets for purpose of classifying subjects for legislation is Honorable II.Pat Edwards, page 5 permissiblewhere spread of population is broad enough to include or segregatea substantial class and populationbears some real relation to subject of legislationand affords fair basis for classification. . ,. It has been legitimatelyemployed in fix;& .ieesof offices in certain cases but even then it is permissibleonly where the’spread OS population is substantialand ia sufficient to include a real class with characteristicswhich reasonably distinguish it from others as applied to the oontemplatedlegislation,and affor#s a Tai??bas’isfor the classification.I’ (Ende&sccr- ipg ‘ours) EOr additional authorites on the above-quoted rulessee Lewis Sutherland Statutor ea.), p. 397 et seq; of Ft; W0rth.v. Bob-. (2d) ,228;Supreme 1; ‘81S.W. 18; Smith v. State, 49 S.U. (26) 739; Rand01 ir. Stite, 46 3.5-T. (2d) 484; Fr1tter.v. West, 65 S.W. (2d) r14, wrlt refused; State v. Rally 76 S.W. (26) 880~ Wood .v.. Marfa Ind. School mat ., 123 S,W. (2d) 4293’Leonard v. Road Malntnnance Ilist. No..1, 187 Ark. 599, 61,~ 9.w.~(2d)?O. It will be noted that the provisiona of K, B. 555, of not less than two hundred and Judic’LalMstrlct Court altuated In smaller~doiant~ies @ud shorthand‘ reporters of each Judicial District Court situated in larger counties to receive a greater c,ompensation for their .serviee~ than like .officersin ‘Bexarand Tarr.antCoun- tiea.,‘Applyingthe above-quotedprihciplesof statiat&y construction:andconstFtut,ioaal flawto our preseht la4 (Ii.B,.,555);hitis our opinion that the Le@slatU?e by’ put- ting in the exceptron,c.lausein JiGuse ,Bill, 555,‘fixed g Class- ification,wh$chis:arbi’trary and,whichhad no tr’uerelevancy to the purpose of ~the;leg&slation.;Therefore;‘St is oQr opln- ion that~the,exception clause to II.B. 555, supra, Xs ICI~- CohStitutiOnal ‘andvoid. : (& .1 in :, .I. : Iiotxor~able H. PatzFdwerds, page.6 The question as to whether or not H. B. 555 can stand without the exception clause necessarily-follows. We answer this question in the negative. In the case of Anderson v. Wood, 152 S.W (2d) 1084; the Supreme Court stated the following: "It is very well settled that a statute ex- cepting certain counti,.>arbitrarilyfrom its operation is a 'local or special' law within the meaning of the above constitutionalprovl- don. Hall v. Bell Coumy, Tex. Civ. ~pp., 138 S.W. 178, affirmed by the Supreme Court, Bell County v. Hall, 105 Tex. 558, 153 S.W. 121; Webb v. Adams, 180 Ark. 713, 23 S.W. (26) 617; g;ate ex rel. Johnson v. Chicago, B. & Q. R. 1% MO. 228, 93 S.W. 784, 113 Am. St. Rep. 66i.j 6 R.C.L. 129, 59 C.J. 736. This last pro- viso exempting counties with a population between 195,000 and 205,000 is a part of the original act, and is not an amendment. thereto. Since it is void< the whole act must be declared void. because otherwise the court would have to apply the act to all counties having a population In excess of 125.cO0, and this would be giving the act a broader scope than was intended by the Leglsla- Tiibe --- The rule applicable in such cases Is thus zstatedin Lewis' Sutherland,Statutory Construc- tion, 2d Ed. vol. 1, sec. 306, as follows: 'IS, by striking out a void exception, proVis0 or other restrictiveclause, the remainder, by reason of its generality,will have a broader scope as to subject or territory, its operation is not in accord with the legislativeintent, and the whole would be affected and made void by the in- validity of such part.' Substantiallythe same rule is announced In Ruling Case Law, vol. 6, p. 129. The above rule was So&lowed by this court in Texas-LouisianaPower Co. v. City of Farmers- ville, Tex. Civ. App., 67 s.w. (2d) 235, 238: See, also, James C. Davis Directo,rGeneral, v. George Wallace, 257 U.S. 478, 42 3. Ct..164, 66 L. Ed. 325.” . Honorable H. Pat Edwards, page 7 See also Womack v. Carson, et al, 70 9. w. (za) 416, (Comm. of Appeals); and 39 Tex. Jur., p. 22. To allow H. B. 555 to stand and operate without the exception clause would give broader scope and meaning to tl?c bill than was the intention of the Legislature. There is no basis which would allow one to,claim that the Legisla- ture would have passed Ii.B. 555 without the exception clause. For additional authorities see casea cited in 39 Tex. Jur.; p. 22. It is, therefore, the opinion of this department that H. B. 555, Chapter 291, Acts of the 49th Legislature, 1945, IS unconstitutionaland void. In our Opinion No. O-6776 we were requested merely to interpret certa3.nprovislo~s Gf H. B. 555, supra. There- fore, we aid not pass on ao.yconstitutionalquestion in said opinion. IO view of our holding herein, we hereby withdraw our Opinion No. O-6776. Yours very truly ATTORNEY CERERAL OF TEXA?, BY J . C . .D%?; Assistant’ . .- ‘~/Si@mif ‘, John Reeves APPROVED OCT, 19, 1945 APPRO-KXD /s/ Grover 3ellc-rs OXNIO’L COMlVT’IEE ATTORNEY CEXERAL OF TEXAS By C.WA:B.,Chairman