(concurring).
Concurring in the conclusions reached in the able opinion by Mr. Justice SPEER, the writer feels impelled to comment on the status and effect of chapter 16, Acts of the 44th Legislature, passed at the Regular Session thereof (Vernon’s Ann. Civ.St. art. 6716 note), which was enacted as if it were a general law, and the validity of which depends upon its being in fact a general law and not a local law. The court’s opinion does not touch this phase of the case. The act is made to apply to counties which meet the following requirements, and to no others: The comity must have á population of more than 160,000 inhabitants, and less than 230,000, according to the last census taken by the Government of the United States, and in such county so qualifying there must be an incorporated city having a population in excess of 100,000, according to such census. We are compelled to take judicial notice of the results and findings disclosed by the last Federal census, which was taken in 1930, in order to ascertain what county or counties actually come within the provisions of the act.
A study of such Federal census facts and figures discloses that Tarrant County was, at the time of the passage of the act, the only county in the state of Texas to which the law could apply. By the very provisions of the act, the populous counties of Bexar, Dallas and Ilarris, in which the three largest Texas cities are situated, were not only excluded from its provisions, but because of their great population none of these can ever be affected by the act.
Tarrant County, with a population of 197,553, is, according to the said last Federal census, the fourth county in population, within our State. The next county, or fifth in population, is Jefferson, with a population of 133,391, and the sixth county in population is El Paso, with 131,697. Beaumont, the largest city in Jefferson County, has a population of 57,732, and El Paso, the largest city in El Paso County, has a population of 102,421.
No other county in the State of Texas has a population of so much as 100,000.
If we can take judicial notice of the Federal census of 1930, we can also take such notice of the next preceding census taken in 1920. Taking such figures and assuming that the same increase in population may be reasonably expected between the census of 1930 and that of 1940, as was had between 1920 and 1930, what do we find?
It will be 10 years before Jefferson County will, within all human expectations, attain a population of 160,000, and it will be approximately 20 years before the Ciiy of Beaumont attains a population of 100, - 000.
The County of El Paso will, by enjoying, in the future, such past accretions, have approximately 160,000 inhabitants within the next 10 years, while its largest city (El Paso) now qualifies, with more than 100,000 inhabitants. It is easily seen that, in the natural course of human events, two counties in the State of Texas will be able, in many years, to come within the provisions of this act. It is obvious to the writer that this bill was enacted for the sole purpose of making it apply to Tarrant County, just as the members of the Legislature, at the time of its passage, knew that it would apply only to such county. Drawing the bill so that the county’s population must be over 160,-000 and less than 230,000 made it apply to Tarrant County when passed, and the figures were spread so that, according to human expectations, based on the last two Federal censuses, it would remain applicable to Tarrant County for a period of about 10 years, before Tarrant County becomes disqualified and at which time some other county might become qualified. Only Divine Power could possibly foresee when any other counties other than Jefferson and El Paso will ever be affected by the bill.
If this were intended as a general law, and it is .beneficial to the citizens of the populous counties of Texas, there was neither rhyme nor reason in limiting its application to the county, or counties, that were blest with more than 160,000 inhabitants and less than 230,000.
The writer has had experience in the House of Representatives of Texas,.as a *974member of that body in the 32nd and the 36th Legislatures, and he knows, from experience, that, when this till came before the 44th Legislature for consideration, the matter was made plain to the members thereof that the act applied only to Tar-rant County.
The act is a local law clothed in the garments of a general law and ought to be condemned as such, having been passed without the public notice and publication required by the Constitution of Texas for all local and special acts.
Within the last few years, it has become a peculiar practice to have the State Legislature pass laws, having local effect only, in the guise of general laws. This is a pernicious practice which ought, to be condemned by every court in Texas, and a stop should be put to such unwarranted evasions of the plain provisions of our Constitution.
The act is unconstitutional and void, because its very language and limitations show that the purported classification is arbitrary, unwarranted and fictitious. No such class existed at the time the law was passed and there was and could be no reasonable expectation that the act would apply to any other county than Tarrant, within the reasonably near future. The provisions showing that the act would and did apply to large counties having a population of more than 160,000 and less than 230,000, when it was then known to the lawmaking bodies that there were three of the largest counties in Texas which were expressly excluded, and which, by the very provisions of the act, could never be affected by the law, because the population in each far exceeded the restrictions made, condemns the act as one setting up arbitrary, unwarranted and fictitious classifications.
Let us look into the history of this act of the 44th Legislature (chapter 16), passed in 1935 (Vernon’s Ann.Civ.St. art. 6716 note). It expressly (section 36) repeals chapter 12 of Acts of the 43rd Legislature (1933), which was its counterpart and which was the first attempt to pass a road law’ for Tarrant County without proceeding as is required for special and local laws. This first monstrosity, passed in 1933, specifically (section 33) repealed the local road-laws that had therétofore been passed for and in behalf of Tarrant County. The 1933 act repeals Senate Bill 92, passed at the 3rd Called Session of the 36th Legislature, its amendments, Senate Bill No. 10, passed at the 4th Called Session of the 36th Legislature, and its amendment, House Bill 188, being chapter 96 of Special and Local Laws passed by the 38th Legislature at its Regular Session. Thus it appears that the Legislature, through successive years, passed local and special road laws for Tarrant County, up to the year 1933, when the 43rd Legislature undertook to pass a road law for Tarrant .County by specially repealing all of the local road laws theretofore passed and undertook to substitute therefor a road law which has the appearance of a general law on its face, but the very provisions and terms of which show that it then applied to and could apply to only one county in the State — -Tarrant.
The very acts of the Legislature show an intent to enact a local law for Tarrant County and no other intent can be reasonably deduced therefrom. But it is contended that the act is fully authorized by article 8, § 9, of” the State Constitution, which declares:
“And the Legislature may pass local laws for the maintenance of the public roads and highways, without the local notice required for special or local laws.”
Let us see how far-reaching this act is and what it purports to do other than simply maintain the public roads and highways of the county or counties affected. Section 2 creates the office of county engineer, provides for his salary and term of office, and prescribes that he shall be paid out of the Second Class Road and Bridge Fund. Section 3 makes it the duty of the-engineer to classify all the public roads in his county, prepare a suitable map showing the classes of all roads. Section 4 makes it the duty of the engineer to make, every 3 months, a complete inventory and appraisement of all tools, machinery, equipment, materials, trucks, cars, teams, wagons, and other property owned by the Second-Class Road and Bridge Fund as a permanent record to be kept by the county auditor, and provides for the making and entering on the minutes of the Commissioners’ Court of orders showing what property and equipment becomes unsalable, and the disposition thereof.
Section 5 provides that the Commissioners’ Court shall employ all help necessary for the discharge of their public service; and that such employees shall receive- such *975compensation as may be fixed by the said court, and paid out on orders entered by the court which show the necessity for such employment, the amount of compensation and the fund from which payment is to be made.
Section 6 provides that the engineer shall keep daily, in duplicate, a time sheet showing the amount of time, character of work performed, and the place where performed by each person employed in road maintenance or construction, one copy to be given to the county auditor.
Section 7 provides that the county engineer shall make a careful survey of all roads then opened and constructed, with a view of determining what new roads and connections of roads should be opened and constructed, and what roads should be widened and improved. This section provides for what is designated as a “Master Plan” of roads for the county.
Section 8 provides that, when this “Master Plan” is prepared by the engineer and submitted to the Commissioners’ Court for adoption, such court shall set a date at a regular meeting, called for the purpose, and give at least 2 weeks’ public notice of the meeting, inviting the citizenship of the county to be present and protest any part of the “Plan” and give suggestions pertinent thereto, and that the decision of the court shall become and be final and conclusive as to the “Plan,” and no succeeding Commissioners’ Court shall have power or authority to alter, change or amend any of its provisions except by unanimous vote.
Section 9 makes it the duty of the county auditor to compute the pay for all employees, under the court’s supervision, from time sheets furnished by the engineer and specifically makes it the duty of the said auditor, “at such time or times as he deems advisable, to check any or all of such employees while they are actually engaged in work.”
Section 10 gives the Commissioners’ Court the authority to employ special legal counsel “to advise the Courts or the Commissioners thereof in all matters wherein the services of counsel may be required and also to conduct the litigation of the County in which the interests of the county may be involved.”
Section 11 provides that, before construction begins on any road or highway to be improved, the engineer, under the direction of the court, shall make careful and accurate surveys of the roads and highways to be improved and shall file the plans, specifications and cost estimates as records. The provisions of this section are specifically eliminated as affecting work done by county convicts.
Section 12 provides the express authority on the part of the Commissioners’ Court to condemn lands for all road purposes, “in the same manner as now or may hereafter be prescribed by law for condemnation by railroad corporations.” This section provides that it does not repeal the provisions of the General Laws that govern the opening or construction of public roads by the jury of view, and makes the act cumulative of the general road laws.
Section 13 deals with the duties of the court where the better drainage of any public road in the county is found to be necessary, where the ditches along the right of way of a railroad make it necessary to empty or drain such ditches, and empowers the court with the right to give notice to such railroad of its order requiring the railroad to effectuate such drainage within 60 days after notice, and, in the event the railroad fails to comply with the order, empowers the court to do the work and recover the sum expended therefor, in the name of the county, for the benefit of the road and bridge fund.
Section 14 provides that the payment of road taxes by labor is abolished and all laws concerning overseers are repealed.
Section 15 provides that “each member of the Commissioners’ Court shall be and he is hereby required to devote all of his time * * * to the duties of his office. * * * He shall personally inspect the condition of the roads and bridges of the county, and shall see to it that employees under the control of the Commissioners’ Court perform their full duties.” The salary of each commissioner is fixed at $4,200.00 per year, “payable in monthly installments, of which at least one-half and not more than seventy-five (75) per cent shall be paid out of the Road and Bridge Fund of the county, and the remainder out of the General Fund.”
Section 16 provides that it shall be unlawful for the court to levy any road and bridge tax in excess of the maximum rate prescribed by law, making it a misdemeanor punishable by a fine of not more *976than $500.00 to vote for the levying of any such excess tax.
Section 17 provides that the court may require county convicts, who are physically able, to work on the roads "under such rules and regulations as the Court may prescribe,” and provides that each convict shall be given credit for $1.00 per day for such work, “one-half of which shall be as nearly as practicable, applied to the fine, and one-half to the Court costs, provided that this 'shall not be so construed as to relieve a convict from the payment of all costs for which he would be liable under the General Laws of this State.” It further provides that the Commissioners’ Court “may, as a reward for good behavior and faithful service, grant a reasonable commutation which shall in no case exceed one-tenth of the whole time.” It further provides for the furnishing of houses, tents, clothing, food, medicine and medical attention, supplies and guards, as the court deems- necessary for the safe and humane treatment of the convicts, that the court may make certain rules and regulations covering reasonable and humane punishment necessary to require the convicts to do good work, and provides that the guards may administer all such, under the direction of the court. It provides that the court may establish rewards, not to exceed $10.00 in any instance, to be paid out of the road and bridge fund for the capture of an escaped convict.
Section 18 -empowers the court to submit to the qualified voters of the county the question of issuing bonds for the purpose of building, repairing, maintaining, etc., of first and second class roads in the county.
Sections 19, 20 and 21 set up the machinery for proper issuance of such bonds and levying of taxes to pay the same.
Section 22 makes it the duty of the county treasurer to keep a separate account of all the funds so raised and prohibits the expenditure of the money except on written order or warrant of the court.
Section 23 provides that no contract can be made for the expenditure of money derived from the sale of bonds until the engineer has made and filed with the court maps, plans, specifications, estimates, etc., of the work to be done, and same are considered and ordered of record; that the construction work may he done on roads' by contract, day labor or by convict labor.
Section 24 provides for competitive bids for the purchase of tools,' machinery, materials and supplies which may be purchased from the Second Class Road and Bridge Fund.
Section 25 elaborates on the handling of competitive bids.
Section 26 provides that “The Commissioners’ Court is authorized and empowered, whenever and in such manner as it may determine, to transfer to and make a part of the Road and Bridge Fund of said county any money now in the county, to pay interest and create a sinking fund for any bonds of said county heretofore issued and which have now been retired and cancelled,” and permits the court to expend such money, at their discretion, in constructing and repairing roads.
Section 27 provides for a detailed record of every vote for the expenditure of funds mentioned in the act.
Section 28 empowers the Commissioners’ Court to plant shade trees along the side of public roads, erect signboards directing the way and giving the distance to the next important place on the highway, and provides that any person who removes such signboards or injures the shade trees shall be deemed guilty of a misdemeanor punishable by a fine of not less than $25.00 nor more than $100.00.
Section 29 forbids any member of the Commissioners’ Court, under penalty of a fine, being interested directly or indirectly in any contract made pursuant to the-act.
Section 30 provides that all fines' for any and all violations of any of the provisions of the act and all moneys collected by the county oh, under or by virtue of any contract made under "the act “shall be applied to the Road and Bridge Fund of said county.”
Section 31 defines the terms “Road” and “Plighway.”
Section 32 declares the act a public one, cognizance of which shall be taken without proof.
Section 33 provides for the making of an annual budget, by the Commissioners’ Court, for the expenditure of all county funds; the keeping within such budget of *977all expenditures; the right to depart from the budget through defined necessity. “Provided, that this provision shall be cumulative of all other General Laws on this subject governing counties where such provisions are not in conflict herewith.”
Section 34 provides that: “The provisions of this Act are and shall be held and construed to be cumulative of all General Laws of this State on the subject treated of and embraced in this Act when not in conflict or inconsistent herewith, but in case of such conflict or inconsistency in whole or in part, this Act shall control said county.”
Section 35 is a “saving clause,” seeking to preserve all sections and provisions that may be found to be in harmony with the limitations found in our State Constitution.
Section 36 repeals “any and all laws and parts of laws in conflict or inconsistent” with the act, and expressly repeals the Act of the 43rd Legislature, chapter 12, being House Bill No. 3. The last-mentioned act is the first act which attempts to make a road law for Tarrant County through pretense of a general law.
Section 37 declares an emergency.
The 34th Legislature (1915) passed a special road law for Houston County (Acts 34th Leg., Sp.Laws, p. 149). This act was before Section B of our Commission of Appeals in the case of Austin Bros. v. Patton et al., 288 S.W. 182, Mr. Justice Speer writing the opinion.
The forceful and clear-cut language used by Mr. Justice Speer in condemning this act, as being unconstitutional, is most applicable to the act before us, even if it may be correctly argued that the act could be passed under the provisions of article 8, § 9, Texas Constitution.
Section 56 of article 3, Texas Constitution, declares emphatically: “The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing * * * Regulating the affairs of counties * * * Authorizing the laying out, opening, altering or maintaining of roads, highways, streets or alleys; * * * Creating offices, or prescribing the powers and duties of officers, in, counties ⅜ * * Remitting fines, penalties and forfeitures * * * Regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts, * * * commissioners * * * or other tribunals, or providing or changing methods for the collection of debts, or the enforcing of judgments.”
An analysis of the act before us (the substance of each section being given supra) discloses to the satisfaction of the writer that it violates several inhibitions of the Constitution above quoted. If we understand the many provisions of the act, to us it attempts to regulate the affairs of Tarrant County in several respects; it creates offices; it prescribes the powers and duties of officers in counties ; it remits fines and penalties; it regulates the practice in and jurisdiction of proceedings before the Commissioners’ Court and changes the rules of evidence in certain proceedings and inquiries before that court; it changes the method of collecting certain debts and the enforcement of certain judgments; it fixes the salaries of the County Commissioners for all services to be rendered as such officers. Tinner v. Crow et al., 124 Tex. 368, 78 S.W.(2d) 588, Commission of Appeals. It even attempts to divert all funds collected by Tarrant County to pay interest and create a sinking fund for any and all bonds theretofore issued, which have been retired and cancelled, to the Road and Bridge Fund, when, by the plain provisions of the State statutes, articles 1626 and 1628 (formerly 1433 and 1438), such excess funds must be devoted to payment of third class claims and debts.
Admitting, for the purpose of argument, that the act is authorized by the provisions of article 8, § 9, of our Constitution, which declares: “And the Legislature may pass local laws for the maintenance [italics ours] of the public roads and highways, without the local notice required for special or local laws,” nevertheless its provisions are clearly repugnant to other inhibitions written into the Constitution, and pointed out above.
The writer is convinced that the act before us violates the provisions of section 56 of article 3, Texas Constitution, which forbids the Legislature from passing any local or special law “authorizing the laying out, opening, altering or' maintaining of roads, highways, streets or alleys ;” and that the provisions of section 9, article 8, Texas Constitution, do not áu-*978thorize the passage of a local or special road law authorizing the laying out, opening, altering and maintaining of roads, highways, streets or alleys.
We are fully aware of the fact that the Supreme Court of Texas, in 1906 (Dallas County et al. v. Geo. H. Plowman, 99 Tex. 509, 91 S.W. 221), speaking through Mr. Justice Erown, has held that the phrase “maintenance of public roads” must be construed as authorizing the lawmaking body to pass local laws for laying out, opening, altering and maintaining roads and highways, and that this opinion is in direct conflict with the writer’s views on the matter. The construction given by the Supreme Court to the provisions of section 9, article 8, Texas Constitution, is a strained construction. The language thus construed was written into the Constitution after section 56 of article 3 was adopted. Had the Legislature intended to submit to the people an amendment to the Constitution broadening the powers of the Legislature with respect to passing local or special road laws authorizing the "laying out, opening, altering, or maintaining of roads, highways, street or alleys’’ (italics ours), it would háve been so easy to have said so instead of using the one word “maintenance.” The portion of the Constitution that was being amended dealt with four distinct subjects — laying out, opening, altering and maintaining roads. It cannot be successfully argued that “maintain” means “to lay out,” “to open” or “to alter.” The proper maintenance of an existing road may call for its alteration, but the words “laying out and opening,” used in connection with roads, mean and can mean only, acts done in connection with the construction of roads not in actual existence.
The word “maintain” does not mean to provide or construct, but means to keep up; to keep from change; to preserve (Worcester’s Dictionary) ; to hold or keep in any particular state or condition; to keep up (Webster’s Dictionary).
In Moon v. Durden, 2 Exch. 21, the following definition is given: “The verb ‘to maintain’ signifies to support what is already brought into existence.” The words “maintenance” and “repair,” when applied to a highway, are held to mean practically one and the same thing. Barber Asphalt Pav. Co. v. Hezel, 155 Mo. 391, 56 S.W. 449, 48 L.R.A. 285; Verdin v. City of St. Louis, 131 Mo. 26, 33 S.W. 480, 36 S.W. 52.
We could cite many authorities showing that in other jurisdictions no such broad and liberal construction of the word “maintenance” has ever been given as has been done by the Supreme Court of Texas in relation to the use of such word in section 9 of article 8 of the Texas Constitution.
When it is made plain that every county in Texas has been provided with general laws through which they may lay out, and open and alter public roads, and that such laws are adequate to the purposes declared, there was no occasion for an amendment to the Constitution permitting the Legislature to pass local laws for the laying out, opening and altering of public roads by any county in any manner different from the existing general laws. And the Legislature did not submit any such intended amendment. The amendment as submitted touched only the matter of “maintenance,” and the plain language used, without referring to laying out, opening and altering roads, shows a legislative intent that is not reasonably susceptible of the enlargement and construction heretofore given.
As a further evidence of the obvious intention of the Legislature in submitting the constitutional amendment on which the right to pass the bill under review, as a special or local law, depends, we call attention to the fact that the provisions relied upon are tacked on the end of section 9, and that section deals solely with the right to levy and the limitations upon levying taxes, and contains provisions covering taxes “for roads,” limited to 15 cents on the $100.00 valuation, and provisions authorizing “an additional annual acl valorem tax to be levied and collected for the further maintenance of the public roads, if such tax be approved by a vote of the taxpaying voters, such tax not to exceed 15 cents on the $100.00 valuation.” (Italics ours.) The subjects so dealt with are taxes “for roads” and taxes “for the further maintenance of public roads,” two obviously distinct subjects. “Maintenance” is dealt with last, and the provisions relied upon follow, immediately, the language dealing with “maintenance.”
The Legislature has used the word “maintenance”' in its plain and commonly accepted meaning, and no other interpreta*979tion is reasonably justified, in the writer’s opinion.
As to the Acts of the 44th Legislature being valid as a local road law, the case of Smith v. Grayson County, 18 Tex.Civ.App. 1S3, 44 S.W. 921, expressly approved by Mr. Justice Brown, of our Supreme Court, in Dallas County et al. v. Geo. H. Plowman, 99 Tex. 509, 91 S.W. 221, and the Dallas County Case, are not in point, for the obvious reason that the opinion in the Grayson County Case, as well as the opinion in the Dallas County Case, deals with a special road law, which was passed as such. In each instance the law attacked shows upon its face that it purports to be a local road law and intended as such, and nothing more.
In the suit before us, the law being attacked purports to be a general law. It was passed in the guise of a general law. It is begging the question to urge here that, while the Legislature attempted to enact a general law that names no comity to which it is intended to apply, Tar-rant County, to which it alone applies, may adopt it as its Local Road Law, passed solely and expressly for it.
Since these observations were made by the writer, the Commission of Appeals, in Bexar County v. Tynan et al., 97 S.W.(2d) 467 (opinion expressly adopted by the Supreme Court), condemned a law, similar in nature to the law before us, which contains an arbitrary, unreasonable and unjustifiable “classification” (as was done in the law before us), as unconstitutional and void.
The writer respectfully submits that for the reasons given the act before us is unconstitutional and void.