c- -
R-488
THEATTOEWEYGENERAL
BFTEXAS
PRICE DANIEL
ATTORNEYGENERAL
June 5, 1947
Hon. H. L. Roberts Opinion No. O-235
County Auditor
Hutchinson County Re: Constitutionality of
Stinnett, Texas - an Act which only ap-
plies to counties
Dear Sir: within population
brackets shown by
the census of 1940.
We refer to your letter of May 12, 1947, in
which you submit the following:
"Our Commissioners' Court desires a
ruling by your Department as to the con-
stitutionality of that part of Chapter
50, H.B. No. 51, amending Article 5142,
passed by the present Legislature, which
reads as follows:
'"'Providedfurther that in counties
having a population of not less than Nih+
teen Thousand (19,000) and not more than
fifty thousand (50,000) as shown by the
1940 Federal Census and whi.chhas an assess-
ed valuation of taxable property of not
less than Twenty-five Milli.onDollars (#25,-
OOO,OOO), one juvenile officer may be ap-
pointed by the Commissioner's'Court, whose
salar may not exceed Three Hundred Dollars
(33OOV Per month and expenses not to exceed
Six Hundred Dollars ($600) per year.'
"Hutchinson County has a population of
19,069 as shown by the 1940 Federal Census,
and a Tax Roll valuation of $29,394, 725.00
as shown by the 1946 tax roll." (Emphasis
added)
The language "having a population of not less
than nineteen thousand (19.000) and not more than fiftv
thousand (50,000), as shown by.the 1940 Federal census;
and which has an assessed valuation of taxable property
of not less than Twenty-five Million Dollars ($25,OOO,-
OOC)," definitely confines the application of the Act
,to,thecounties which met those requirements at the ef-
--
Hon. II.L. Roberts, Page 2
feotive date of the Act. No other county can ever
come into the same class because of the tie to the
1940 census and to the present tax rolls of the
counties now in the class. The provisions of the
Act only apply to the oounties of Bell, Brazoria,
Duval, Ellis, Fort Bend, Gray, Hutchinson,,Jim
Wells, Montgomery, Tom Green, Van Zandt, Victoria,
Wharton and Wood.
Section 56 of Article III of the State Con-
stitution reads in part:
"The Legislature shall not, except as
otherwise provided in this Constitution,
pass any local or speoial.law, authorizing...
"Regulating the affairs of counties,
oities, towns, wards or school districts."
The Supreme Court of Texas held in the case
Of Altgelt v. Gutzeit, 109 Tex..l23, 201 S.W. 400,
tha t an Act fixing the salaries of County Commissioners
was an Act "regulating the affairs of counties" within
the purview of the Constitution, and that an attempt to
do so by local or special law was void.
In the case of,City of Fort ,Worthv. Bobbitt,
36 S.W. 2d, 470, the Court had the question of the
validity of an Act which applied to cities having a
population of not.less than 106,000 inhabitants and
not more than 110,000 inhabitants according to the
census of 1920. The Court said:
"The Constitution in plain and simple
,.terms prohibits the enactment of any local
or special law regulating the affairs of .'
cities, or changing their charters. It can-
not be denied that this law does have ref-'
erenoe to regulating the affairs of cities.
If it is a local or special law, it is
therefore.unconstitutionsland void...
"If we should hold this law to be con-
stitutional when it describes and confines
its application to one city, we would in
effect be holding the constitutional pro-
vision under discussion an idle and vain
thing, and can be evaded by a subterfuge.
We therefore hold that the Act in question
is unoonstitutional and void."
Hon. H. L. Roberts, Page 3
The Court then quotes,from Lewis' Sutherland
Statutory Construction'(26 ed) p. 397, et seq., as fol-
lows:
"A classifioation based upon existing
or past conditions or facts and which would
exclude the persons, places, things or ob-
jeots,thereafter coming into the sit;;",;o;
or condition, isspecial and void.
classification of cities or counties based
upon existing population or upon the popu-
lation shown by specific census is of this
character."
The Texas Court of Criminal Appeals quoted ex-
tensively from the City of Fort Worth case and followed
its conclusions in Smith v. State, 49 S.W. 2d 739.
The case of City of Fort Worth v. 'Bobbitt,
Attorney General, supra, should not be confused with
City of Fort Worth v. Bobbitt, Attorney General, 41
S.X. '2d 228. 'In the latter case the Court held a sta-
tute constitutional which applied to "cities in the
State of Texas, having a population of more than 100,000
inhabitants according to the last receding United States
census." (Emphasis added). -