Honorable Homer Leonard, Speaker
House of Representatives
Austin, Texas
Dear Sir:               OpinionNo. O-3363
                        Re: Constitutionalltg of proposed
                             "Citrus Marketing Act."
       Your written request for an opinion from this depart-
ment has been received and considered. YOU have asked,us for
a ruling on the constitutionality of a proposed "Cltrus~~Market-
ing Act," which gouenclosed~with your request. The'.Actcons-
sists of eighteen pages. Section 22 thereof provides as fol-
lows:
       "SECTION 22. This Act shall apply and be ef-
    fective only in the areas of any three citrus fruit
    producting counties whose boundaries are contiguous
    to each other and whose aggragate population ac-
    cording to the last preceding Federal Census was
    not less then                        inhabitants,"
       The Forty-second Legislature In 1931, p.     838,   ch.   350,
defined the "Citrus Fruit Zone" as follows:
        "Section l,, The counties of Cameron; Willacg,
   Ridalgo; Starr;Zapata, Jim Hogg,,Brooks,Kenedy,
   Kleberg, Nueoes, Jim Wells;Duval, Webb,‘SaiiPatri-
   cio, Refugfo, Bee, Live Oak, McMulleri,  La Salle,
   Dimmit, Maverick, Zavala, Frio, Atascosa,,Wllson,
   Kernes, DeWitt, Victoria, Gollad, Calhoun, and Aran-
   sas,   are hereby designated and declared to bethe
   Citrus Zone of the State of Texas and shall so be
   referred to in the future."
       The Texas Almanac for 1941-42, at p0   214   says:
       '1sJe**   Nearly all of the Texas Crop comes
    from~ the Lower Rio Granoe Valley,~though there is
    some production in the Laredo area and Winter Gar-
    den. There are,small commercial movements of tan-
    gerines, lemons, liy5+ yd+,,othercitrus fruits from
    the Lower Valley,
Honorable Homer Leonard, Speaker, page 2           o-3363


       The purpose of the "Texas Citrus Marketing Act" appears
to be to regulate the marketingof the citrus fruits by im-
posing certain marketing rules and regulations, including .the
quantity of production and fixing the minimum price or "floor"
at which the fruit~is to be sold from the tree by the "pro-
ducer". Basically; the theory of~h~gulation       seems to be
to enhance the purchasing power of the "producer" of citrus
fruits and by improving his economic status, promote the pub-
lic welfare and relieve chaotic economic conditions in the
citrus fruit industry.
       We can see no reasonable basis to support the action
of the Legislature In its attempt to single out only three, of
several, counties of the state of Texas, that are 'known to be
producing citrus fruits and~bridle those engaged in producing
and marketing citrus fruits, in those three counties, with such
a law as the "Texas Citrus Marketing Act." If the regulation
could be said to be necessary and proper, under the police-.
power, then its application under the proposed Act, would ap-
ply to only the producers and marketers in A, B, and C counties,
while the producers and marketers of the same fruit under the
same circumstances in E,F, and G counties would be entitled
to market their fruit under their own conditions and set the~ir
own prices for which their fruits would be placed upon the mar-
ket.
        In 12 AMERICAN JURISPRUDENCE 144-146,   inclusive, it is
said:
       " 11478. APPLICATION OF LAW TO ALL MEMBERS. -
    A fundamental principle involved in classiflcatfon
    Is'that it must meet the requirement that a law
    shall affect alike all persons in the same class
    and under similar conditions. ~If a classification
    in legislation meets the prerequlsites'lndispensa-
    ble to the es,tabllshmentof a class that it be rea-
    sonable and not arbitrary, and be based upon sub-
    stantial distinctions with a proper relation to the
    objects classified and the purposes sought to be
    achieved, as long as the law operates alike on all
    members of the class which includes all persons
    and property similarly situated, it is not subject
    to any objections that it is special or class leg-
    islation, and Is not a violation of ,theFederal
    guaranty as to the equal protection of the laws.
    Hence, while classification Is proper, there must
    always be uniformity within the class. If persons
    under the same circumstances and conditions are
    treated differently, there is arbitrary discrimin-
    ation, and not classification.
Honorable Homer Leonard, Speaker, page 3         o-3363



      " 8 479.  COMPLETENESS OF INCLUSION OFMEMBERB.-
   In order for a classification to meet the require-
   ments of constitutionality, it must include or em-
   brace all persons who naturally belong to the class.
   Such classification must not be based on existing
   circumstances only or so constituted as to preclude
   additions to~the number included within a class,
   but must be of such a nature as to embrace all those
   who may thereafter be insimilar circumstances and
   conditions. Furthermore, all who are lfi situations
   and.circumstances relative to the subjects of the
   discriminatory legislation indistinguishable'from
   those of the members of the class must be brought
   under the influence of the law and treated by~~it
   in the same way as are the members of the class;
   It is also settled that no one~who does not proper-
   ly belong to a class may be Included therein.
       l'*****+*
               ."

       The same authority on pp- 151-153, Inclusive, says:
        ’ 8.481.   SUBSTANTIAL DIFFERENCES: PROPER RELA-
   TIONSHIP TO OBJECT. - The eneral rule is well set-
   tled bv unanimity of the auf horltles that a class-
   fficat?bn     to be ialid must rest upon material dif-
   ferences.between the persons Included in It and
   those~~excludedand, furthermore, must be-.basedupon
   substantial distinctions, As the rule has some-
   times been stated, the classification, in order to
   avoid the constltutlonal prohibition, must be founded
   upon pertinent and real differences, as distinguish-
   ed from Irrelevant and artificial ones. Therefore,
   any law that is made'applicable to one~class of cft-
   izens only must be based on some substantial dlffer-
   ence between the situation of that class and other
   Individuals to which it does not apply and must
   rest on some reason on which it can be defended.
   + * * so"

       In 16 CORPUS JURIS SECUMDUM 1004-5, inclusive, with ref-
erence to discrimination as to localities, it is said:
      "However, insofar as lt grants privileges to,
   or places burdens on, individuals OP limits or re-
   stricts their right, especially their right to
   engage in a particular business or occupation, a
   statute OP ordinance may be invalidated by arbitra-
   ry or unreasonable classification or,,dlscrimination
   In respect of territory or locality.
Honorable Homer Leonard, Speaker, page 4         o-3363


       Our Court of Criminal Appeals in the case of RAEDCLPR
vs. STATE, 36 S.W.~ (2d) 484, in holding an Act discrlminatdry
and as an unreasonable classification, which applied to only
certain counties of a certain population, and having to do
with the selection and disqualification of prospective jurors
by the jury commissioners, said:
       'There would seem to be no relation to a man
     fitness for a jury service and the size of popula-
     tion of the county In which he resides. + * +.
       "The Act under consideration, not only attempts
     to make a very small unit of population the basis
     for a method of selecting jurors which is different
     from the method prescribed by general law for other
     parts of the State, but also seeks to make ineligl-
     ble for such jury service those who may not desire
     to claim their exemption but who are qualified
     jurors under the general laws. We are constrained
     to hold that the Act is discriminatory and, there-
     fore, unconstitutional."
       In EX PARTE SIZEMORE, (Ct. Crim. App.) 8 S.W. (2d) 134,
the court said:
       "A law which makes different punishments follow
     the same identical criminal acts in different po-
     litical subaivlslons of Texas violates ~both our
     State and Federal Constltutlons. It fails toac-
     cord equal rights and equal protectlon of law, and
     a conviction under it Is not in due course of the
     land."                                             ._
       In Ef PARTE BAKER, (Ct. Cr. App.) 78 S.W. (2d) 610; an
attack was made upon the validity of a city ordinance which
required a much higher license fee to itinerate vendors of
certain products than those who distributed local made products
of the same class. The court said:
       "An ordinance which attempts to distinguish be-
   tween persons engaged in the same or like business
   merely on basis of their residence or the location
   .of their business houses is in contravention of the
   constitutional provisions hereinabove quoted. We
   think such ordinance whether it purports to be an
   exercise of the police power or the power to tax is
   discriminatory in that it is not based upon any rea-
   sonable classification. * * +.
Honorable Homer Leonard, Speaker, page 5          o-3363


       "It appears to us the ordinance under conslder-
    atlon was designed and its application would, If it
    were valid, establish a protective wall around bakeries
    located within the city of Temple and create's mon-
    opoly on the bakery business and deny to outsiders
    the same privileges and~equal rights unlessthey
    paid an annual license fee of Fifty Dollars."
       We think rules discussed are pertinent and applicable
to the construction of Section 22 of the proposed Act.
       We are, therefore, of the opinion that the proposed
"Texas Citrus Marketing Act", is violative of Section 1 of
Article 14 of ~theUnited States Constitution and Sections 3
and 19 of Artlcle1 of the Constltutlon of,Texas, as being an
unreasonable and arbitrary classification, dlscrlminating
against some producers of citrus fruit and favoring others
in the same class and denying those In the same class equal
protection of law.
       Since we are of the opinionthat Section 22 is contrary
to the fundamental law of the land, we do not believe that~It
Is necessary to pass upon the constltutionalitg of the remain-
der of the Act.
      We trust that we have answered your inquiry.
                               Yours very truly
                            ATTORNEY GRNRRAL OF TEXAS

                               By s/Harold McCracken
                                    Harold"McCracken
                                    Assistant
HC:ob:wc

APPROVED MAY 26, 1941
s/Grover Sellers
FIRST ASSISTANT
ATTORNEP GENERAL
Approved Opinion Committee By s/HWB Chairman