R-670

                                                    205
                      OF'PICE    OF
       THE ATTORNEY GENERAL
                     AUSTIN. TEUS
                       August 13, 1947

Hon. Tom A. Craven       opinion No. V-337
County Audltor
McLennan County         Re: Constltutlonalltyof
Waco, Texas                 11.B. 547, 50th Legls-
                            lature.
Dear Sir:
         Your letter to this Departmentreads in part
as follows:
         "I shall thank you to advise me wheth-
    er or not, in your opinion, House Bill #547,
    50th Legislature,entitled '&inAct amending
    McLennan County Road Law, Acts 1929, Forty-
    first legislature,First Called Session,
    page 70, chaptell34', 1s valid.
         'In the event you should Indicate that
    the House Bill #547 referred to Is invalid,
    I shrillthank you then to advise me whether
    or not, in your opinion, the McLennan CountY~~
    Road Law, Acts 1929, Forty-firstLegislature,
    First Called Session, page 70, chapter 34, is,
    valid."
          Before you??first question can be ariswered,it
becomes necesirarythat we'examine the driglnal Act -own
as th6 McLennan County Road Law, Acts 1929; Forty-first
Legisl&ture,First Called Sessl.on,.p. 70, oh. 34,'tid
ascertainwhether said Act in its original form is oon-
stltutlonal. If said Act is constitutional,then we be-
lieve that H. B. 547, 50th Legislature,entitled an Act
amending the McLennan County Road Law, Acts 1929, First
Called Session, p. 70, oh. 34, would be valid; otherwise
not. Crow v. Tinner, 47 S.W. (28) 391, affirmed 124
Tex. 368, 78 S.W. (26) 588.
          The original McLennan County Road Law, sup]?&,
is very long, and we shall refrain from setting the same
out In its entirety,but shall quote only those parts
which we deem pertinent.
       Hon. Tom A. Craven - Page 2   (V-337)
2$36


                 Sections 1 and 2 provide as follows:
                "Section 1. The county commi.ssl.onersl
           court of McLennan County, Texas, shall at a
           regular session, or calledmeeting thereof,
           within ninety days, after the passage and
           taking effect of this Act, employ a county
           road superintendentfor McLenusn County.
           Said superintendentshall have charge of all
           public highway construction,and maintenance,
           together with the building of bridges, and
           culverts, in McLennan County, Texas.
                "Sec. 2. Said Road Superintendentshall
           be a graduate civil engineer,experiencedand
           skilled In highway constructionand shall re-
           ceive as salary for his servicesa sum of not
           less than Twenty-fivehundred ($2 500.00) Dol-
           lars, nor more than Six Thousand {$6,000.00)
           Dollars per annum, payable monthly out of the
           General Fund of:'McLennanCounty upon warrants
           drawn by the County Judge, or Chairman of the
           Commlssloners',~Courtof said County."
                 Sections 3, 4 and 5 of said Act provide for the
       Road Superintendent'sbond and also set out his duties.
       The Act is composed of twenty-sevensections and provides,
       among other things, for the appointmentof,a consulting
       engineer, for the use of the county convicts in the con-
       struction of the bounty roads, for eminent domain proceed-
       ings, for the.employmentof two road keepers In each Com-
       missioner'sprecinct, and states that when bonds have been
       issued snd sold that the proceeds shall be used in con-
       structingroads and culverts and sets out the method of
       procedure which is to be followed;but nowhere does It
       provide for an election,for the levy and collectionof
       taxes for the purpose of malntatinlngand constructingpub-
       lic roads.or highways. It further provides that each
       oounty commissionershall be the road commlsslonerIn his
       respective precinct; shall issue a bond for $l,OOO.OO in
       addition to the regular bond, and that each county com-
       missioner of McLennan County shall receive as compensation
       forhis services as such road commissioner,in addition to
       the salary now allowed him under the general law 88 county
       commlssloner,the sum of $1800.00 per annum to be paid out
       of the general fund of McLennan County.
                 Article III, Sec. 56, of the Constitutionpro-
       vides, among other things, that the,'Leglslature
                                                      shall not,
Eon. Tom A. Craven - Page 3   (v-337)               2-97

except as otherwise provided in this Constitution,pass     ,
any local or special law authorizing:
         Regulating the affairs of counties,
     cities, towns, wards or school districts;
         AMhorlzlng   the laying out, opening,
     altering or maintaining of roads, highways,
     streets or alleys;
          Creating offices, or prescribingthe
     powers and duties of officers,in counties,
     cities, towns, election or school districts;
and that in all other cases where a general law can be
made applicable, "no local or special law shall be en-     I
acted" except "the preservationof the game and fish of
this State In certain localities."
          The pertinent portion of Article VIII,,Sec.9,    ; :
of the Constitutionreads as follows:
          ". . . and the Legislaturemay also
     authorize an additional annual ad valorem
     tax to be levied and collectedfor the fur-
     ther maintenanceof the publlc'roads;pro-
     vlded, that a majotiityof the qualifiedpro-:
     perty tax paying voters of the county voting
     at an election to be held for that purpose
     shall vote such tax, not to exceed fifteen             i
     (15) cents on the one hundred dollars valu-~~         ‘i
     atlon of the property subjedt to~taxatlonin
     iiutih'cotity.




          The effect of the last statementof Section 9
of Article VIII of the Constitution,above quoted, super-
cedes the above'quotatlonfrom Article III, Section 56,
supra, Insofar as It pertains to roads and highways. The
autho?ity conferredby Section 9, Article VIII, of the      I
Constitution,supra, l&not to enact special road laws       I
of all kinds for all purposes indiscriminately,but is
authority merely to pass local laws for the maintenance
of the public roads and highways.
         .Itwill be noted that in substancethe subject
matter of the McLennan County Road Law Is otherwisedealt
             Hon. Tom A. Craven - Page 4   (V-337)
       ax3

             with by general law.
                       Articles 6737 to 6739, V.C.S., Inclusive,
             provide for the appointmentof.road commissioners
             by the CommlfisionerslCourt, for the bond for such
             road commlsslonersand the duties to be performed.
                       Articles 6743-50, V.C.S., provide general-
             ly for the appointmentby the Commissioners’Court of
             a ‘road superintendent,for his oath and bond, his
             compensatlori,powers and duties. The duties.of the
             suserintendentprovided for In Article 6746 are eub-
             stantlallythe same as those set out in the McLennan
             County Road Law.
                       Article 6762, V.C.S., speclflsallyprbvides
             that in all countieshaK!ng aS many as 40,000 lnhabi-
             tants that the members of the C&nnlssloners’Court
             shall be ex officio road commissionersof their re-
             spectiveprecincts and that the Commissioners1Court
   1         shall have charge of the teams, tools and machinery
             belonging to the county and placed ln their hands by
j 1;         said Court,. They shall superintendthe laying.out of
             new roads, maklng or.changing of‘the roads, and build-
             ing of bridges under.ruIesadopted by the.Court;and
             with the further provision thateach Comu@ssioner
             shall first execute a bond of $l,OOO.OO.
                       Article 793, C.C.P., provides for the cornpen
             satlon or credit to be dllowed a prisoner for thislabo?
                        Article 794, C.C.P., provides for the use by
             the Commissioners’Cdurt of.the county convlOts’  to per,
             f oTm work on thenpublic roads df the county and..for
             guards over such cotivictti,and-all the.neoessary,pow-
             ers are.vestedin the Commisslbners’Court to prevent
; I          the escape of the convlats.
   /
                       Was the original Act to create a more Gffi-
             clent road system for McLennan County when there are
             no provisionsin the Bill fdr the,levy and collection
             of additionaltaxes for the constructianand mainten-
             ance of county roads? We think not. The Act simply
             m&kes provisionsfor certain things that are already
             provided for under,the general laws of this State such
             as the appointmentof road commissioners,road super-
             intendents,working of county convicts,together with
             the increase of the county commissioners’salaries
Hon. Tom A. Craven - Page 5   (w-337)


for performingthe regu&ar duties incumbentupon them
and without imposing any added duties or burdens upon
said county commissioners. This being true, it is our
opition that the law in question merely undertakesto
regulate county business contrary to the Constitution,
Article III, Section 56, and is not a local road law
for the maintenanceof public roads and highways. The
conclusionsreached here seem to be in harmony with
what Chief Justice Phillips said in Altgelt v. Guteelt,
109 Tex. 123, 201 S.W. 400, and quoted b Chief Justice
Alexander in Crow v. Tinner, 47 S.W. (269 391, at 393:
          "Ro doubt the Legislature,in the pas-
     sage of local road laws, may, withinproper
     bounds, provide compensationfor extra ser-
     vices to be performed by those officials
     . . . where uncontrolledby general laws and
     requiredby such~locallaws and directly con-
     netted with the maintenance of the public
     roads." (Affirmed124.Tex. 368, 78 S.W.(2d)
     588)
           The contents of the Act before the CourtIn
the Altgelt case were almost identicalwith those in:the
instant case, and were knownas the Bexsr County Road,Law.
The Act.ls  set out In 187 S~.W.22O.(Oplnionof the San
Antonio Court of Civil Appeals which was reversed,by~ the
above decision)
          In the case,,ofKitchens v. Roberts, 24 S.W&(2d)
464, writ refused, the constitutionalityof the Wood
County Road Law was in question, said Act providing that
each county commlsslonerof Wood County should be ex of-
ficio Road Supervisorof hls~respectiveprecinct, setting
out his duties as such, and providing for ah Increase of
the county commlsslonerlssalary for such servicesrender-
ed. The Court, ln constrningthe language used in the
Altgelt case, had this to say:
          "Evidently,~we think, what the Chief JUS-
     tice meant was that the Legislaturemight by
     a special or looal.law impose duties with re-
     ference to publlc'roads,notimposed.bythe
     general law on a county commissioner,and in
     such special or local law provlde~forcompen-
     sation to the oommlssionerfor the extra>ser-
     vices required of,him. But the Legislature
     did not undertake to do that in the instant
     case, but undertook Instead to do the thing
     the court determined in the Altgelt-Gutseit
210   Hon. Tom A. Craven - Page 6   b-337)



           Case it could not do -- that is ‘to legls-
           late upon the subject of their [county oom-
           iiisslonera~)generel oompensatlonor to
           alter the general’lawsgoverning It.‘”
      The case of Jameson v. smith, 161 S.W. (26) 520, writ re-
      fused, is to the same effect.
                As stated by the Courts ln all of the above
      cases, there is no doubt that local road laws may be
      passed providing for compensationfor extra services
      rendered by officialswhere uncontrolledby general laws,
      lf such is directly connectedwith or Incidentalto the
      maintenanceof the public roads.
                 Here, such la not the case. It appears that
       the Act attempts to do indirectly somethingwhich cannot
      be done directly,and is In contraventionof Article III,
      Section 56, supra. fin fatt, everythingfor which this
      Act provides la also set out In Ohs general laws as here-
      fnbefore set out. It is not one which, on ita face, aan
      be successfullysaid is “to create a more efficientroad
       system for McLennan County” in the sense’asprovided
      un&er the Constitution’.We think it clear that the Leg-
      islature passe&this law without any lhtentlonof con-
       stitutingthe same as.8 local or special’roadlaw for the
      maintenanceof’publlcroads and highways #.thln the mean-
       Ing of the provision of the Constltutloti,
                                                ArtIsle VIII,,
      Section 9, supra. If it were the desiFe, purpose-.and in-
      ,tentlonof the Legislatureto pass such a law, it could
      have easily’manifested the’same by incorporatingtherein
      f.&ctsor.elementssufficientto make It fall within that
       term as’providedby the ‘Constitution.In Its,failure to
       %o provide,we atieimpelled to hold thatthe’ originalAct
       as passed in 1929, by the-FortgbflrstLegislature,known
       as the McLennan County Road Law, la unconstitutional.
                R. B. Ho. 547, Acts of the,50th Legislature,
      R. S.,,1947, provides:
                “Sectlon~1. That the McLennan county
           Road Law, Acts, 1929, Fort*-firstLegisla-
           ture, First Called Session, page 70, Chapter
           34, be and the same is hereby amended by
           adding a new Section following Section 22,
           tb be designated lSq?.tlon228,’ and to read
           as follows:
Hon. Tom A. Craven - Page 7
                                                    23.1
                              (v-3371



          “‘Section22a. The_ Comaissloners
                               .    ._ . -. court
     of McLennan County Is nereoy auwrlaea   to
     allow each Commlsslonera sum not to exceed
     Fifty Dollars ($50) per month for traveling
     expenses and depreciationon his automobile
     while traveling on official business in the
     County of McLennsn In connectionwith the
     maintenanceand supervisionof the public
     roads and highways in said County.’
          “Sec. 2. The fact that in the County
     affectedby this Act there is a great need
     that the County pay the expenses of the
     County Commlasionersas provided for In
     this Act on account of large bond issues
     voted and sold for road and bridge purposes,
     thus greatly Increasingthe necessity of
     such County Commissionerstraveling from
     place to place, creates an emergency and an
     imperativepublic necessity demanding that
     the ConstitutionalRule requiring bills to
     be read on three several days In each House
     be suspended,and said Rule is hereby sus-
     pended, and this Act shall take effect and
     be in force from and after Its passage, and
     it is so enacted.”
          In view of the answer in the first question,
it naturallyfollovs that H. B. No. 547 of the 50th Leg-
islature, is also unconstitutionalfor the reason that
it EticfOUQti
            tQ amand WA ULUlQllfitit-    &dL, Which_ISE??
not.legally be done. If, on the other hand, Ii.B. 547,
suptia,is c6ntildered separatelyfrom the origlnalActs
of 1929, supra, it is stlll~unconstitutlonal and comes
within the purview of Opinion No. O-4162 of this Depart-
ment, a copy of which we are herewith enclosing.
          We wish to ca.11to your attention that this
Department~wascontact@dby one of your representatives
with reference to drafting a bill which would Increase
the allowanceto the commissionersfor expenseswhile
traveling outside the county on official business. One
of the assistantsof this Depsztment advised that such
a bill should be drawn amending Section la, H. B. 84,
49th Legislature,R.S., 1945, which would be a general
law and, therefore,would be constitutional. Eowever,
we were not asked to pass upon the constitutionalityof
H. B. No. 547, supra, and, as is the policy of this of-
fice, when said bill was drawn we appended thereto the
212   Hon. Tom A.   Creven - Page 8    (V-337)


      following:
                "It Is understood that preparationof
           this proposed draft is no indicationwhat-
           ever that its substance,policy or constitu-
           tionalityis approved or ptssed on by the
           Attorney General's office.
                                  SUMMARY
                The McLennan County Road Law, Acts
           1929, Forty-firstLegislature,First Called
           Session, pa,ge70, chapter 34, is uncorsti-
           tutional,being in violation of Sec. 56,
           Art. III, of the Constitution. Altgelt v.
           Gutzeit, 109 Tex. 123, 201 3-W. 400.
                Ii.B. No. 547 of the 50th Legislature.
           amending the above Act, is also unconstitu-
           tional since It attempts to amend an invalid
           Act.
                                         Very truly yours ~




      BA:djm                             Assistant
      Enclcsure




                                      ATTORNEY GENERAL