R-470




BOG.     J.    Y.   B0ya
county        Auditor
Lubbock County
Lubbock, Texas
                                Opinion   No. v-225
Dear Sir:
                                Re:   Constitutionality 0.r
                                      S. B. 272, Acts of the
                                      50th Legislature, 1947.
          Your request for an opinion of this Department
on the above subject matter is as follows:
              "Senate Bill 272 which became law May 2,
         1947, affects salaries of all deputies, clerks
         and assistants of public officials of Lubbock
         County for current month. In view of this fact,
         will appreciate your opinion as to constitution-
         ality of such bill."
           S. B. 272, Acts of the 50th Legislature, 1947, is
 an Act amending Art. 3902, V.C.S., allowing additional com-
 pensation for deputies, clerks and assistants of district,
.county and precinct officials in counties of this State hav-
 ing a population of not less than 51,782 inhabitants ana not
 more than 52,500, according to the last preceding federal
 census. According to the last preceding federal census,
 Lubboak County is the only county in this State falling
 within the above~~classificati.on.
          Art. III, Sec. 56, of our State Constitution pro-
vides in part 8s follows:
              "The Legislature shall not, except as other-
         wise provided in this Constitution, pass any
         local or special laws, . . . regulating the af-
         fairs of counties, cities, towns, wards or school
         districts; . . . creating offices or prescribing
         the powers and duties of officers, in counties,
         cities, towns, election or school districts;
         . . ."
Hon. J. Y. Boyd - Page 2    (V-225)


          We quote the following from our Opinion No. O-2221,  ,/
which was upheld by the Court of Civil Appeals in the ease of ,'
Oakley v. Kent, 181 S.W. (2d) 919:
          "A law which applies only to a part Of a
     natural class of persons or things must predi-
     cate its inclusion of the part and exclusion
     of the balance upon characteristics peculiar to
     the part, which, considering the objects and pur-
     poses of the law, afford reasonable ground for
     restricting the application of the law to the
     part. Classification must be reasonable and
     natural, not arbitrary and capricious, Arbi-
     trary designation is not classification. The
     vice of local or special laws is that they rest
     on arbitrary designation; that they do not em-
     brace and affect all of the class to which they
     are naturally related. 25 Rawle C. L. ppa 815-816;
     12 Am. Jr. p* 146; Smith v. State (Ct,Cr.App,),
     49 S. W. (2d) 739; Randolph v. State, (Ct.Cr.
     App.), 36 S.W. (2d) 484; Clark v. Finley, 93
Tex. 171, 54 S.W. 343; . D 0n
          In the case of County of Bexar v. Tynans 97 S.W.
(2d) 467, the Supreme Court of.Texas announced the follow-
ing principle, which controls the matter herein:
          llNotwithstandingit is true that the Legis-
     lature may classify counties upon the basis of
     population for the purpose of fixing compensation
     of county and precinct officers, yet in doing so
     the classification must be based upon a real
     distinction, and must not be arbitrary or a de-
     vice to give what is in substance a local or
     special law the form of a general law."
          We quote the following from Oakley v. Kent,supra:
          "Point 2 challenges said ruling of the trial
     court on the ground that the bill is wholly un-
     constitutional in that Sec. 3 thereof, having re-
     ference to the employment and payment of a deputy
     assessor-collector of taxes, applies only to
     counties having a population of 140,000 to 22O;i
     OOCinhabitants, according to the 1940 Federal
     census,-so that all other counties are ex-
     cluded and Jefferson County only comes with-
     in such provision, and so the provision excludes
     counties or lesser or greater population from
Hon. J. Y. Boyd -   Page 3   (V-225)


     employment and paying a deputy assessor-collector
     or taxes, and for such reasons Sec. 3 is arbi-
     trary and discriminatory and is but a local or
     special law passed under the guise of a general
     statute and violates Art. 3, Sec. 56 of the
     State Constitution, Vernon's Ann. St., rorbia-
     ding the Legislature to pass any law regulating
    .~theaffairs of any such county, creating offices
     or prescribing the power or duties of officers
     in counties.
          “Point 3 challenges the court's action in
     giving the peremptory instruction and refusing
     to enjoin the county treasurer and county audi-
     tor of Jefferson County from issuing, register-
     ing and paying the salary of the purchasing
     agent for said county aocording to the provis-
     ions of Sec. 4(a) of said bill, because the bill
     is unconstitutional in that Sec. 4(a), having
     reference to the creation and payment of a county
     purchasing agent, applies to the 1940 Federal
     census so that all other counties are excluded
     and Jefferson County only comes within such pro-
     visions and so counties or lesser or greater
     population are not permitted to exercise the
     power of appointing a purchasing agent. That by
     reason..ofsuch situation Sec. 4(a) is arbitrary and
     discriminatory and but a local or special law pas-
     sed under the guise of the general statute and
     violative of Art. III, Sec. 56, forbidding the leg-
     islature passing any such law regulating the af-
     fairs of any such County, creating orrioes,o,rpre-
     scribing the powers or duties of the officers in
     counties. . .
          ulBeoause population as a basis for clas-
     sification has been sustained by the courts in
     respect to legislation on oertain subjects, it has
     been assumed, erroneously, that population brackets
     will serve in all instances to avoid the oondem-
     nation of the Constitution. This mistaken assump-
     tion proceeds from a failure to note that
     population has been sustained as a basis for
     olassification only in those instances where
     it bore a reasonable relation to the objects
     and purposes of the law and was founded upon
     rational difference in the necessities or
     conditions of the groups subjected to dirrer-
     ent laws. Where it has been determined that.
Han, J. Y. Boyd - Page 4   (V-225)


     considering the objects and purposes of the
     law, differences in population afford no ra-
     tional basis for discriminating between groups
     of the same natural class, classification on
     the basis of population has been termed arbi-
     trary selection, and the law has been held to
     be special and local. Randolph v. State,supra.
          "'Where population might have served as a
     rational basis for classification, if the ob-
     ject and purpose of the law had been to in-
     crease the compensation of county officers,
     since the purpose of the particular law was to
     lower such compensation the classifioation was
     held to be inverted and the law special and
     local. Bexar County v. Tynan, supra.* * *l
          "In view of the foregoing authorities it
     is our opinion that Section 4 of the act clear-
     ly violates the provisions of Article III, Sec-
     tion 56, of the State Constitution and is there-
     fore unconstitutional and void.n
          We quote the following from Miller, et al, v.
El Paso,County, (Sup. Ct.) 150 S.W.2d 1000:
          "It will be noted that the Act in question
     by its terms is made applicable only in those
     counties having a population of not less than
     125,000 nor more than 175,000 inhabitants, and
     containing a city having a population of not
     less than 90,000 inhabitants, as shown by the
     last preceding Federal census, The evidence
     shows, without dispute, that the only county
     within the State.coming within the provisions
     of the Act at the time of its adoption was El
     Paso county. The Legislature was doubtless
     cognizant of this fact. It was also oogni-
     zant Of the fact that another Federal census
     nould not be taken until 1940, and that as a
     consequence no other county would come within
     the terms of the Act for a period of rive
     years after its adoption. We must presume,
     therefore, that it was intended by the Legis-
     lature that said Act should apply only to El
     Paso County during said period of time. As
     a matter Of fact, no other county met the
     population requirements of the Act under the
     1940.census, and as a consequence El Paso
     County is the only county that will be affect-
     ed thereby until after 1950,
.




    Hon. J. Y. Boyd - Page 5   (V-225)


              We are therefore met at the outset with
         a law which, under facts well known at the
         time of its adoption, was applicable only to
         a single county. Clearly then it is a local
         law and must fall as such, unless it can be
         fairly said that the class so s'egregatedby
         the Act is a substantial class and has char-
         acteristics legitimately distinguishing it
         from the remainder of the State so as to require
         legislation peculiar thereto. In this instance
         the olassification is made to rest entirely on
         the population of the county and a city therein.
         Resort to population brackets for the purpose of
         classifying subjects for legislation is permis-
         sible where the spread of population is broad
         enough to include or segregate a substantial
         class, and where the population bears some real
         relation to the subject of legislation and affords
         a fair basis for the classification. It has been
         legitimately employed in fixing fees of offices
         in certain cases (Clark v. Finley, Comptroller,
         93 Tex.~l'll,178, 54 S.W. 343), but even then it
         is permissible only where the spread of population
         is substantial and is sufficient to include a real
         class with characteristics which reasonably dis-
         tinguish it from others as applied to the contem-
         plated legislation, and affords a fair basis for
         the olassification~ Bexsr County v. Tynan, 128
         Tex, 223, 97 S.W.2d,467."
               For additional authorities see Lewis Sutherland
    ~Statutory Constru&ion.(2nd ed,), p0 397 et seq; Ex Parte
    .Carson (Grim. App.) 159 S.W.2d 126; Jameson v. Smith
     161 S.W.2d 520; City of Ft.~Worth v. Bobbitt, 121 Tex..
    14, 36 S,W.2d 470, 41 S.W.2d 228; Supreme Lodge Benev-
     olent AssPn. v. Johnson, 98 Tex. 1, 81 S.W. 18; Smith
    v. State,~49 S.W.2d.739; Randolph v, State, 46 S.W.2d
404; Fritter v. West, 65 S.W.2d 414, writ refused;State
    v. Hall,.76 S,W.2d 880; Wood v. Marfa Ind. School Dist.,
    123 S.W.2d 429; Leonard v. Road Maintenance Dist. No. 1,
     187 Ark. 599, 61 S.W.2d 70.
              Since S. B. 272, Acts of the 50th Legislature, 1947,
    applies only to Lubbock County, it is our opinion, in view of
    the foregoing authorities, that the classification contained
    in said bill is not based on a real distinction, but is an
    arbitrary ClassificatiOu and is in substance a local or speo-
    ial law. Therefore, it is our opinion that S. B. 272 is un-
    constitutional and void,
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        Han, J. Y. Boyd - Page 6   (V-225)


                              SUMMARY
                  S. B. 272, Aots of the 50th Legislature,
             1947, a salary bill affecting only Lubbock
             County, violates Art. III, Sec. 56, of our
             State Constitution and is unconstitutional.
                                         Yours   very truly,
                                     ATTORNEYGENERAL       OF TEXAS



                                             John Reeves




                                     'ATTORNEY GENERAL
        JR:jrb