GROVER SELLERS AUSTIN ,,.T~xaw XXX-xXxX ATIP0RNW-Y C-EBTCWAI.

Honorable Shelby K. Long County Attorney Jefferson County Beaumont, Texas
Dear Sir: Opinion No. O-5326 Re: Constitutiona:lity of Senate'Sill No. 262, Acts of'the 48th Legislature

Your ment letter of May 21, 1943, requesting the opinion of this departon the above statedmatter reads in part as follows: "This office has a request for an opinion as to the constitutionality of Section Three of the above Senate Bill, and because of Section Five we would like to have your opinion covering the constitutionalityof the entire Bill. In the event that some section shall be held unconstitutional,then, in your opinion, is the whole Bill invalidbecause of Section Five.

"In connectionwith this I wish to callyour attention to cases which I think bear on this question: "City .ofFort Worth v. Bobbitt,~ 41 S.W. 288: "Millerv, El Paso County, 150 S.W. 1000; "Tinnervs. Crow, 78 S.W. (2) 588. Qood V. Marfa Ind. Sch..Dist. 14i S.W. (2) 590; "Bexar County v. Tynan, 97 S.W. (2) 467.
I believe that the lastmentioned case containsmore information and law in point than the other cases,cited.
"Please furnishme this opinion as soon as possible, as the effective date is June lst, and we would like to know as to the constitutionalityof this Bill before putting it in operation in this county. " 11

....... Senate Bill No. 262;Acts of the 48th Legislature,Regular Session, 1943, is an act "fixing the compensationof certain designated county officers in certain counties- ,providing for the creationand operationHonorable Shelby K. Long, page 2 0-5326

of certrin offices in certain: counties;providing.themethods ant? means by which certain officers in certain designated counties shallbe selected and compensated;declaring certain acts, contained in Section 4, to be unlawful;prescribing a penalty for the violation of the provisions of Section 4 of this Act; providing a saving clause; repealing all laws or parts of laws in conflict,and declaring an emergency.rf Sections 4 and 

### 5 of Senate Bill No. 262, supra, read as follows:
"Sec. 4. (a) In said counties in this state having a tion of more than one hundred forty thousand (140,000 Populaand less than two hundred twenty thousand (220,000)inhabitants according to the last preceding or any future Federal Census, where the Federal Governmenthas authorized the construction of large synthetic rubber plants in addition to vast ship building enterprises,additional duties have been placed upon county officers of such counties due to such construction, necessitatingand making it economicallynecessary that there be a centralpurchasing agency for such counties,and therefore a majority of a board composed of the Judges of the District Courts and the County Judge shall appoint a County Purchasing Agent. The County PurchasingAgent shallhold office for a term of two (2)years unless removed for cause. He shall execute a bond in the sum of Ten Thousand ($lO,OOO.OO) Dollars, payable to said county, for the faithfulperformance of his duties. He shall receive an annual salary,ofnot less than Three Thousand ('3,OOO.OO) Dollars nor more than Fortytwo hundred ($42OO.OO ? D,ollars,

payable in equal monthly installmentsout of the County General Fund by warrant drawn on the County Treasurerby,the County Auditor, Said Purchasing Agent may have suchhelp, equipment, supplies and traveling expenses,with the approval of a majority of said Board of Judges, as they may deem advisable, the amount of expenses to he approved by a majority of said Board and paid out of the County General Fund by warrant drawn on the County Treasurer by the CountyAuditor. "(b)All equipment,materials, and supplies,together ~withthe rep.irs of same, required,used or to be paid for out of any County Fund, shallbe purchasedby the County Purchasing Agent, upon written specificationsand upon requisitions submittedby the county official or department requiring same. So far as practicable, suchpurchases for any office or department shallbe in amounts calculated to be adequate for one year's needs. 'Where the total considerationon any contract is likely to be in excess of One Hundred Fifty ($.fjO.OO) Dollars, purchases shallbe made on the basis of the lowest and best bid, iliththe right to reject any or all bids, and a sufficientbidder's bond may be requi,red.A complete recordIionorable~Shelby K. Long; page 3 O-5326

of bids and purchasecontracts awarded shallbe kept on file for not less than ten (10)years. In making suchpurchases the County PurchasingAgent shall contract in the name of the county. "(c)When delivery is made on any purchase or repair dark, the County PurchasingAgent shall secure from the county officer or departmenthead receiving the same a receivingmemorandum in triplicate, certifying that the equipment,materials, supplies, or repairshave been receiged in good order and according to specifications. Such receivingmemorandum shall be attached to the respective invoice, rendered in triplicate, when such invoice is approved by the County PurchasingAgent. A copy of each of the receivingmemorandum and the approved invoice shallbe forwarded to the County Auditor, and a copy each shall be kept on file in the office of the County PurchasingAgent for not less than ten (10)years. R(d) The County PurchasingAgent shallprepare and keep a perpetual inventoryof all property of the county for each department and office. A copy of such inventoryas of July 1st of each year shall be furnished the CommissionersCourt and the CountyAuditory not later than the followingJuly 20th. It shall be the duty of the County Purchasing Agent to-transfer equipment, materials, and supplies from one department or office to another in the interestof efficiency and economy. "(e)All purchases made by suchAgent shallbe paid for by warrants drawn by the CountyAuditor on the County Treasurer as now providedby law. v(f) It shallbn unlawful for any.person to make any purchases of equipment,mgterials, suppliesA~~,'tre~~~r~of~~r~~~ts",~~il other than the County Purchasing be approvedby the County Auditor ?n p;yment for any purchase not made by suchAgent. "(g)Any person violating any of the provisions of Section 4 of this Act shallbe deemed uilty of a misdemeanor, and upon conviction thereof shallbe sined not less !thanTwo Hundred (4b200.00)

Dollars nor more than One Thousand ($l;OOO.OO) Dollars, or imprisoned in the county jail of said c not less than thirty (30)days nor more than one (1'3 unty for year, or by both such fine and imprisonment.
"Sec. 5. If any part of this Act shallbe held to be unconstitutional, then all the Act shall be unconstitutional, The Legislaturehereby declares that it would not have passed the remainingparts of this Act if it had known that suchpart or parts would be declared unconstitutional."Honorable Shelby K. Long, page 4 O-53.26

It is clear that the law of the counties to which the powers and duties of under considerationregulates the affairs it applies, officers. creates offices, and prescribes

a special and local law in violation Is it a general law, or is it
III, Section 56? of the provisions of Article

Article III, Section 56 of the State Constitutionprovides as follows:
"The L,egislature

shall not, 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;
"

. . . . . "Creating offices, orprescribing the officers, in counties, cities, towns, districts;
" 1,

. . . . . powers and duties of election or school

Generally speaking it is stated in our opinionNo. O-2221:
"A lawwhich applies only to a part of a natural class of persons or thingsmust predicate its inclusion of the part and exclusion of the balance upon characteristicspeculiar to the part, which considering the objects and purposes of the law, afford reasonable ground for restricting the application of the law to the part. Classificationmust be reasonable and natural, not arhitrary and capricious. Arbitrary designation is not classification.~The vice of local or special laws is that they rest on arbitrary designation; that they do not embrace and affect all of the class to Irhich they are naturally related. 25 R.C.L. pp. 8'15-816; 12 Am. Jur. p. 146; Smith v. State (Ct.Cr. App.), 49 S.>d.(2d)739; Randolph V. State, (Ct.Cr. A?p.), 36 S.;r.(2d)484; Clark v. Finley, 93 Tex. 171, 54 S&i. 343; City of Ft. Worth v. Bobbitt, 121 Tex. 14, 36 S.W. (2d)470, 41 S.W. (2d) 228; Bexar Countyv. Tynan, 128 Tex. 223, 97 S.W. (2d)467.
"Becausepopulation as a basis for classificationhas been sustainedby the courts in respect to legislationon certain subjects, it has been assumed, erroneously, that pupulation bracketswill serve in all instancesto avoid the condemnation of the Constitution. This mistaken assumptionproceeds from a failure to note that ~population has been sustainedas a basis for classificationonly in those instanceswhere it bore. ”

Honorable Shelby K. Longi Page 5 Q-5326

a reasonable relation to the objects and purposes of the law and was founded upon rational difference in the necessities or conditions of the Eroups subjected to different laws, Where it has been determ ned that, considering the objects and purposes of the law, differences in population afford no .rational basis for discriminatingbetween Proups of the same natural class, classificationon the basis 02 populationhas been termed arbitrary selection,and the law has been held to be special and local. Randolph v. State, supra. Where populationmight have served as a rational basis for classification, if the object and purpose of the law had been to increase the compensationof county officers, since the purpose of the particular law was to lowersuch compensation the classificationwas held to be invertedand the law special and local. Bexar County vb Tynan, supra.

One of the objects and purpoaes of the law under consideration is to permit counties to appoint a purchasingagent, A natural class, of course, includesall counties in the state. This law extends such power only to thosecounties havinga population, according to the last preceding Federal Census or any future Federal Census, of not inore .thPn-ll+Q,CCQ gr riiore - . 'W than 220,000 inhabitants, $ .9 he only countymeeting'these requirements, at the time of the passage of the law, was Jefferson County.
As heretofore stated, Section 4 of the law under considerationapplies only to countieshaving a population of 140,000 inhabitants to 220,000 inhabitantsaccording to the 1940 Federal Census. Therefore! Jefferson County comeswithin the prov,$sions of the above mentloned,section, Oounties oftlesser or greaterpopulation are not premitted to exercise the power of appointing a purchasing agent by said Senate Bill No. 262‘ We have failed to find any general statuteauthorizing oounties to employ or appoint purchasing agents. It is our opinion that the classification is a mere designationwhich is no classificationat all, but, on the contrary, is invertedand discriminatoryas a law considered by the Supreme Court in the Tynan :oase,supra v. El.Paso County, (Also see the case of Miller et al., 150 S.N. (2j 1000)‘ Section 4 of the act createsthe office of purchasing agent and prescribes the powers and duties of the officer holding such office,
If population affords a ground for creating the office of County PurchasingAgent, it must be upon one of two theories: (1)The smalle'r

the population of the County, the greater the need of such an office,Honorable Shelby E. Long, page 6 O-5326

(2)The greater~thepopulation of the County,, the greater the need of suchan off,ice.
The bracket is from 140,000 to 220,000. Upon the first theory the law is arbitrary and discriminatorybecause itexcludes counties below 140,000,which would have a greater need than the counties in the bracket. Upon the second theory the law is likewise arbitrary and discriminatory in that it does not embrace countieshaving a population above 220,000~,~ which countieswould have a greater need for a purchasing agent than countieswithin the bracket.
In view of the foregoing authorities it ia our opinion that Section 4.60f the act clearlyviolates the provisions of Article III, Section of the State Constitutionand is therefore unconstitutionaland void. It is our further opinion that in view of Section 5 of said Act, the entireAct is of no force and effect, aa'the Legislature declares in effect that it would not have passed the remainingparts of the Act had it known any part or parts thereofwould be declared unconstitutional.
We enclose herewith a copy of our opinionNo. O-2221.
Yours very truly
ATTORNEY GENERAL~OFTEXAS

AW:mp;ml By (s)Ardell Williams Assistant

APPROVED Jun. 9, 1943 (s)Grover Sellers (ThisOpinion Considered and approved in Limited Conference) First AssistantAttorney General APPROVED Opinion Committee By B.W.B. Chairman