PRICE DANIEL 

AURTIN 11. I'Exas 

ATTORNEY GENERAL 

September 20, 1949 

xou. UB. r. PO01 OpllIloa x80. v-909. 

COuleJ Attoraey 

Ylnkler CQuntiJ Re: The constitutionality 

Kermit, Texas of 5.B. 463, 5lst Legislature, relative to 

purchaase of an airport 

la counti*s harlu$ a 

6141 to 6150 poptiaDear Sir: tion. 

Referanise i* tie to your recent request which 

r8ads In part au follew~: 

fart 

"The undersigned rerpnctfully re uests 

ain oplnloa from our office es to whe her 

Senate Bill Ro. 7163 (Art. 1581d, R.C ! ) as 

parsod by the 51st Leglslaturet, Is v&i and 

unconstltutloarl as a local or special law 

regulating the affabs of oomtlem, contrary to the provisions OS Article 3, Seatlon 56 of our state oonatltution.H 

Section 1 of Senate Bill Ro. 463, Acts of the 

Legislature, Regular Rasslon, 1949, is as .rdmfs: 

"5ection 1. All counties la this state 

having a populat1en of not less thaq slx 

thousand one hundred fortyous (6,141) and 

not wro than sk~thousand one hundred iiity (6,150) lohabltgts aacordlug to the lalrt 

precedlng Federal Census, and having an assessed valuatioa of clot loss than Twentyone Willloa ($21,000,000.00) Dollars accordlug to the last approved tax rolls, are hereb7 authorlsed to acquire by purchase or 

otherwise an airport not to exceed six hundred forty (640) acrea in area to be located not wre then five (5) riles from the 

heaviest populated are&In the county.” 

The population of Uimklor County is 6,141 accdkdiig to 

the last precedl 

"0 

Federal Census and Winkler Couaty's 

tax valuation Is 41,284,474 according to the 1948 tax 
Bon. Wm. B. Pool, page 2 (V-909) 

rolls. According to the la,at preceding Federal Ceusus 

Winkler County 1s the only county in this State falling 

within the above classification. 

Section 56 of Article III of the Comtitutioa 

of Texas provides In part as follows: 

"The Legislature shall not, except as 

otherwise provided In this Constitution, 

pass any local or special laws, . D . regulating the affairs of counties, cities, 

towns, wards or school districts; 0 . S 

creating offices or prescribing the powers 

and duties of officers, in counties, cities, 

towns, election or school districts; . o .' 

We quote the followlug from our Opinion Ho, 

O-2221, which ,oplalon was upheld by 8 Texas Court of 

Civil A peals in the case of Oakley v. Kent, 181 S.W.26 

919 (19&4) : 

"A law which applies ouly to a part of 

a uatural class of persons or things must 

predicate Its Inclusion of the part and exclusion of the balance upon characteristics 

peculiar to the part, which, considering the 

objects and purposes of the law, afford reasonable ground for restricting the appllcatlon of the law'to the part S Classlflcatfon 

muat be reasoueble and uatural, not arbitrary 

and capricious. Arbitrary desiguation is not 

classlflcatlou. The vice of local or special 

laws Is that they rest on arbitrary des~lgnatlon; that they do not embrace and affect all 

of the class to which they are uaturallg related." 

Ih County of Bexar v. Tyuan,l28 Tex. 223, 97 

S.W.26 467 (l-6) the Suprenm Courtof Texas announced 

the following pr&lple which controls the armtter herein: 

'Notwithstaudlng It Is true that the 

Legislature my classify counties upon 8 

basis of population for the purpose of flxlng compensation of couutg aud precinct officers, yet lu doing so the classlflcatloa 

must be based upou a real dlstluction, aud 

muat not be arbitrary or a device to give 
HQP. wk. r. Pool, page 3 (v-909) 

what is In substaoce a local or special law 

the form of a general law." 

supra : 

We quote the followlug from 0akl.e~ v. Kent. 

trial 

"Point 2 challenges said ruling of the 

oourt on the eplound that the bill Is 

wholLy unconstltutloual In that Sec. 3 thereof, &aVlag reference to the employment and 

paymsnt of a deputy arsessor-collector of 

t-es, applies only to counties havlug a, 

population of 140,000 to 220,000 Inhabitants, 

accordlag to the 1940 Federal census, ao that 

811 ether counties are exxeluded and Jefferson County only ooms within such provision, 

amd so the provision exaludss counties of 

leaser or greater population from employment 

and paying a deputy assessor-collector of 

taxes, and for such reasons Sec. 3 1s arbitrary and dlscrlmlnatory and Is but a local 

or sp@clal law paesed under the guise of a 

general statute aad violates Art. 3, Sec. 

56 of tlao fjt*te Constitutha, vtirnon’a Ann. 

St., forbidding the Legislature to pass any 

law regulating the affairs of any such COUPty, craatlng offices oil pr*sc*$@,@g tk+ pewer or duties of oiflcem In eWtitlb8. 

"Point 3 challenges the court's action 

in giving the peremptory Instruction and refusing to enjoin the county treasurer and 

county auditor of Jefferson County from issuing, registering and paying the salary of 

the purchaslug agent for said couaty accord1116 to the ~ovlslons of 3s~. 4 (a) of said 

blll, because the bill Is unconstitutional 

In that &K.. 4 (a), having reference to the 

creation and payment of a county purchasing 

a&sat, &p&lea to the 1940 Federal census so 

tbst s&1 &her oouatles are exxalnded and 

Jsffarsoa:~Gounty only aoma withha such provia@ns and so counties of lesser or greater 

populatious are not permitted to exercise 

the power of appointing a purchasing a eat. 

That by mason of such situation 3ec. t (a) 

Is arbitrary and discrlalnatory and but a 

looal or s#ecial law pasred under the guise 

ef the general statute and violative of AI%. 
Bon. urn. E. Pool, page 4 (V-909) 

III, Sec. 56, forbidding the Legislature 

passing any such law regulating the affairs 

of,any such county, creating offices or prescrlblng the powers or duties of the offlcers la counties . . . 

"f&cause population as a basis for 

classlfleatlon has been sustalued by the 

courts In respect to legislation on certain 

subjects, It has been assumed, erroneously, 

that population brackets will serve la all 

Instances to avoid the condemnation of the 

Constitution. This mistaken assumption proceeds from a failure to note that population 

has been sustained as a basis for classlflcation only in those Instances where It bore 

a reasonable relation to the objects and purposes of the law and was founded upon raMonal difference In the necessities or conditions 

of the groups subjected to different laws.~ 

Where it has been determined that, conslderlag the objects and purposes of the law, dlfferences in population afford no retlonal basis for dlscrlmlnating between groups of the 

same natural class, classlflcatlon on the basis of population has been termed arbitrary 

selection, and the law has been held to be 

special and local." 

We quote the following from Miller v. El Pas0 

County, 136 Tex. 370, 150 S,W,2d 1000 m41) : 

“The peculiar llmltatlons employed by 

the Legislature In this instance to segregate the class to be affected by the legislation not only bears no substantial relation to the objects sought to be accompllshed by the Act, but the purported clgas attemped to be so segregated Is, In fact, not 

a class distinct in any substantial manner 

from others In this State. There Is nothing peculiar about a county having a population of less than 125,000 nor more than 

175,000 Inhabitants and containing a city 

with a population of not less thaa 90,000 

InQabltaats that llarks It a suitable aad 

peculiar field for the expendlng of publie 

funds for advertising and prowtlng the 

growth and development of the county aud 
Ban. Wm. E. Pool, page 5 (V-909) 

its county seat, as dlstlngulshed fror 

other counties havfag substantially the' 

same population or cltlos of similar size. 

The. slight variatloa between the population of El Paaso County and Its principal 

city and other counties and cities in the 

State does not distinguish It In any manner that Is germane to the purpose of this 

particular legislation. In other words, 

whatever difference there Is In population 

does not appear to be material to the objects sou&t to be accomplished. After 

havlngcarefully considered the smtter, 

we are convinced that the attempted classlflcatioP~~ls uareasenable and bears no 

rolatiea to the eb j.ects sought to be accomplished by the Act, and that as a consequence the Act Is void." 

Since Senate Bill 463 of the 51ti &eglslature 

19$9 applies only to Wlnkler County, It Is our opinion, 

la view of the foregoing authorities that the classlfleation contained In said bill Is not based on a real 

Qlstlnctlon, but is an arbitrary classifl~atlon and Is 

¶im substance a local or special law. Therefore, It is 

&&'oplnion that Senate I3111 463 Is unconstltutloaal~. 

Senate Bill 463, Acts of the 51st &eglslature, 1949, applicable only to counties with a population between 6141 and 

6150 according to the last census, and affeet1 

2 

08ly Winkler County, violates Ssction.5 Article III of the Texas Constltutlon &d Is unconstitutional as a local 

and special law. 

Yovs vary truly, 

ATTORRBY OBRBRAL OF TEXAS 

BY 

BA:bhzmw Aeiistait