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*sharlu$ 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 regulatingthe affabs of oomtlem, contrary to the provisionsOS 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 populat1enof 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 precedlngFederal Census, and having an assessed valuatioaof clot loss than Twentyone Willloa ($21,000,000.00) Dollars accordlug to the last approved tax rolls, **are** hereb7 authorlsedto acquire by purchase or otherwisean airport not to exceed six hundred forty (640) acrea in **area** to be located not wre then five (5) riles from the heaviest populatedare&In the county.”

The populationof Uimklor County is 6,141 accdkdiig to the last precedl

"0 Federal Census and Winkler Couaty's tax valuation Is 41,284,474 accordingto the 1948 taxBon. Wm. B. Pool, page 2 (V-909)

rolls. According to the la,at precedingFederal Ceusus Winkler County 1s the only county in this State falling within the above classification.

Section56 of Article III of the Comtitutioa of Texas provides In part as follows:

"The Legislatureshall not, except as otherwiseprovided 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 prescribingthe powers and duties of officers, in counties, cities, towns, electionor school districts;

. o .'

We quote the followlugfrom our Opinion Ho, O-2221,which ,oplalon was upheldby 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 Inclusionof the part and exclusion of the balance upon characteristics peculiar to the part, which, consideringthe objectsand purposesof the law, afford reasonable ground for restrictingthe appllcatlon of the law'to the part S Classlflcatfon muat be reasouebleand uatural,not arbitrary and capricious. Arbitrarydesiguationis not classlflcatlou. The vice of local or special laws Is that they rest on arbitrarydes~lgnatlon; that they do not embraceand affect all of the class to which they are uaturallg**re** lated."

Ih County of Bexar v. Tyuan,l28Tex. 223, 97 S.W.26 467 (l-6) the Suprenm Courtof Texas announced the followingpr&lple which controls the armtterherein:
'Notwithstaudlng It Is true that the Legislaturemy classify countiesupon 8 basis of populationfor the purpose of flxlng compensation

of couutg aud precinctofficers,yet lu doing so the classlflcatloa must be based upou a real dlstluction, aud muat not be arbitraryor a device to giveHQP. 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 followlugfrom 0akl.e~ v. Kent.

trial "Point 2 challengessaid ruling of the oourt on the eplound that the bill Is wholLy unconstltutloual In that Sec. 3 thereof, &aVlag reference to the employmentand paymsnt of a deputy arsessor-collector of t-es, applies only to countieshavlug a, populationof 140,000 to 220,000 Inhabitants, accordlag to the 1940 Federal census, ao that 811 ether countiesare exxeluded and Jefferson County only ooms within such provision, amd so the provisionexaludss counties of leaser or greater populationfrom 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 violatesArt. 3, Sec. 56 of tlao fjt*te Constitutha, vtirnon’a Ann. St., forbiddingthe Legislatureto pass any law regulating the affairs of any such COUPty, craatlng offices oil pr*sc*$@,@gtk+ pewer or duties of oiflcem In eWtitlb8.

"Point 3 challengesthe court'saction in giving the peremptoryInstruction and refusing to enjoin the county treasurerand county auditor of JeffersonCounty from issuing, registeringand paying the salary of the purchaslugagent 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 creationand 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 populatiousare not permittedto exercise the power of appointinga purchasinga eat. That by mason of such situation3ec. t (a) Is arbitraryand discrlalnatory and but a looal or s#ecial law pasred under the guise ef the general statute and violativeof AI%.Bon. urn. E. Pool, page 4 (V-909)

III, Sec. 56, forbiddingthe Legislature passingany such law regulatingthe affairs of,any such county, creating offices or prescrlblng the powers or duties of the offlcers la counties

. . . "f&cause populationas a basis for classlfleatlon

has been sustaluedby the courts In respect to legislationon certain subjects, It has been assumed, erroneously, that populationbracketswill serve la all Instancesto avoid the condemnation of the Constitution. This mistaken assumptionproceeds from a failure to note that population has been sustainedas a basis for classlflcation only in those Instanceswhere It bore

a reasonablerelation to the objectsand purposes of the law and was founded upon raMonal differenceIn the necessitiesor conditions of the groups subjectedto different laws.~ Where it has been determinedthat, conslderlag the objects and purposes of the law, dlfferences in populationafford no retlonalbasis 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 specialand local."

We quote the following from Miller v. El Pas0 County, 136 Tex. 370, 150 S,W,2d 1000 m41) :

“The peculiar llmltatlonsemployedby the LegislatureIn this instance to segregate the class to be affectedby the legislation not only bears no substantialrelation to the objects sought to be accompllshed by the Act, but the purportedclgas attemped to be so segregatedIs, In fact, not
a class distinct in any substantial manner from others In this State. There Is nothing peculiarabout a county having a population of less than 125,000 nor more than 175,000 Inhabitants and containinga city with a populationof not less thaa 90,000 InQabltaats

that llarks

It a suitableaad peculiar field for the expendlngof publie funds for advertisingand prowtlng the growth and developmentof the county audBan. Wm. E. Pool, page 5 (V-909)

its county seat, as dlstlngulshedfror 

### othercountieshavfag substantially the'
same population

### or cltlos of similar size. The. slight variatloabetween the population of El Paaso County and Its principal city and other countiesand cities in the State does not distinguishIt In any manner that Is germane to the purpose of this particularlegislation. In other words, whateverdifferencethere Is In population does not appear to be material to the objects sou&t to be accomplished. After havlngcarefully consideredthe smtter,
we are convincedthat the attempted classlflcatioP~~ls

uareasenable

and bears no rolatiea to the eb j.ects sought to be accomplishedby the Act, and that as a con

### sequence

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 foregoingauthoritiesthat 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, applicableonly to counties with a populationbetween 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



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