, 

THEA-~T~~EY GENERAL 

OFTEXAS 

GERALD C. MANN AUSTINI~.TEXAR 

Ax-r"RNmcY GSZXUE-I. 

Honorable Walter M, Hilliard 

County Attorney 

Burleson County 

Caldwell, Texas 

Dear Sir: 

Opinion No, O-2534 

Re: Constitutionality of Senate Bill 

470, Acts of the 46th Legislature, 

1939 0 

Your letter of July 29, 1940, requesting~an opinion of 

this Department on the question as is herein stated has been 

received. 

We quote from your letter as follows: 

"Is Senate Bill No, 470 of the 46th Legislature 

unconstitutional because of the following reasons? 

"The Statute violates Art. 3, Sec. 56, of the 

Constitution of the State of Texas in that it is a 

Special Law. The law is not made applicable only to 

a part of a natural class of people whose characteristics 

are peculiar to the part, but the law applies to people 

of different classes and of separate and distinct ctiaracteristics in that approximatelg~four-fifths of the people 

affected are residents of an incorporated city and the 

remaining one-fifth are residents outside of said incorporated city. 

"The Statute is unconstitutional and violates The 

Constitution of the State of Texas in that it is highly 

discriminatory, The application of the Statutes favors 

the residents of the incorporated city and discriminates 

against the residents living outside the limits of said 

city. 

"Kindly advise as to the constitutionality of the 

Statute." 

Senate Bill No. 470, Acts of the 46th Legislature, Regular Session, 1939, reads as follows: 
. 

Honorable Walter M. Hilllard, Page 2 O-2534 

"SECTION 1, In any independent school district 

having and including within its limits a city or town 

which, acoording to the then latest Federal Census, had 

a population of not fewer than seventeen hundred twentyone 1,721 and not more than seventeen hundred fiftgone t 1,751 1 inhabitants,and in all independent school 

districts having territory located in as many as three 

(3) counties and containing a county seat town with a 

population of not less than four thousand two hundred 

(4,200) and not more than four thousand two hundred 

seventy-five (4,275) as shown by the last preceding 

or any future Federal Census, the governing body thereof 

shall have the power to levy and cause to be collected 

the annual taxes herein authorized, subject to the followin provisions: 

"(1) For the maintenance of the public schools therein 

an ad valorem tax not to exceed Ninety One-hundredths 

($0.90) of a Dollar on the One Hundred ($lOO,OO) Dollars 

valuation of taxable property in the district; 

"(2) For the purchase, construction, repair or-equipment of publics free school buildings within the limits~ of-- 

such district and the purchase of necessary sites therefor; 

an ad valorem tax not to exceed Sixty One-hundredths ~($0.60) 

of a Dollar on the One Hundred ($100.00) Dollars valuation 

of taxable property in 

payment of the current 

ing fund sufficient to 

bonds of such distric,t 

issued; 

the,district; such tax to be fork the 

interest on and to provide a sinkpay the principal of the outstanding 

and any bonds hereafter lawfully 

"(3) The amount of maintenance tax together with the 

amount of bond tax of any such district shall never exceed 

One and 50/100 ($1.50) Dollars on the One Hundred ($lOO'.OO) 

Dollars valuation of taxable property within such distr~ict; 

and if the rat,e of bond tax together with the rate of maintenance tax voted or levied in any year in the district 

shall at any time exceed One and 50/100 ($la50) Dollars on 

the One Hundred ($100.00) Dollars valuation, such bond tax 

shall operate to reduce the maintenance tax to the difference between~~the rate of the bond tax and One and 50/100 

($1*50) Dollars." 

Section 56, Article 3, of the State Constitution reads 

in part as follows: 

"The Legislature shall not, except as otherwise' 

provided in this Constitution, pass any local or special 

laws, authorizing . . . regulating the affairs of coun- 
. 

Honorable Walter M. Hllliard, Page 3 O-2534 

ties, cities, towns, wards or school districts; ..-~- 

and in all other cases where a general law can be made 

applicable, no local or special laws shall be enacted; 

provided, that nothing herein contained shall be construed to prohibit the Legislature from passing special 

laws for the preservation of game and fish in this State 

in certain localities." 

The case of Smith v, State, 49 S-W, (2d) 739, holds in 

effect that if substantial reason for classifying municipalities by population appears, such classifica%ion and legislation 

applicable to such classification is generally sustained, How 

ever, the constitutional prohibition against special laws cannot be evaded by making laws applicable to a pretended class, 

and that a statute classifying municipalities by population is 

"special" if the population does no% afford a fair basis for 

classification; that the statute merely designates a single 

municipality under the guise of classification by population; 

and that a valid classification of municipalities by population must not exclude other municipalities from entering such 

classification or attaining the specified population. 

We quote from this case as follows: 

"In this state it is the rule that the Legislature 

cannot evade the prohibition of the Constitution as to 

special laws by making a law applicable to a pretended 

class, which Is, in fact, no class. Clark v. Finley 

supra. The courts in other jurisdictions have given 

effect to the same principle, Corn. v. Patton;88 Pa, 

258; Board of Com'rs of Owen County et al. v. Spangler 

et al., 159 Ind. 575, 65 N,E. 743. In Clark v. Finley, 

supra= the Supreme Cour,t of our state said: 'In so far 

as the courts which undertake to define the basis upon 

which the classification must rest hold that the legislature cannot, by a pretended classification, evade a 

constitutional restriction, we fully concur with them. 

But if they hold that a classification which does not 

manifest a purpose to evade the constitution is not sufficient to support a statute as e general law merely because, 

"'In the court's opinion, the classification is unreasonable, we are not prepared to concur. To what class or 

classes of persons or things a s%a%ute.should apply is, 

as a general rule, a legislative question. When the 

intent of the legislature is clear, the policy of the 

law is a matter which does not concern the courts.' 

If the classification of cities or counties is based 

on population, whether an act is to be regarded as 

special, and whether its operation is uniform throughout 

the state, depend upon whether population affords a fair 
Honorable Walter M. Hilllard, Page 4 O-2534 

basis for the classlfica%ion with reference to the matters 

to which it relates, and whether the result it accomplishes 

is in fact .a real cla~sifice%ion upon that basis, and not 

a designation of a single city or county to which alone 

it shall apply, under the guise of such classification, 

;;;k;r-Washington Co. v. Kansas City, 73 Ran. 722, 85 P, 

Also see the cases of Ex Parte Sizemore, 8 S.W. (2d) 

134, and Randolph v. State, 36 S.W. (2d) 484. 

The case of Bexar County v. Tynan, et al., 97 S. W. 

(2d) 467, holds in effect that the Legislature may on a~proper 

and reasonable classifica%ion enact a general law which, at 

the time of its enactment, is applicable to only one-.coun%y, 

provided the application is not so inflexibly fixed es to ever 

prevent it becoming applicable to other counties, and that the 

Legislature may classify counties on a basis of population for 

purposes of fixing compensation of county and precinct officers, 

but such classification must be based on real distinction, and 

must not be an arbitrary device to give what is in substance a 

local or special law, the form of a general law. And the case 

further holds t,hat the courts in determining whether a law is 

public, general, special or local, will look to the substance 

and practical operation rather than to its title, form, or 

phraseology, since otherwise a prohibition of the.fundemen%al 

law against special legislation would be nugatory; and to justify 

placing one county in a very limited and restricted classification by the Legislature, there must be some reasonable relation between the situation of the counties classified and purposes and objects to be attained, and classificetion cannot be 

adopted arbitrarily on grounds which have no foundation in difference of situation or circumstances of counties placed in 

different; classes, The act reducing salaries of officers in 

counties of over 290,000 and less than 310,000 popula,tion was 

held unreasonable and arbitrary in its classification and void 

as a special law. We quote from the above mentioned opinion 

as follows: 

"The rule is that a classification cannot be adopted 

arbitrarily upon a ground which has no foundation in difference of situation or circumstances of the municipalities placed in the different classes, There m*s% be some 

reasonable relation between the situation of municipelities classified in the purpose and the object to be attained. There nest be something a . e which in some reesonable degree accounts for the division into classes." 

It is apparent that the Legislature intended that the 

act under consideration should apply only to two different ln- 
Honorable Walter M. Hilllard, Page 5 O-2534 

dependent school districts, an act similar to the one considered here was for this and other reasons condemned by the 

Supreme Court in Bexar County v. Tynan, supra. 

Wee have here an instance of arbltrary designation, 

rather than classification. The above quoted statute attempts 

to regulate the affairs of two independent school districts 

in a manner violative of Article 3, Section 56 of the Constitution, 

Therefore , you are respectfully advised that it is the 

opinion of this Department that Senate Bill No. 470, Acts of 

the 46th Legislature, 1939, is a special law, and therefore, 

unconstitutional and void, 

Trusting that the foregoing fully answers your lnquiry, we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Ardell Williams 

Ardell Williams 

Assistant 

AW:AMM:wc 

APPROVED AUG 6, 1940 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee By s/BWB Chairman