,

THEA-~T~~EY GENERAL
OFTEXAS
GERALD C. MANN AUSTINI~.TEXAR

Ax-r"RNmcY GSZXUE-I.

Honorable Walter M, Hilliard CountyAttorney Burleson County Caldwell,Texas
Dear Sir: OpinionNo, O-2534 Re: Constitutionalityof Senate Bill 470,Acts of the 46th Legislature, 19390
Your letter of July 29, 1940, requesting~an opinion of thisDepartment on the question as is herein stated has been received.
We quote from your letter as follows:
"IsSenate Bill No, 470 of the 46th Legislature unconstitutionalbecause of the followingreasons? "The Statute violatesArt. 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 peoplewhose 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-fifthsof the people affected are residents of an incorporatedcity and the remaining one-fifthare residents outside of said incorporated city. "TheStatute isunconstitutionaland violates The Constitution of the State of Texas in that it is highly discriminatory, The application of the Statutes favors the residents of the incorporatedcity and discriminates against the residents living outside the limits of said city. "Kindlyadvise as to the constitutionalityof the Statute."
Senate Bill No. 470,Acts of the 46th Legislature,Regular Session, 1939, reads as follows:.

HonorableWalter M. Hilllard, Page 2 O-2534

"SECTION 1, In any independent schooldistrict having and includingwithin its limits a city or town which, acoording to the then latestFederal Census, had a population of not fewer than seventeenhundred twentyone 1,721 and not more than seventeen hundred fiftgt 1 one 1,751 inhabitants,andin 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 shownby the last preceding or any future Federal Census, the governingbody 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 exceedNinety 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 publicsfree schoolbuildingswithin 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 OneHundred ($100.00)Dollars valuation of taxable property in payment of the current ing fund sufficientto bonds of suchdistric,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 togetherwith the amount of bond tax of any such district shallnever exceed One and 50/100 ($1.50)Dollars on the OneHundred ($lOO'.OO) Dollars valuation of taxablepropertywithin such distr~ict; and if the rat,eof bond tax togetherwith 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, suchbond 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 Constitutionreads in part as follows:

"TheLegislature shallnot, 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 schooldistricts; ..-~- and in all other caseswhere a general law can be made applicable,no local or special laws shall be enacted; provided, that nothing herein contained shallbe 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 substantialreason for classifyingmunicipalities by population appears, such classifica%ionand legislation applicable to such classification is generally sustained, How ever, the constitutionalprohibition against special laws cannot be evadedby making laws applicable to a pretended class, and that a statute classifyingmunicipalitiesby population is "special"if the populationdoes no% afford a fair basis for classification;that the statutemerely designates a single municipalityunder the guise of classificationby population; and that a valid classificationof municipalitiesby population must not exclude other municipalities from entering such classificationor attaining the specifiedpopulation.
We quote from this case as follows:
"In this state it is the rule that the Legislature cannot evade the prohibition of the Constitutionas 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 jurisdictionshave 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: 'Inso far as the courtswhich undertake to define the basis upon which the classificationmust rest hold that the legislature cannot,by a pretended classification,evade a constitutionalrestriction,we fully concurwith them. But if they hold that a classificationwhich 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.shouldapply is, as a general rule, a legislativequestion. When the intent of the legislature is clear, the policy of the law is a matterwhich does not concern the courts.' If the classificationof 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 fairHonorable Walter M. Hilllard, Page 4 O-2534

basis for the classlfica%ionwith reference to the matters to which it relates, and whether the result it accomplishes is in fact .a

real cla~sifice%ionupon 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-WashingtonCo. 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 Legislaturemay on a~proper and reasonable classifica%ion enact a general lawwhich, 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 Legislaturemay classify counties on a basis of population for purposes of fixing compensation of county and precinct officers, but such classificationmust be based on real distinction, and must not be an arbitrarydevice to give what is in substance a local or special law, the form of a general law. And the case further holds t,hatthe courts in determiningwhether a law is public, general, special or local,will look to the substance and practical operationrather than to its title, form, or phraseology, since otherwisea prohibition of the.fundemen%al law against special legislationwould be nugatory; and to justify placing one county in a very limitedand 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 cannotbe adopted arbitrarily on grounds which have no foundation in difference of situation or circumstances of countiesplaced in different;

classes, The act reducing salaries of officers in counties of over 290,000 and less than 310,000popula,tion was held unreasonable and arbitrary in its classificationand void as a special law. We quote from the above mentioned opinion as follows:

"Therule is that a classificationcannot be adopted arbitrarilyupon 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 situationof municipelities classified in the purpose and the object to be attained. There nest be something a . ewhich in some reesonabledegree 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 schooldistricts, an act similar to the one considered herewas for this and other reasons condemnedby the Supreme Court in Bexar County v. Tynan, supra.
Weehave here an instance of arbltrarydesignation, rather than classification. The above quoted statute attempts to regulate the affairs of two independent schooldistricts in a manner violative ofArticle 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, unconstitutionaland void,

Trusting that the foregoing fully answers your lnquiry,we are Yours very truly
ATTORNEY GENERAL OF TEXAS

By s/ArdellWilliams ArdellWilliams Assistant
AW:AMM:wc

APPROVED AUG 6, 1940 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL
Approved Opinion CommitteeBy s/BWB Chairman