c- - R-488

THEATTOEWEYGENERAL

BFTEXAS

PRICE DANIEL ATTORNEY

GENERAL 

### June 5, 1947

Hon. H. L. Roberts OpinionNo. 

### O-235 County Auditor Hutchinson County Stinnett,Texas - Dear Sir: Re: Constitutionalityof an Act which only applies to counties within population brackets shown by the census of 1940.
We refer to your letter ofMay 12, 1947, in which you submit the following:

"Our Commissioners'Court desires a ruling by your Department as to the constitutionalityof that part of Chapter 50,H.B. No. 51, amendingArticle 5142, passed by the present Legislature,which reads as follows: '"'Provided

further that in counties having a population of not less than Nih+ teen Thousand (19,000)and not more than fifty thousand (50,000)as shown by the 1940 Federal Census and whi.ch has an assessed valuation of taxable property of not less than Twenty-fiveMilli.on Dollars (#25,- OOO,OOO),one juvenileofficermay be appointed by the Commissioner's' Court, whose salar may not exceedThree Hundred Dollars 

### (33OOV Per month and expensesnot to exceed Six Hundred Dollars ($600)per year.' "HutchinsonCountyhas a population of 19,069 as shown by the 1940 Federal Census, and a Tax Roll valuation of $29,394, 725.00 as shown by the 1946 tax roll." (Emphasis added) The language "havinga population of not less than nineteen thousand (19.000)and not more than fiftv thousand (50,000),as shownby.the 1940 Federal census; and which has an assessedvaluation of taxableproperty of not less than Twenty-fiveMillion Dollars ($25,OOO,- OOC)," definitely confines the applicationof the Act ,to,the countieswhich met those requirementsat the ef---

Hon. II.L. Roberts, Page 2

feotive date of the Act. No other county can ever come into the same class because of the tie to the 1940 census and to the present tax rolls of the countiesnow in the class. The provisions of the Act only apply to the oounties of Bell, Brazoria, Duval, Ellis, Fort Bend, Gray,Hutchinson,,Jim Wells, Montgomery, Tom Green,Van Zandt,Victoria, Wharton and Wood.

Section 56 of Article III of the State Constitutionreads in part:

"The Legislature shall not, except as otherwiseprovided in this Constitution, pass any local or speoial.law,authorizing... "Regulatingthe affairs of counties, oities, towns, wards or school districts." The Supreme Court of Texasheld in the case Of Altgelt v. Gutzeit, 109 Tex..l23, 201 S.W. 400, tha t an Act fixing the salariesof County Commissioners was an Act "regulatingthe affairs of counties"within the purview of the Constitution, and that an attempt to do so by local or special law was void.

In the case of,City of Fort ,Worth v. Bobbitt, 36 S.W. 2d, 470, the Court had the question of the validity of an Act which applied to citieshaving a population of not.less than 106,000 inhabitantsand not more than 110,000 inhabitantsaccording to the census of 1920. The Court said:

"The Constitution in plain and simple

,. terms prohibits the enactmentof any local or special law regulating the affairs of .' cities, or changing their charters. It cannot be denied that this law does have ref-' erenoe to regulating the affairs of cities. If it is a local or special law, it is therefore.unconstitutionsl and void... "Ifwe shouldhold this law to be constitutionalwhen it describesand confines its applicationto one city,we would in effect be holding the constitutionalprovision under discussion an idle and vain thing, and can be evaded by a subterfuge. We thereforehold that the Act in question is unoonstitutionaland void."Hon. H. L. Roberts, Page 3

The Court then quotes, from Lewis' Sutherland Statutory Construction'(26ed) p. 397, et seq., as follows:
"A classifioationbased upon existing or past conditions or facts and which would exclude the persons, places, things or objeots,thereaftercoming into the sit;;",;o; or condition, isspecial and void. classificationof cities or countiesbased upon existingpopulation or upon the population shown by specific census is of this character." The Texas Court of Criminal Appeals quoted extensively from the City of Fort Worth case and followed its conclusions in Smith v. State, 49 S.W. 2d 739.

The case of City of Fort Worth v. 'Bobbitt, Attorney General, supra, should not be confusedwith City of Fort Worth v. Bobbitt, Attorney General, 41 S.X. '2d228. 'Inthe latter case the Court held a statute constitutionalwhich applied to "cities in the State of Texas, having a population of more than 100,000 inhabitantsaccording to the last recedingUnited States census." (Emphasisadded). -<ording, *'lastpreoedingn census, allows other cities or counties tocome within the situation or condition in the future, and. when based upon otherwise reasonable olassifioations, such laws have been upheld. Such cases only emphasize the invalidity of a special a,ot limited to the 1940. census and 1947 valuations.

We are of the opinion that the provision of E. B. No. 51 passed by the 50th Legislature inquired about in your letter is a local or special law and unconstitutional.

That part of H. B. No. 51, Acts of the 50th Legislature amendingArticle 5142,R.C.S. which fixes salaries of juvenile officers and which definitely confines its application to counties between a maximum and a minimum population according to the census of 1940; or which only applies to countieshaving a taxablevaluation of more than a stated amount at the effective date of the Act, isHon. H. L. Roberts, Page 4

a local or special law regulatingthe affairs of countiesand is unconstitutional. Const.Art. III, Sec. 56; Altgelt v. Gutzeit, 109 Tex. 123, 201 S.W. 400; City ol FortWorth v. Bobbltt, 36 S.W. 26 470. Very truly yours, ATTORNEYGENERAL OF TEXAS

BY T. Williams Assistant

API'ROVED

JUNE 5, 1947



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