November

Hon. S. C. Ratliff County Attorney Delta County Cooper, Texas

Dear Sir: 

### 20,1948

Opinion No. 

### v-723
Re: Constitutionality of S. 13.70 (50th Leg.) andvalidity of a Droposed County HomeRule Charter under Article IX, Section 

### 3,Texas Constitution.

Yourequest an opinion onthe constitutionality of Senate Bill No. 

### 70of the 50th Legislature and the form of aproposed County HomeRule Charter for Delta County.

Senate Bill No. 70 (passed bya 2&d majority of both houses) reads:

"Sec. 1. ,The people of Delta County, Texas, are hereby authorized to proceed under the authority of Article IX, Section 

### 3, of the Constitution of the State of Texas, for the adoption of aCounty HomeRule Charter.
"Sec. 2. Such aCounty HomeRule Charter shill be adopted by amajority vote of the qualified electors residing In Delta County, Texas."
The pertinent part of Section 

### 3of Article IXof the Constitution reads:

"A county having ,apopulation of sixtytwo thousand 

### (62,000)or more .iccordlng to the then last FederA Census mlyadopt a County HomeRule Charter, to embrace those powers ,ipproprlate hereto, within the specific limlt~tions hereinafter provided. It is further provided that the Legislature, bya favoring vote of two-thirds of the totalI .

Hon. S. C. Ratliff - Page 2 

### (V-723)

membership of both the Senate andthe House of Representat Ives, mayauthorize any county, having apopulation less than that above specified, to proceed hereunder for the adoption of aCharter; however, as acondition for such authorization, It is required that notice of the intent to seek Legislative authority hereunder must be published In one or more newspapers, to give general circulation in the county affected, not less than once per week for four consecutive weeks.

. . No County HomeRule Charter mayheadopted by any county save upon afavoring vote of the resident qualified electors of the affected County.”
Youadvise that the notice of intention to ask the Legislature to pass such lawwas duly puhlished in accordance with the above quoted part of Section 

### 3of Article IX. Weare of the opinion th& said Act is valid andthat it authorizes Delta County to proceed to adopt aCounty HomeRule Charter under,the provisions of the Constitution.
Senate Rill No. 70does not provide for any procedure for the preparation or adoption of aCounty Home Rule Charter. The only authority in that regard is contained in Acts 

### 1933,43rd Legislature, 1st Called Session, p. 239, ch. 91. (Article 1606a, V. C. S.) Section 1and the p’ertinent part of Section 2of said Article reads:

“The purpose of this Act is to provide an enabling Act under the recent Constitutlonil Jmendment adopted and known as Section 3of Article 9of the Consti,tutlon of the State of Texds, hereinafter sometimes referred to as ’the <Amendment, ) in order that the Bties the provision of such article m.iyadopt, upon avote of the quklifled resident electors of such countlec, aHome Rule Charter in accordance with the terms and provisions of such portion of the Constitution.” (Emphasis added throughout this @pinion)

“This Act shall apply to anv qualified county of Texas, desiring to adopt aHomeRuleHon. S. C. Ratllff - Page 

### 3 (V-723)

Charter under the powers, andwithin the llmitations, expressed by Section 

### 3of .Artlcle IX of the Constitution of Texas.

. . .I’
Failure of said Senate Bill No. 

### 70to provide any procedure or adopt the procedure under the enabling act for preparation or adoption of aCounty HomeRule Charter presents the further question: Does the language

“counties coming within the provisions” and “This 4ct shall apply to any qualified county” in the enabling act include counties which camewithin the provisions of the law or to any county which maybecome qualified to adopt aHomeRule Charter after the lawwas passed?

Morgan v. Potter, (Wls. Sup.) 

### 298N. W. 

### 763, involved the construction of a statute which reads:

“Anyteacher coming under the provisions of this section 

### (42.55)whohas attained or shall attain the age of 

### 70years shall be retired bythe managing body of the schools at the end of the school year in which said teacher has reached the age of seventy.” Construing th;rt statute, the Court said:

“Weconsider that in Its opening phrase,

‘any teacher coming’ under this section 

### (42.55), the word ‘coming’ means ‘who is’
, whether the teacher was under Sec. 

### 42.55when Ch. 

### 160was enacted, or cameunder the section theredfter. Theword ‘coming’ by Implication covers those tedchers.who had comeunder Sec. 

### 42.55before par. (k) was enacted, and those #whoshould II

. WeIre of the opinion thAt the language: ”in order that counties coming within the provisions of such article, mayAdopt, etc.” In Section 1, andthe language:

“ihis fi,ct shdll apply to any qualified county of Texas, desiring to Adopt dHomeRule Ch.*rter under the powers, and within the limitations expressed bySection 

### 3of ,Artitle IX of the Constitution of Texas; lnd the people of any qualified county whomiy desire to move for the ddoption of a county charter, under such Constitutional pro- -1::;I.w.s, shill1 proceed, etc.,” (in Article 1606a, V.C.S.1 is sufficient to briny Delta County within the provisions of that drticle, so tht It mayproceed to adopt J.County RomeRule Ch.irter under the procedure therein provided,Hon. S. C. Ratliff - Page 4 (V-723)

under the authority given in Senate Bill No. 70.

The validity of aCounty HomeRule Charter is controlled bynumerous restrictions including those contained in Section 

### 3of Article IXof the Constitution, a pertinent part of which is:

“(2)

. . ..It Is expressly forbidden that any such charter mayinconsonantly affect the operation of the General Laws of the State relating to the judicial, tax, fisCdl, educational, police, highday andhealth systems, or any other depdrtment of th,e State’s superior government. Nothing herein contAined shall be deemed to authorize the adoption of aCharter provision inimical to or inconsistent with the sovereignty and established public policies of this State, and noprovision having such vice shall have validity as against the State. NoCharter provision mayoperate to impair the exemption of homesteads as established bythis Constitution and the Statutes relating thereto.”
The amendment is amost unusual one, involving, as it does, a potential change in every county of the State in respect to its governmental affairs. It is unusual in length and scope. Its phrasing and meticulous limitations are extraordinary, and furthermore it contains someApparently conflicting provisions

. Because of its length it will not be here quoted, but specific portions thereof w.ill be set out along with the discussion. PerhAps ths most clemsntary and important ruls of construction of written instruments--*whether constitution, st:,ltute or contract whatsoever--is that the intention of I:~wrr.iker of the instrument is the re-:l meaning thereof. “:11other rules are subordinate tc\thi,s andAre m,zrely so miny Aids to the inquirer in his quest for the intention of

’ the maker.
tie shill first rive consideration to the overall., primdry pu-pose of the amendment, to discover theHon. S. C. Ratliff - Page 5' (V-723)

evil sought to be corrected and the meansadopted for accomplishing it.

Subsection (1) yields the key to the inquiry, that is, to afford to the county the "highest degree of JOCL self (LOee Is c-tent with the a1 -vr ficient conduct of those affairs bvnecessity lodged a the nation and the state."

The instrument should be construed ds awhole, including the respective parts, separ+tely and collectively, each in the light of the other, ;Indlikewise =>ny or all of them in the light of other constitutional provisions having any bezing upon the subject. Nhere there are two constructions possible, one of which would mike inv.Lid or meanineless the amendment, or lead to an absurd result, ;lnd another which .would give life and meining to the Amendmentand attribute to each p.art a meaning consistent with the other parts sothat dll may stdnd, the first construction will be abandoned as inadmissible and the second one Adopted as the proper one to indicate the indispensable essential of intention. Pierson v. Stste, 177 S. W. (2d) "75; State v. Gillette's Est., 10S. W. (2d) 984; Koyv. Schneider, 221 S. W. 8,?0; ExParte Jnderson, 81S. rl. 973; Warren v. Shuman, 5Tex. 442. Similarly, where a statute or constitution is fAirly cspdble of two constructions, each of which would leave doutt lrd uncertainty and possible public harm, th:it construction which would leave the lesser vices and dangers should he adopted ds more nearly indicative ,of the real intention of the framers of the instrument. Thornilsv. Creager 107 S. d. (2d) 705; Orndorff v. State, 108 S. d. (2d) 206.

Another familiar rule of construction IS thdt the Iffirmdtive grdnt of pipower carries with it bynecessary implication of law the further power to do~11 things necessary, or reasonably Jnd directly helpful in carrying out the primary purpose. Ju'ilson v. Rbilene Independent School District, 190S. W. (2d) 406.

In this process of construction, literalism will yield to the spirit of a constitution or statute when the latter more accurately sho+s the real purpose or intention of its makers.11.2 Hon. s. c. Rat.liff - Page 6 (V-723)

In consonrnce with these indisputable rules of construction pertinent to the situation, wearc of the opinion tht the dominant purpose of the amendment wasto afford to the counties the greatest latitude o lOCal Control Of their COUntY 9ffdirS. consistent Wit: the suverior rights and vowers of the State.

If literalism should control our interpretation of the emphatic prohibitions in paragraph (2) of the amendment, above quoted, noHomeRule nmandment could be adopted at all, for the State in Its sovereign capacity has always promulgated laws for the control of county affliirs throughout the State. Literalism, ho:dever, must yield to the purpose of the amendment

. Literallsm would forbid the adoption of any charter that would abandon the County Commissioners’ Court ds it nowexists and substitute therefor agoverning body otherwise constituted. Yet these are the precise things expressly authorized bythe amendment. The samecomment maybe madewith respect to the power conferred by pdrdgraph c. of Subdivision (3) authorizing the governing body established byany county to

“create, consolidate or abolish any office or department, whether created byother provisions of the Constitution or bystatute, define the duties thereof, fix~the. compensation for the service therein, make the sameelective or appointlve, andprescribe the time, qualifications and conditions for tenure in any such office.”

The true rule deducible, therefore, is that the amendment authorizes.any county adopting 1Home Rule Charter to “provide for ;Igoverning body” other thin the Commissioners’ Court and incidentally to make all provisions necessary or directly helpful to that major purpose, Andthe meticulous limitLti.ons, qualifications, dna exceptions~contained in the amendment attest the prohibition to take any step that would affect the State’s powers of government other than those expressly or bynecessary implication conferred onthe county. Inconsistencies, contr.idictions, and absurdities are always to he avoided if possible in construction. Holmanv, nrOddWdy Improvement Company, 330 S.W. 15; Cramer v. Sheppard 167 S.N. (2d) 147; Carpenter
v. Shcpp:ird, 145 S.W. f2d) 562; Sanfintonio Etc. Ry. v. State, 75 2.W. (2d) 680; ExParte Cooks, 135 S.4. 139.Hon. S. C. Ratliff - P’age7’ (V-723) _ 

## 13:J

Applying these rules of construction, we point out somevices in the proposed charter, as follows:

Section 9contains matter which wethink is forbidden by the language of Paragraph (2) of Subdivision 3 of the amendment. Werefer to the following portion of Charter Section 9, to-wit:

"The (Manager) mayauthorize an officer or department hedidto appoint and remove subordinates under his respective supervision."
It is contrary to the long established policy of this State to permit dnofficer of the State to delegate his official power,to Another. No.duthorities,are needed for d proposition so elementary. The last paragraph of Section 9is also of doubtful validity for the sameredson. In other words, the charter makesthe Commission dboard of officers clothed with constitutional dnd statutory powers generally to control and manage county affairs, while this portion of Section 9, in some measure at least, would delegate the power vested in the Commission to its appointee, the County Manager.

.Section 13 is invalid wherein it attempts to abol.ish the office of County T&xAssessor and Collector and to estrblish in lieu thereof aCounty Manager as the head of the finance department with the powers of County Tax 4ssessor and Collector. The office of assessor and collector of taxes is aconstitutional one (Sec. 14, Art. VIII) and its functions are not those kiith respect to county affairs %llone, hut involve essential St-;lte functions 4s wsll. Indeed, the sumtot.21 of such officer's fnncti~ons ,rt:fect the enti r*eCin.inc5:\l r:cheme o!' fcvern-, Tent. ficounty could not .Iholish tbc office nTr:ssessorCollector !qithout serious interference with the superior Stite t:overnment:il policies. .:'heSt,lte m:~ynot bedeprived of it:: sovereign right to mike 1.1~sfor its own government. The Amerrimentis to imp1cm6-rltcounty controls of county .Afi.~iirs, not to surrender functi.ons 3nd prerog.1 tives to dnother.

Section 23 is invalid insof:ir .LSit attempts to Ybolish th- office of District Clerk for the reasons just given, nor is it within the authority of Section 3, Subdivision (3)~ authorizing the consolidation or abolishing II' 4r-,yoffice or department. The offices and dep:artments there contemnl.ated are those offices anddepartments hav-. . 

## 114 Hon. S. C. Ratllff - Page 8 (V-723)

ing to dowith county affairs only. This does not include the District Clerk.

Section 26 Is Invalid. The office of Sheriff is aconstitutional office, elective for adefinite term of twoyears. His duties and functions are not wholly with respect to county affairs, so that the public policy of the State with respect to his selection and duties may not be usurped byany individual county.

Section 27, abolishing the offices of Justices of the Peace and Constables, is invalid for reasons already given with respect to other officers, and for the further reason th.at these officers are concerned very remotely, If at Al, with county affairs. They have t,odo for the most part with state affairs under the police power, which field Is one of the principal prerogatives of State sovereignty.

Weneed not discuss the various sections of the proposed charter, seriatim, but the rules of construction accompanied bythe Illustrations of vice in those instances pointed out will suffice, wethink, as aguide in the preparation of acharter for submission to the people of ijelta County.

However, wecall your attention to the first paragraph of Section 3of the proposed charter declaring

“except as otherwise provided in this charter, 311 Dower% of the county shall be vested in aCommission of five memhers, elected from the county at large in the manner hereafter provided, whoshall serve without compensation.

. .‘I

Weentertain grave doubts as to t,heright of the county to adopt acharter which would vest “all powers of the county” in acommission. The Commissioners’ Court Is aconstl.tutlonal instrument~allty of government. Under the established policy of the State from its earllest days that body has been clothed with certain powers which are essentlal.ly the sovereign powers of the State as contradlstin- &shed from matters of rounty affairs. owehave in mind especially such powers as the following:

Dividing the county into election precincts; Ordering local option elections in regulation of liquor;.Hon. S. C. Ratllff'- Page 

### 9 (V-723')

Canvassing returns of elections of State officers; Appointing ahealth officer to act under direction of the State Health Officer; Acting as Board of Equalization in fixing values of land for purposes of State taxation; Approving reports and official bonds of county officers.
Such a power to exercise "all powers of the county" bythe five-member agency set up in the proposed charter, certainly is not expressly conferred bythe amendment; neither is is impliedly conferred bythe language of subsection (3)a. providing: "In any event, In addition to the powers and duties provided byany such charter, such governing body shall exercise all powers, and discharge all duties which, In the absence of the provisions hereof, would devolve by law onCounty Commissioners and County Commissioners' Courts." The significant phrase Jn the absm fthe nr visions hereof forbids such imnlication. BYetEe term "tohenrovisions , hereof," is me&t a.11the Dbvisi ns of the amincluding the manyand mandztory zestrictions. prohibltlons, limitations and qualifications. The language immediately following Is highly important and bespeaks plainly the limited extent and scope of the powers contemplated. It is as follows: l'Further, any such charter mayprovide for the organizatton, re-organization, establishment and administration of the government of the county, including the control andregulation of the performsnce of and the compensation for all duties reaulred in the conduct of the countv aff~airg, subject to the limitations herein provided."

Wenote the following amongthe manyexpress limitations:

. Mayadopt '4county homerule charter, ti ambrace those powers appropriate hereto, within the specific limitations hereinafter provided.

. . It is cxpresslv forbidden that any such charter mayinconsonantly affect the operation of the general laws of the State relating to the judicial, tax, fiscal,Hon. S. C. Ratllff - Page 10 (V-723)

educational, police, highway and health system, or any other department of the State’s superior government. Nothing herein contained shall be deemed to authorize the adoption of
acharter provlsian inimical to or Inconsistent with the sovereignty and established public policies of this State, andnoprovision having such vice shall have validity as against the State.

. . .I’ Art. IX, Sec. 

### 3(2). I,

. . . Other than as herein provided, no such charter shall provide for altering the jurlsdiction or procedure of any court.

. . .“lbid subsection (3)b.

“Such charter mayauthorize the governing body

. . . to prescribe the schedule of fees to be charged bythe officers of the county

. provided, however, nofee for a specihldd service shall,exceed in amount the fee fixed byGeneral Lawfor that sameservice.

. . mayprescribe the qualifications for services, provided the standards therefor benot lower than those fixed bythe General Lawsof the State.” ibid subsection 

### (5) I1

. . . Nosuch transfer or yielding of functions (of State agencies) maybe effected, unless the proposal Is submitted to avote of the people, and, unless otherwise provided by atwo-thirds vote of the total membership of each House of the Legislature,

. . . particularly, it is provided that the power to create funded Indebtedness and to levy taxes in support thereof maybe exercised only by such procedures, andwithin such limits, as noware, or hereafter maybe/provided by law to control such appropriate other governmental agencies were they to be independently administerea.

. . .‘I ibid subsection (6)a.
Areading of the amendmentwill showthat It contains more prohibitions, limitations, qualifications, exceptions and restrictions than it does grants of power. Indeed, Section (1) declaring the purpose of the Act to be agrant of the “highest degree of local self-governmentwhich is consistent with the efficient conduct of-. . Hon. S. C. Ratliff - Page 11 (V-723)

those affairs by necessity lodged In the Nation andthe State," Is In truth the sole affirmative grant of power, and be it remembered this grant is limited to "local self-government." Onthe whole the amendment is more concerned with the preservation of the over-all supremacy of the State in matters concerning State affairs. Under every test It will appear that an effort to abolish the Commissioners' Court would be in disregard of these numerous prohibitions and limitations andtherefore "inimical to, and inconsistent with the sovereignty and established public policies of this State." The amendment should not be construed as acomplete divorcement of county and state in the matter of governmental powers. The Commissioners' Court of the county has not been expressly abolished bythe amendment in any event, and such abolishment will not be implied. Repeals by Implication are not favored. Anyother construction would bring chaos In the administration of the law.

This discussion does not exhaust the large problems raised byArticle IX, Section 

### 3,its supporting Statutes
, and the proposed charter. To discuss each line and phrase would mke this opinion too long. Problem and fact situations will arise whtch cannot be anticipated or properly decided in adv:tnce. If calied upon to p;iss thereon, they will be treated separately as they arise.

H. B. is dvalid

to adopt d No. 70of the 50th Legislature

,Actand authorizes Delta County County HomeRule Charter. Morganv. Potter, 298 N. W. 763. SUMMARY

The Nanager provided in such aCharter maynot be authorized to appoint and remove subordinate officers as such would be anunlawful delegation of power by the governing body. The Charter my not abolish the office of County Tax Assessor and Collector, District Clerk, Sheriff, Zustice of t!le Peace, Constable, or the Commissioners' Court, since each of these is aState functionary and exercises powersHon. S. Ci Ratliff - Page 12 (V-723)

and is charged with duties of state-wide iniportance as contradistinguished from county affairs, and such,abolishment would be contrary to the exprs~ss prohlbltlons of the amendment.
Yours very truly,
ATTORNEY

GEmAL OFTEXAS

0S:wb W.T. Williams

Assist& 

# $TTJl&

ATTORNEY

GENERAL