Hon. Richard S.Morris

County Attorney Armstrong County Claude, Texas

Dear Sir: Opinion No. O-2127 Re: Constitutionality of Senate Bill 367of the 46th Legislature of Texas

Your request foropinion of this department as to the constitutionality of Senate Bill 367 of the 46th Legislature of Texas has been received and carefully considered.

Senate Bill 367of the 46Legislature of Texas, reads as follows:

"COUNTY COMMISSIONERS - TRAVELING EXPENSES

S. B.No. 367 Acts of the 46th Legislature

"ANACT authorizing the Commissioners Court in all counties having apop~ulationof not less than three thousand three hundred (3,300)and notmore than three thousand fourhundred (3,400), according to the last preceding Federal Census, and inall counties ha'vingapopulation of not less than ten thousand three hundred ninety-nine (10,399),and not more than ten thousand four hundred ninety-nine (10,499),according to.the last preceding Federal Census, toallow each County Commissioner certain traveling expenses while traveling on official business; and declaring an emergency.

"BE ITENACTED BYTHE LEGISLATURE OF THE STATE OF TEXAS:

"Sec. 1. In all counties in this State having apopulation of not less than three thousand three hundred (3,300)and notmore than three thousand four hundred (3,400),according to the last preceding Federal Census, and in all counties- .

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having apopulation of not less than ten thousand three hundred ninety-nine (10,399),and notmore than ten thousand four hundred ninety-nine (10,499), according to the last preceding Federal Census, the Commissioners' Court in such counties ishereby authorized to allow each commissioner the sum of Fifty ($50.00)Dollars permonth for traveling expenses when traveling in the discharge of his official duties.

"Sec. 2. The fact that in counties affected by thisAct, there is a great deal of traveling over rough country roads by the County Commissioners in the discharge of their duties; and the fact that under thepresent law said Commissioners are underpaid: and the fact that more effective service can be rendered by said Commissioners ifmore adequately paid: and the fact that the allowance of traveling expenses as herein set out, is reasonable, just and equitable, creates an emergency and imperative public necessity that the Constitutional Rule requiring that all bills be read on three several days in each house be suspended, and said Rule ishereby suspended, and thisAct shall take effect and be in force from and after the'date of itspassage, and it is so enacted.

"Filedwithout Governor's signature, May 3, 1939. "Effective May 3, 1939."

Armstrong County, Texas, according to the last preceding Federal Census of 1930, has Three Thousand, Three Hundred, Twenty-nine (3,329) inhabitants and is the only county in Texas coming within thepopulation brackets ofnot less than three thousand three hundred (3,300)and notmore than three thousand fourhundred (3,400) inhabitants.

Willacy County, Texas, according to the lastpreceding Federal Census, has ten thousand fourhundred ninety-nine (10,499) inhabitants and is the only county in Texas coming within thepopulation brackets of not less than ten thousand three hundred ninety-nine (10,399) and notmore than ten thousand fourhundred ninety-nine (10,499) inhabitants.

The question arises as towhether or not this is a local or special act attempting to regulate the affairs of counties inviolation ofArticle 3, Section 56of the Constitution of Texas..

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The case ofAltgelt vs. Gutzeit, 201 SW 400, holds that a Bexar County Road Law, providing for an annual salary for commissioners of county foracting in all capacities, was unconstitutional, as an attempted regulation of county affairs by local and special law.

The case of Smith vs. State, 49 SW (2d) 739,holds that the constitutional prohibition against special laws cannot be evaded bymaking a law applicable to apretended class and that a statute classifying municipalities by population is "special" if the population does not afford a fairbasis for classification but that the statutemerely designates a single municipality under the guise of classifying by population. We quote from the court's opinion in said case as follows:

"Aconsideration of the classification createdby the act involved in thepresent case in the light ofArticle 3, Section 56of the Constitution, primarily calls for the application of the rule that the Legislature cannot evade the prohibition of the Constitution bymaking a lawapplicable to apretended class, which is, asmanifested by the act, in fact, no class. Clark vs. Finley, 54 S.W. 343, supra. Some of the tests fordetermining whether apretended class ismanifested by an act are laid down by McQuillan onMunicipal Corporations, Wolume 1,pages 298, 299. We quote:

"'The classification adopted must rest in real or substantial distinction, which renders one class, in truth, distinct, or different from another class.... There must exist a reasonable justification for the classification: that is, the basis of the classification invokedmust have adirect relation to the purpose of the law...."'

We quote from the court's opinion in the case of wood vs.Marfa Independent School District, 123 S.W. (2d) 429, as follows:

"We take judicial knowledge that no other county inTexas has the qualification of area and population demanded by the statutes.... It isHon. Richard S.Morris, Page 4

sufficient to sayhere thatwhen we look to the practical operation of the act, we are led to the conclusion that beyond doubt itwas thepurpose of theLegislature to single out Presidio County andmake the act applicable to that county alone. Bexar County vs Tynan, 97 S.W. (2d)467. For that reason the act is a local act and onewhich itwas beyond thepower of the Legislature to enact. Vernon's Annotated Civil Statutes, Texas Constitution, Article 3Section 56;Brownfield vs. Tongate, 109 S.W. (2d) 352; City of Fort Worth vs. Bobbitt, 36 S.W. (2d)470; Fritter vs. West, 65 S.W. (2d)414;Austin Bros. vs. Patton, 288 S.W. 182; Smith vs. State, 49 S.W. (2d)729

This department held in its opinion **No.** O-18 on March 6, 1939, that Articles 2372-l and 5221b-23, Revised Civil Statutes of Texas, 1925, the former being applicable to counties having apopulation of less than fortyeight thousand, nine hundred (48,900) and notmore than forty-nine thousand (49,000)and the latter applying to counties with population of not less than forty-eight thousand, nine hundred (48,900)and notmore than forty eight thousand, nine hundred and seventy-five (48,975)and counties with population of not less than ten thousand, three hundred and seventy (10,370)and notmore than ten thousand, three hundred and eighty (10,380), according to the last preceding Federal .Census,were unconstitutional and void as special laws under Section 56,Article 3,of the State Constitution, citing the case of the City of Fort Worth vs. Bobbitt, 36 S.W. (2d)470.

This department held in its opinion No. O-364,
onMarch 1, 1939, thatArticle 3902, Section 3a thereof, Revised Civil Statutes of Texas, 1925, providing foran office assistant, bookkeeper and stenographer in counties having apopulation of not less than forty-eight thousand, none hundred (48,900)and notmore than forty-nine thousand (49,000 inhabitants, according to the lastpreceding Federal Census, was void under Article 3, Section 56, of the State Constitution.

This department held in its opinion No. O-462,
onMarch 21, 1939, that House Bill 632, 46th Legislature, which provides for the attachment of adjacent territory for zoning purposes by towns of not less than four thousand (4,000) inhabitants within counties of not less than. -

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three hundred thousand (300,000)and not more than three hundred and fifty thousand (350,000) inhabitants according to the last preceding Federal Census, was unconstitutional in that itattempted to enact a local law and fell within the prohibition ofArticle 3, Section 56, of the Constitution of Texas.

This department held in its opinion No. O-899,
on June 1, 1939, that House Bill 866 of the 46th Legislature of Texas, providing for traveling expenses for county commissioners of counties having apopulation of not less than (22,X00)and notmore than (22,500),acording~to the last preceding Federal Census, was unconstitutional in that it
was a local and special law attempting to regulate the affairs of a county and fellwithin the prohibition of Section 56ofArticle 3of the Constitution of Texas.

This department held in its opinion No. O-1986
on February 29, 1940, that H. B. 876, 46th Legislature and H. B. 1122, 45th Legislature, were unconstitutional and void in that the samewere local and special laws attempting to regulate the affairs of county and fellwithin the prohibition of Section 56ofArticle 3of the Constitution of this State. These bills applied only toMontgomery County, Texas. We have heretofore sentyou a copy of this opinion.

This department has held a large number of similar acts tobe unconstitutional on the grounds above stated.

Therefore, you are respectfully advised that it is the opinion of this department that Senate Bill 367 of the 46th Legislature of Texas isunconstitutional and in violation of Section 56ofArticle 3of the Constitution of Texas in that saidAct attempts to regulate the affairs of counties by local and special law.

Very truly yours

ATTORNEY GENERAL OF TEXAS APPROVED APR 15, 1940 /s/Wm. J. Fanning /s/ Gerald Mann Assistant ATTORNEY GENERAL OF TEXAS

WJF:AW APPROVED OPINION COMMITTEE By BWB Chairman