OFFlCE OF THE ATfORNW GENERAL OF I= 

AUBTlN 

OllOYCI SPLL=Rs 

ryou*l* cci*rrL 

Honorable H. Pat Edwards 

District ,Attorney 

Records Building 

Dallas 2, Texas 

This Opinion 

Oven ules Opinloa 

# O-6776 

Dear Sir: Opinion No. O-6846 

Re: Coastitutiooality of H.B. 

555, 49th Leg., 1945, 

(titlcle 2327-a, Y.A.C.S.), 

concerning salaries of 

oourt r+ortere. 

We have received Jtour letter of recent date requesting an opinion from this departsient OQ the .abovd sabject matter. 

House kill 555, Chapter 291, .ihts of the 49th 

*gislatwe, 1945, is as. follows: 

“section 1, That Article 2326, Chapter 13, 

Revised Civi.1 Statutes of Texas, 1925, and all 

subsectioas of A.?tlc~le 2326, be ati the same 

are hereby amended so as to hereafter read as 

sollows : 

“l&ticle 2326. 

“‘The official shortWnd reporter of each’~’ 

Judloial District Court, civil or crI.ninal, and 

the official shorthand reporter of each County 

Court at Law,’ civil or criminal, shall receive 

a salary of not less than Two Thousand, Four 

Hundred Doj_tara ($2,400) per annum and aot more 

than Three Thou&d, Seven Hundred an.d Fifty 

Dollars ( $3,750). per annum. Said salary shall 

be fixed and determiaed by the District. Judges 

of: the Judicial Districts, ~cl.vi~.or crlminal.,~ aad 

the Judges of the Colinty Court.-at Law, civl~ OI? 

criminal, who shall enter an.-order ‘in the minutes 
. 

,*, i 

Honorable H. Pat Edwards, page 2 

of the Court, in each county of the district, 

which shall be a public record and open for 

public inspection, stating s-pacifically the amount 

of salary to be paid said re>,rter. Tee District 

5n.;(.ge s?lall file a copy of 5.3id order xith each 

Ckxmls5innere Court of the D:lstrict. The salary 

ehkllbe in additron to the transcript fees and 

tr;Iveli;j3 acS hote:i expenses of official shorthand reporters, as is nom provided by iaw. 

“‘The salary shall be paid monthly by the 

Commissioners Court of the county or cciunties in 

the Judicial Districts, cicI.i or criminal, and 

the County Courts at Law, civil OS criminal, out 

Of any available SUtkd Of the C0UOty~ or counties 

that the ConMssiocers Court may desire to psy 

the same, aonordiog to At+.c:!es 2326H and 23--A. 

nor more than 

“sec. 2. The provisions of this Act are and, 

shall be held and Con&trued to be cumulative of 

all. General and Special laws of this State on the 

subject treated of and embraced in this &zt when 

not in conflict thereewith, but in case of 'conflict, la whole or In part, this Act shall control'ln so far a8 any coaSllct~exists. All laws... 

and parts of laws in conflict with said Act are 

hereby repealed. 

"Provided, however;thls Act does not repeal 

rior amend ‘h?t'iClQB 232&A, 2326~, and 2327~ 0s 

.Chapter 13. 

"Set . 3. The crowded condition cf the salendar tied the fact that existing economic conditions have brought about an increase In the prices 

0-4 all commodities and that the official shorthand reporters are being paid below the present 

standard for comparable SQrVbZQ8, create an 
Honorable H. Pst Edwards, page 3 

emergency and an Imperative public necessity that 

the Constitutional Rule requirin, bills to be read 

on three several days In QaCh Rouse be suspended, 

and said Rule Is hereby suspended, and that this 

Act &all take effect and be in full fOrCQ and 

effect from and after Its pdssage, and it is so 

QUaCted.' 

You have raised the question as to the coostitutionalitg of H.B. 555 because of the exception underlined 

above. It is.your opinion that said exception amounts to 

fixing a classification which is arbitrary and has co true 

relevancy to the purpose of the legislation, and therefore, 

H.B. 555 is unconstitutional because it violates section 56 

of Article III ,of our State Constltutlon. 

Section 56 of Article III ia In part as .Sollows: 

"SQC. 56. The Legislature shall not, except 

as otherwise provided In this Constitution, pass 

any local or special l~aw, authorieing:. 

11 . . . . 

"Regulating the affaira of counties, hities,' 

towns, wards or school districts; 

II . . . . 

"Creating offices, or prescribing the powers 

and duties of officers, In counties, cities, 

towns, election or school districts;" 

In thQ case of BQXar Countgv: Tynan, et al, 97 S.W. 

(2d) 467, (Commission of Appeals), the Court IU COnStr~iing the 

above quoted section of the State Constitution StKitQd that: 

"The Legislature may, upon a proper and reasonable classification, enact a general law which 

at the time of its enactment is applicable to 

only one county; provided its application is not. 

so inflexibly fixed as to prevent it ever being 

applicable to other counties. . . . 
. 

Honorable II, Pat Edwards, page 4 

“Rotwithstanding it Is true that the Legislature may classify counties upon a basis of 

pOpUbti.On for the purpose Of fT?cing compensation of county and precinct officers, yet in do1u.g so the classification must be based upon a 

real distinction, and must not be arbitrary or a 

device to give what is In substance a local or 

special law the form of a general law. It is well 

recognized that in determining whether a law is 

public, general, special or local the courts Will 

look to its substance and practical operations 

rather than to its.title, form and phraseology, 

because otherwise prohibitions of the Sundamental law against special legislation would be nugatory. ’ 25 R.C.L., 815, and authoritLes cited 

. . . . 

“In the case of Clark v. Finley, 93 Tex. 

171, 54 S.W. 343, this court recognized that 

substantial differences In populations of counties could be made a basis of leglslatioa SIxIng 

compensatia of off Fcers, on the theory, as the 

court clearly recognized, that the work devoivbg upOc ac OffiCQr Was in SOme de@W? proportionate to the population of the county. This 

has frequently been recognized by courts as creating a sufficient distinction to justify a 

larger compensatloa for county officers In counties having a large population as compared with 

compensation to like officers in counties having 

In the case of Miller et al v. El Paso County, 150 

9. ii. ( 2d) 1003, the Supreme Court held: 

“Resort to population brackets for purpose 

of classifying subjects for legislation is 
Honorable II. Pat Edwards, page 5 

permissible where spread of population is broad 

enough to include or segregate a substantial 

class and population bears some real relation to 

subject of legislation and affords fair basis 

for classification . . , . 

It has been legitimately employed 

in fix;& .iees of offices in certain cases but 

even then it is permissible only where the’spread 

OS population is substantial and ia sufficient to 

include a real class with characteristics which 

reasonably distinguish it from others as applied 

to the oontemplated legislation, and affor#s a 

Tai?? bas’is for the classification. I’ (End e&sccripg ‘ours) 

EOr additional authorites on the above-quoted rules see Lewis 

Sutherland Statutor ea.), p. 397 et seq; 

of Ft; W0rth.v. Bob-. 

(2d) ,228; Supreme 

Smith v. State, 49 S.U. (26) 739; Rand01 

1; ‘81 S.W. 18; 

ir. Stite, 46 3.5-T. 

(2d) 484; Fr1tter.v. West, 65 S.W. (2d) r 14, wrlt refused; 

State v. Rally 76 S.W. (26) 880~ Wood .v.. Marfa Ind. School 

mat ., 123 S,W. (2d) 4293’ Leonard v. Road Malntnnance Ilist. 

No.. 1, 187 Ark. 599, 61,~ 9.w.~ (2d)?O. 

It will be noted that the provisiona of K, B. 555, 

of not less than two hundred and 

Judic’Lal Mstrlct Court altuated In smaller~ doiant~ies @ud 

shorthand‘ reporters of each Judicial District Court situated 

in larger counties to receive a greater c,ompensation for 

their .serviee~ than like .officers in ‘Bexar and Tarr.ant Countiea., ‘Applying the above-quoted prihciplesof statiat&y 

construction :and constFtut,ioaal flaw to our preseht la4 

(Ii. B,. ,555); hit is our opinion that the Le@slatU?e by’ putting in the exceptron, c.lause in JiGuse ,Bill, 555,‘fixed g Classification ,wh$ch is: arbi’trary and,which had no tr’ue relevancy 

to the purpose of ~the; leg&slation.; Therefore; ‘St is oQr oplnion that~ the, exception clause to II. B. 555, supra, Xs ICI~- 

CohStitutiOnal ‘and void. 

: 

(& .1 :, in 

.I. : 
Iiotxor~able H. Patz Fdwerds, page. 6 

The question as to whether or not H. B. 555 can 

stand without the exception clause necessarily-follows. We 

answer this question in the negative. 

In the case of Anderson v. Wood, 152 S.W (2d) 

1084; the Supreme Court stated the following: 

"It is very well settled that a statute excepting certain counti,.> arbitrarily from its 

operation is a 'local or special' law within 

the meaning of the above constitutional provldon. Hall v. Bell Coumy, Tex. Civ. ~pp., 138 

S.W. 178, affirmed by the Supreme Court, Bell 

County v. Hall, 105 Tex. 558, 153 S.W. 121; 

Webb v. Adams, 180 Ark. 713, 23 S.W. (26) 617; 

g;ate ex rel. Johnson v. Chicago, B. & Q. R. 

1% MO. 228, 93 S.W. 784, 113 Am. St. Rep. 

66i.j 6 R.C.L. 129, 59 C.J. 736. This last proviso exempting counties with a population between 

195,000 and 205,000 is a part of the original act, 

and is not an amendment. thereto. Since it is 

void< the whole act must be declared void. because 

otherwise the court would have to apply the act to 

all counties having a population In excess of 

125.cO0, and this would be giving the act a 

broader scope than was intended by the LeglslaTiibe --- The rule applicable in such cases Is thus 

zstated in Lewis' Sutherland, Statutory Construction, 2d Ed. vol. 1, sec. 306, as follows: 'IS, 

by striking out a void exception, proVis0 or 

other restrictive clause, the remainder, by reason 

of its generality, will have a broader scope as 

to subject or territory, its operation is not in 

accord with the legislative intent, and the 

whole would be affected and made void by the invalidity of such part.' Substantially the same 

rule is announced In Ruling Case Law, vol. 6, p. 

129. The above rule was So&lowed by this court 

in Texas-Louisiana Power Co. v. City of Farmersville, Tex. Civ. App., 67 s.w. (2d) 235, 238: See, 

also, James C. Davis Directo,r General, v. George 

Wallace, 

325. ” 

257 U.S. 478, 42 3. Ct.. 164, 66 L. Ed. 
. 

Honorable H. Pat Edwards, page 7 

See also Womack v. Carson, et al, 70 9. w. (za) 

416, (Comm. of Appeals); and 39 Tex. Jur., p. 22. 

To allow H. B. 555 to stand and operate without 

the exception clause would give broader scope and meaning to 

tl?c bill than was the intention of the Legislature. There 

is no basis which would allow one to, claim that the Legislature would have passed Ii. B. 555 without the exception clause. 

For additional authorities see casea cited in 39 Tex. Jur.; 

p. 22. 

It is, therefore, the opinion of this department 

that H. B. 555, Chapter 291, Acts of the 49th Legislature, 

1945, IS unconstitutional and void. 

In our Opinion No. O-6776 we were requested merely 

to interpret certa3.n provislo~s Gf H. B. 555, supra. Therefore, we aid not pass on ao.y constitutional question in said 

opinion. IO view of our holding herein, we hereby withdraw 

our Opinion No. O-6776. 

Yours very truly 

ATTORNEY CERERAL OF TEXA?, 

BY 

J . C . .D%?; 

Assistant’ 

. .- 

‘~/Si@mif ‘, 

John Reeves 

APPROVED OCT, 19, 1945 

/s/ Grover 3ellc-rs 

ATTORNEY CEXERAL OF TEXAS 

APPRO-KXD 

OXNIO’L COMlVT’IEE 

By C.WA:B., Chairman