OFFlCE OF THE **ATfORNW** GENERAL OF I= AUBTlN

OllOYCI SPLL=Rs ryou*l* cci*rrL

HonorableH. 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 salariesof oourt r+ortere.
We have received Jtour letter of recent date requesting an opinion from this departsient OQ the .abovdsabject matter.

House kill 555, Chapter 291, .ihtsof the 49th *gislatwe, 1945, is as. follows: “section1, 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 hereafterread as sollows: “l&ticle 2326.
“‘The official shortWnd reporter of each’~’ Judloial District Court, civil or crI.ninal, and the official shorthandreporter 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 determiaedby 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

HonorableH. 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 transcriptfees and tr;Iveli;j3

acS hote:i

expenses of official shorthand reporters,as is nom providedby iaw.

“‘The salary shall be paid monthlyby the Commissioners

Court of the county or cciunties in the JudicialDistricts,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 provisionsof this Act are and, shall be held and Con&trued to be cumulativeof 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 conflictwith 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 commoditiesand that the official shorthand reporters are being paid below the present standardfor comparable SQrVbZQ8, create anHonorableH. Pst Edwards,page 3

emergencyand an Imperativepublic necessity that the Constitutional Rule requirin,bills to be read on three severaldays 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 coostitutionalitgof H.B. 555 because of the exception underlined above. It is.your opinion that said exceptionamounts to fixing a classification which is arbitraryand 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 ,ofour State Constltutlon.

Section 56 of Article III ia In part as .Sollows: "SQC. 56. The Legislature shall not, except as otherwiseprovided In this Constitution, pass any local or special l~aw, authorieing:. 11

. . . . "Regulatingthe affaira of counties,hities,' towns, wards or school districts; II

. . .. "Creatingoffices, or prescribingthe 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, (Commissionof Appeals), the Court IU COnStr~iing the above quoted section of the State ConstitutionStKitQd 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 applicationis not. so inflexiblyfixed as to prevent it ever being applicableto other counties.

. . ..

Honorable II,

Pat Edwards,page 4

“Rotwithstanding

it Is true that the Legislaturemay classify countiesupon a basis of pOpUbti.On for the purpose Of fT?cingcompensation 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 substancea local or special law the form of a general law. It is well recognizedthat in determining whether a law is public, general, special or local the courts Will look to its substanceand practicaloperations rather than to its.title,form and phraseology, because otherwiseprohibitionsof 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 recognizedthat substantial

differencesIn populationsof counties could be made a basis of leglslatioaSIxIng compensatiaof 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 populationof the county. This has frequentlybeen recognizedby courts as creating a sufficient distinctionto justify a larger compensatloafor county officers In counties having a large populationas compared with compensationto 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:

“Resortto populationbrackets for purpose of classifyingsubjects for legislationisHonorable II. Pat Edwards,page 5

permissible

where spread of population is broad enough to include or segregatea substantial class and populationbears some real relation to subject of legislation and affords fair basis for classification

. . , .

It has been legitimately employed in fix;& .ieesof offices in certain cases but even then it is permissibleonly where the’spread OS population is substantialand ia sufficientto include a real class with characteristics which reasonablydistinguishit from others as applied to the oontemplatedlegislation, and affor#s a Tai?? bas’is for the classification. I’ (Ende&sccripg ‘ours)
EOr additionalauthoriteson the above-quoted rules see Lewis SutherlandStatutor ea.), p. 397 et seq; of Ft; W0rth.v. Bob-. (2d) ,228;

Supreme Smith v. State, 49 S.U. (26) 739; Rand01 1; ‘81S.W. 18; ir. Stite, 46 3.5-T. (2d) 484; Fr1tter.v.West, 65 S.W. (2d) 14, wrlt refused; r 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 provisionaof 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.,‘Applyingthe above-quoted prihciplesof statiat&y construction:and

constFtut,ioaal

flawto our preseht la4 (Ii. B,. ,555); hitis our opinion that the Le@slatU?e by’putting in the exceptron, c.lause in JiGuse ,Bill, 555,‘fixedg Classification,wh$ch

is: arbi’trary

and,whichhad 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 ‘andvoid.

: (& .1 :, in .I. :Iiotxor~able H. Patz Fdwerds,page.

6

The question as to whether or not H. B. 555 can stand without the exceptionclause 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,.> arbitrarilyfrom its operationis a 'localor special' law within the meaning of the above constitutionalprovldon. Hall v. Bell Coumy, Tex. Civ. ~pp., 138 S.W. 178, affirmedby 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 exemptingcountieswith a populationbetween 195,000and 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 countieshaving a population In excess of 125.cO0,and this would be giving the act a broader scope than was intendedby the LeglslaTiibe --- The rule applicable in such cases Is thus zstated in Lewis' Sutherland,StatutoryConstruction, 2d Ed. vol. 1, sec. 306, as follows: 'IS, by strikingout a void exception,proVis0 or other restrictiveclause, 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 legislativeintent, and the whole would be affected and made void by the invalidityof such part.' Substantiallythe same rule is announced In Ruling Case Law, vol. 6, p. 129. The above rule was So&lowedby 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..

HonorableH. 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 operatewithout the exception clause would give broader scope and meaning to tl?c bill than was the intentionof 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 additionalauthoritiessee 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 requestedmerely to interpretcerta3.n provislo~sGf 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 CEXERALOF TEXAS APPRO-KXD OXNIO’L COMlVT’IEE By C.WA:B.,

Chairman