**Honorable** Wardlow Lane,

Chairman, State Affairs, **Senate** ofTexas, Austin, Texas Opinion WW-34. Re: Constitutionality ofSenate Bill 103,ofthe 55th Legislature,

Dear Senator Lane: prescriving the maximum working hours for Firemen, on a graduated basis in,regard tothe population ofa County, and related questions.

You have requested an opinion onthe constitutionality ofSenate Bill 103 ofthe 55th Legislature, andthe Amendments thereto, currently pending before the Senate Committee on State Affairs, Senate Bill 103is to amend Section 6, of Chapter 38, Acts of the 49th Legislature, as amended (codified as Section 6ofArticle 1583-1, Vernon’s Texas Penal Code), so as to delete provisions relating tomaximum working hours ofpolicemen; to prescribe themaximum working hours of firemen incities with **more** than Ten Thousand (10,000) inhabitants, on a graduated basts in relation to the population of the county; and to provide for the minimum number of platoons incertain cities; and the sequence of **tours** of duty of platoon members. This bill as written, or as amended by Senate Committee Amendment No. 2by Senator Krueger, would apply to all counties having a population ofmore than Ten Thousand (10,000) inhabitants. The maximum working hours offiremen ineach category is graduated inrelation tothe population ofthe county.

Section 56 of Article 111 of the Constitution of Texas provides: “The Legislature shall not, except as otherwise provided inthis Constitution, pass any local or specLa1 law,.

. , . ,‘I

4. I.

. . . . . “Regulating the affairs of cdunties, cities, towns, wards or school districts;

‘I ,,

. . . . . Inthe case ofMiller v. El Paso **County, 130** Tex. 370, 150S. W. 2d 1000, the Court stated:

### Hon. Wardlow Lane, Page 2, (WW-34)

“Notwithstanding the above constitutional provision /Art. III; Sec. 5G;the courts recognize,,in the.Legislatare a rathes,broad ~$%wertomake classiG~&ions fsr legislative,, pur.pos’$s:and to,enact laws for the regulation thereof, even. though ,such legisl:tion may be applicable only to a particular class or, infact, affect only the inhabitants of a particular locality; but such legislation must bs intended to apply uniformly to all who may come within the classification designated inthe Act, and the classification must be broad enough to include a substantial class and must be based on characteristics legitimately distinguishing such class from others with respect tothe public purpose sought tobe accomplished by the proposed legislation. ln other words, there must be a substantial reason for the classification.

. . . .”

1,

. . . .Resort to population brackets for the purpose ofclassifying subjects for legislation is permissible where the spread of population is broad enough to include or segregate a substantial class, and where the population bears some real relation tothe subject of legislation and affords afair basis for the classification.

. . . .” This principle of law has been consistently recognized by the courts and by the Attorneys General ofthis State. Rodriguez vs. Gonzales, 148Tex. 537, 227 S.W. 2d, 791(1950); Bexar County vs. Tyner, 128 (1936): Oaklev vs. Kent.3 Tex. 228 97S.W. 2d, 467
,-.~~,. - ~~~~~~, BlS. **W.** 2d 919(Tex. Civ. App., 1944), Anderson vs. Wood, 137Tex. 201, 152S. W. id, 1084 (1941j,Attorney General’s Opinion R-2461.

Clark vs. Finley, 93 Tex. 171,54S. W. 343, recognized that substantial differences in population,s of counties was a basis for legislation fixing compensation of officers onthe theory that the work devolved upon an officer was directly proportionate to the population ofthe county. This was recognized as sufficient to justify a larger compensation for officers incounties having a large population as compared with compensation to like officers incounties having a smaller population. This same doctrine applies in like manner to regulation of the working hours offiremen by means of a graduated bracket regulation ona population basis. Since ithas be,enclearly recognized that the work devolving upon officers is directly proportionate to the population ofthe county, a sufficient basis tojustify a graduated scale ofmaximum working hours is thus established. Itfollows that the Legislature may determine that the work load offiremen incounties with a large population is more strenuous than that in counties with a small population. Therefore, amore restricted number ofmaximum work hours is a reasonable regulation. Senate Committee Amendment No. 1restricts the application of the bill to cities containing the population of “not more than 400,000 inhabitants”, and eliminates at least three cities from the Act, i. e. Dallas, Houston and San Antonio. Amendment No. 1is based upon the determination that cities havingHon. Wardlow Lane, Page 3 (WW-34)

the larger population would not have as great or greater need for regulated maximum working hours as would small cities. The Legislature cannot determine the positive and the negative ofthe same propostion and expect the Act to pass the test ofbeing based upon a reasonable classification.

In Attorney General’s Opinion R-2414, quoting Oakley vs. Kent, Supra, the following reasoning was adopted: “If population affords a ground for creating the office of county purchasing agent, itmust be upon one oftwo theories:

“(1) The smaller the population ofthe county the gr,eater the need for such an office.

“(2) The greater the population of the county the greater the need of such an office.”

“The bracket is from 140,000 to 220,000. Upon the first theory the law is arbitrary and discriminatory because itexcludes counties below 140,000, which would have a greater need than the counties inthe bracket, Upon the second theory, the law is likewise arbitrary and discriminatory inthat itdoes not embrace counties having a population above 220,000 which counties would have a greater need for a purchasing agent than counties within the bracket, Neither Senate Bill 103of the 55th Legislature, nor Senate Committee Amendment No. 2, by Senator Krueger sets themaximum working hours of firemen incities with a population of less than 10,000 inhabitants. The Legislature can determine that there is no need for regulation incities of such size. Therefore, the exclusion ofcoverage of such cities inthe Bill as written and Senate Committee Amendment No. 2, does not prevent the Bill as written nor Amendment No. 2from being a general law within the meaning ofSection 56 ofArticle III of the Constitution of Texas.

In order for a population bracket to be used as a classification device, the premises upon which it is based must be consistent.

SUMMARY Senate Bill No. 103and Senate Committee Amendment No. 2use a consistent classification cLeiric~e:andare don.stitutional. Amendment No. 1is inconsistent with the basic premise ofthe classification device that the work load incounties withHon. Wardlow Lane, Page 4 (WW-34)

a larger population is more strenuouq. If adopted, itwould make this Act a “local or special law” in violation of Section 56of Article III ofthe Constitution ofTexas. Very truly yours, WILL WI,LSQN ATTORNEY GENERAL 

# ByB d -, B, H. Timmins, Jr. Assistant BHTji :F APPROVED: OPINTON COK%TlTW By H. Grady Chandler, Chairman