. .

Hon. HenryWade

DistrictAttorney Dallas County Dallas, Texas OpinionNo. V-1315

Re: Constitutionalityof Dallas County Road Law.

Dear Sir:

Your request for an opinionrelates to the constitutionalityof House Bill 961,4cts 47th Leg., R.S. 1941, ch. 

### 458,p. 729, as amended. The following questions are presented for determination:

"1. Is the entireAct (H.B. 961, Ch. 458, 47th Leg., Reg? Sess. as amendedJune 3, 1949 and June 2, 1951) unconstitutional
as being in contravention ofArticle III, Sec. 

### 56,Texas Constitution,which prohibits the enacting of local and special laws to regulate the affairs of a county, to regulate labor or elections, orwhere already existing general laws can be made applicable?,

"2. Are the following Sections, if taken individually,valid and constitutional: 1, 

### 4 (autopurchasingpart), 

### 6, 3, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 

### 23, 24, 

### 25, 26,and 27?



### “3. Are the following Sections, if taken individually invalid and unconstltutional: 

### 2, 3, 4 f except for auto purchasingpart), 

### 5, 7, 9, 10, 11, and 12?

"4. If any of the sectionsare found to be unconstitutional,is there sufficient basis for the remaining sections to stand and be considered in force and effect?



### ‘5. Are the provisionsapplying to the naming and ptiescrlblng of the functions of the County Rngineer (Sec. 4) and the County PurchasingAgent (Sec. 11) constitutional?Hon. HenryWade, Page 2 

### (V-1315)

“5. May the Legislature constitutionally sin le out Dallas County in Sections 22 and 2& and make the provisions of this Act as constitutedapply solely to that county to the exclusion of all others?"

House Bill 

### 961, commonlyreferred to as the "DallasCounty Road Law,' is described in its caption as "An ?ct to create a more efficientroad system for Dallas County, Texss, for the maintenance of the public roads and highways other than duly designated State highways of Dallas County." House Bill 951 was amended in 1949by House Bill 

### 862, Acts 51st Leg., R.S'.1949, ch. 311, p. 579. The effect of this amendment was to delete the salary limitationsof the county engineer in Section 

### 4 and the salary limitations of the~purchasingagent in Section 11 of the act. It was again amendedby Senate Bill 

### 383,Acts 52nd Deg., R.S. 1951, ch. 

### 328, ,proz6:;,by

adding a new section to be known as Secwhich gave the commissioners'court the power to'createa countyplanningboard and vested in the court the power to adopt a master plan for roads of the county.

Since House Bill 951 applies only to Dallas County, it is apparent that the bill falls ;rithinthe classificationof a local or special law. Fort Worth v. Bobbitt. 121 Tex. 14. 35 S.W. **2d** 470, 41 S.W.2d 228-j; Bexar County-v.Ty

### 152s.w.2'd ?&d-as such. itmust come within the'prohibitionof Section 

### 56 ofArticle III of the Constitution of Texas.

Section 

### 55,Article III, Constitution of Texas, provides in part:

"The Legislature shallnot, except
as otherwiseprovided in this Constitution, pass any local or special law,

.

. . "Regulatingthe affairs of counties,

e D

. "Authorizing the laying out, opening, altering, ormaintaining of roads, highways, streets or alleys;Hon. Henry Wade, Page 

### 3 (V-1315)

”

. . . "And in all other caseswhere a general law can be made applicable,no local
or special law shallbe enacted:

. . .*

However, Section 9,Article VIII, Constitution of Texas,provides in part:

"And the Legislaturemay pass local laws for themaintenance of the public roads and highways, without the local notice required for special or local laws."

This provision,which was added to the Constitution by an amendment adopted in 

### 1890,is an exception to Article III, Section 

### 56. Henderson County v. Allred, I.20 Tex. 

### 483,40 S.W.2d 17 (1931).

As stated in Quinn v. Johnson, 91 S.W.2d 499, 501, (Tex.Civ.. App. 1936, error dism.),

” It is no longer open to question t&a; any special or local road law which limits its scope to what may reasonably be consideredmatters pertaining to the 'maintenance'of the public roads and highways is valid. (Citations.)"

The scope'of the term "maintenanceof the oublic roads and highways" as used inArticle VIII. Section 9, has been-discussed in several cases. In Smith v. Grayson County 44 S.W. 921, 923 (Tex. Civ. Aoo. 1897. error ref.),'the courtheld that the maintenance-ofroads including the laying out ofnew roads, saying:

n

. . .By the use of the words ‘maintenance of public roads and highways,' the framers of the constitutionhad reference tomaintaining a system of public roads and highways, which would include all the necessary powers to provide system of highways." and keep up a

In Tarrant County v. Shannon, 129 Tex. 

### 254, 104 S.W.;?d

4, 5, 7 (19371, the court said:Hon. HenryWade, Page 4 

### (V-1315)

"The validity of H.B. No. 416,which conferred the alternativerights in condemnation upon certain counties falling within the provisions of this act,was not challenged or questioned In the principal opinion of the Court of CivilAppeals. However, in the concurring opinion the questionwas raised that H.B. No. 

### 416violates article 

### 8, section 9 and article 

### 3, section 

### 56, of the Constitution; and it further questioned the correctness of the construction of article 

### 3, section 

### 55, of the Constitutionby this court in the case of Dallas County v. Plowman, 99 Tex. 509, 91 S.W. 221, in which case it
was held that local or special road laws may be enactedwithout giving the local notices required for special or local laws.

"

. *

. "Furthermore, in that case the court in substanceheld that the phrase 'maintenance of the public roads' in article 

### 8, section 9, of the Constitution,amendment of 

### 1890,authorizing the Legislature to pass local laws for such purpose, includes in its scope the laying out, opening, and constructionof new roads as well as the repairing of those already laid out. And the act of the 24th Legislature, supra, enacting a local road law for Dallas county, which provided for condemnationof lands by the county upon the same proceedings as by a railroad companywas not, in view of such amendment,rendered unconstltutionalby article 

### 3, section 

### 56, and article 11, section 2, of the Constitution. It was also held, in effect, that the meaning of the word 'maintenance'in the amendment to article 

### 8, section 9, of the Constitution is not restricted, as in article 3, section 

### 56, subdivision 

### 5,by the context, to the keeping up of roads, as distinguished from laying out and opening them, nor is it confined to its narrow and literal construction;but itmust be held to embrace all the thingsnecessary to accomplish the obviouspurpose of the.

Hon. Henry Wade, Pege 5 (w-1315)

amendment, including the opening as well
as repair of roads. The local law passed for Dallas counwwas held valid."

Al.so see Tinner v. Crow, 124 Tex. 368, 78 s.W.2~ 

### 588 (1935).

The subjectmatter includedwithin a special road lawmust be incidental or necessar!?to the maintenance of roads. InAustin Bros. v: Patton, 

### 288 S.W. 

### 182 (Tex.Comm.App. 1926), the court stated at pages 187, 188:

”

. . . The authority conferredby section 9, art. 

### 8, of the Constitution, supra, is not 'toenact specialroad laws' of all kinds, for all purposes indiscriminately,but is authoritymerely to pass local laws for themaintenance of the public roads and highways.

. . . "

. . .As shown above, our Supreme Courthas held that the words, 'the maintenance of public roads,' include the laying out, opening, and construction of new roatts. Therefore the authority conferredby the constitutional amendment carrieswith it the right to regulate the affairs of the county only in such respects as are necessarily and appropriately connectedwith or incidental and subsidiary to the object of such limited power -- themaintenance, including the laying out, opening,an$ constructionof publicroads.

. . . Since, as shown by the above cases, the Legislaturemay pass local or special laws pertaining to the "maintenance"of roads and highways, it becomes necessary to determinewhether the variousprovisions of the Dallas County Road Law come within themeaning of that term as interpretedby the Texas courts, and thereforewithin the scope of the exception contained in Section 9 ofArticle VIII.

It iswell settled that in determining the constitutionalityof a statute it is the duty of the courts to uphold the legislativeenactmentHon. HenryWade, Page 6 (V-1315)

if at all possible and to adopt any reasonable constructionwhich will place the statute inharmony with the Constitutionrather thanonewhich will
cause the statute to be in violation thereof.Pickle

z-e91 Tex. 

### 484,44 S.W. 

### 480 (1898). Also, is our duty to give effect to this rule of statutory construction in considering separate sections of an a~ct,especiallywhere the Legislaturehas expressly provided for severabilityas ithas done in Section 

### 25 of the act under consideration. Att'y Gen. Op. V-1253 (1951). With these rules in mind,
we will now discuss the separate sections of the act.

Section 1 of the statuteprescribes the powerand authority of the Commissioners'Court of Da~llas

County to adopt a system for the construction and maintenance of the public roads of the county. The provisions of this section are clearly within the scope of the exception authorized in Section 9 ofArticle VIII, and, in our opinion, the section is constitutional.

Likewise, Section 

### 6 relates directly to the constructionand maintenance of roads. This section confers on the Commissioners'Court the right to purchase or condemnpropertynecessary for the constructionand maintenance of roads and prescribes the procedure for condemnationproceedings. A provisiongiving similar authority to the Commissioners' Court of Tarrant County was held valid in Tarrant County v. Shannon, supra. It is our opinion that Section 5 is constitutional.

Section 8 authorizes the Commissioners' Court of Dallas County to require the draining of ditches orborrow pits which impede the proper drainage of water a~ccumulating on or along roads and highways. We think the powers conferred in this section clearlypertain to the maintenance of roads and that the section is valid.

Section o abolishes road overseersand payment of road taxes by labor and requires all moneys received from direct taxation for the construction and.maintenance of roads be placed to the credit of the County Road and Bridge Fund.We think these are valid provisions.Hon. Henry Wade, Page 

### 7 (v-1315)

Sections 

### 13 through 17 relate to the issuance of bonds for road and bridgepurposes and themoneys received from the sale of suchbonds. In Henderson County v. Allred, 1.20 Tex. 

### 483,40 S.W. 2d 17, 19 (1931], the Supreme Courtheld:

"

. . . If the Legislaturepossessed the power to controlby local or special laws the laying out, construction,and maintenance of public roads in Henderson county,which cannotbe doubted under the foregoing decisions, then itmust necessarily follow that it has the power to control and regulateby such a law the expenditure of all funds used for such purposes. , . .Indisputably the Legislaturehad the power to authorizeHenderson county by local or special law to issuewarrants or bonds as a means of obtaining funds to be used in the buildigg and operation of its road system

. . . Since the enactment of these provisions is not inhibitedby Section 56 ofArticle III,we have only to considerwhether any of the provisions of these sectionsviolate other constitutionalrequirements.

Section 13 provides in part%

"Whenever the CommissionersCourt shall deem it necessary or expedient to build, construct, improve,reoair, or maintain roads of a permanent nature in said County with the proceeds of the sale of bonds issued for road and bridge purposes under the terms of thisAct, said Court shall at any regularmeeting pass and record in itsminutes a resolution setting forth that it is the sense of said Court that public roads and bridges ofa permanentnature shall be built, constructed, improved,repaired, or maintained in said County and that the County
or any Road District thereof should issue its bonds to raise money for that purpose in an amount to be named in such resolution, and said resolution shall be submitted to the vote of the property-owning,Hon. HenryWade, Page 8 (V-1315)

qualified voters of said County at any regular or special electionwhich the Court may order for thatpurpose, and if at such election a two-thirdsmajority of the votes cast shallbe for such resolution

. . .”

It is clear that the "road and bridge* purposes refer to the fifteen cent road and bridge tax authorizedby Section 9 ofArticleVIII (countywide road and bridge tax)* This is made clearerby Section 15, which provides that "nothing in this language or in the terms of thisAct shallbe held to impair the right of the County or any Road District thereof to issue bonds under theprovisions ofArticle 3, Section 52 of the State Constitution and the Statutes enactedpursuant thereof." In otherwords, unlimited tax road bonds issuedby counties and road districts are excepted from the provisions of theAct.

Section 13 provides for the issuance of bonds by the County “or any Road District thereof.” A road district can issue bonds only under Section 52 ofArticle III.'The 15d road and bridge tax under Section 9 of ArticleVIII is a county-wide tax, and may be levied only over the entire county. Any attempt to authorize a road district to levy a tax under Section 9 of Article VIII would be unconstitutional. Clearly, therefore,Section 13 is unconstitutional in attempting to authorizeroad districts to issuebonds under Section 9 ofArticle VIII. Section 13 is valid,however, insofaras it pertains to the issuance of bonds by the county for road and bridgepurposes. Sections 14, 15, 16, and 17 likewise are valid to the extent that they apply tc such county bonds and themoneys received from the sale thereof.

Section 18 prescribes themanner inwhich contracts for road improvementsare to be awarded. The making of contracts for road improvements,in
our opinion, comeswithin the scope of a valid local road law,

Section 25a,which was added by the 1951 amendment, authorizes the Commissioners'Court to create a County Planning Board “for the purpose of .Hon. Henry Wade, Page 9 (V-1315)

regulating countyplanning,platting and subdivisions." The sectionalso confersupon the Commissioners' Court the samepowers within the area under its jurisdictionwith reference to planning, platting, and approving of subdivisionas cities
are empowered to exercise underArticle 974a,V.C. S. The CommissionersfCourt is authorized to adopt rules and regulationsgoverning the subdividing and platting of territory, "which said rules and regulations shall take into considerationthe general layout of highways, roadways, their connection with eitherpresent or projectedroads, and how these highways and roadwaysmay connect with streetswithin the city, or projected streets, connecting therewith,so as to providean orderly development in the interest of publichealth, safety,and generalwelfare of the county." Although themotive for the grant of authority is in broad language,we think the effect of the section is to enable the Commissioners'Court to provide for an orderiy development of the county road sys- ~tem.~ The statute expressly provides that the Comissioners' Court or the planningboard is not given authority to set up zoningregulations or building codes. In a letter.opinionto the Governor of Texas on Nay 31; 1951,,ws'held that this sectionwas validly enacted under Section 9 ofArticleVIII.

You have asked us specificallywhether certain sections of the statute are unconstitutional, and we shallnow refer to these particular sections.

Section 2 provides that each county commissioner shall devote all ofhis time to the duties of his office and be in attendance at all sessions of the court. It also fixes the compensationof the county commissionersand provides that such compensation "shall be in full for all servicesrendered said county." We believe this sectionviolates Article III, Section 56 of the Constitution,since it encompasses a regulation of county affairs other than the maintenance of roads. A1tRel.t v. Gutzeit, 109 Tex. 123, 201 S.W,.400 (1918).Kitchens v. Roberts, 24 S.W.2d 464 (Tex.Civ. App.'1930, error ref.).

Section 3 requires the CountyJudge to appoint standing committees composed of two or more county commissionersfor supervising the various departments of the county'saffairs. LikeSection 2,Hon. HenryWade, Page 10 (V-1315)

this section embracesmatters outside the scope of a road~law and is in violation of Section 56 of Article III.

Section 4 authorizes the appointment of
a county engineer and prescribeshis duties and qualifications. He is given the custody and control of all machinery, equipment, tools, supplies, and all otherproperty purchased out of the Road and Bridge Fund to be used in themaintenance of county roads. All maintenance,repair, drainage, and constructionwork on all county roads is placed underhis control and supervision. However,he is at all times "under the supervisionand control" of the commissioners'court.

Although Article In, Section 56 of the Constitutionprohibits the passage of any local
or special law "creating offices, or prescribing the powers and duties of officers, in counties " Henderson County v. Allred, supra, states Ehat'Alocal or special road laws are expressly exempted from the operation of the provision of section 56, article 3." (40 S.W.2d at 18.) Also, in S~mith

v. Grayson County, supra, it is said that 'none of the prohibitions comed in section 56, article 3, are applicable" to a local road law. But seeAustin Bros. v. Patton, supra; Commissioners' Court of Limestone County v. Garrett, 236 S.W. 970 T L1

. D 22).Anderson v. Houts, 240 S.W. s4F(Te??CivpPApp. l&2]. It is possible, therefore, that the Legislaturemay validly enact a local road law creatingan office,provided the duties of the office are such as are incidental or necessary to the "maintenance"of roads. However, it is unnecessary for us to express an opinion on this questionhere, sincewe think it is clear that the county engineer in question Is an employee and not an officer.

In Dunbar v. Brazorla County, 224 S.W.2d 738 (Tex.Civ.App. 1949, error ref.), the court held that a county road engineerwas not a public officerbuta member of the administrativepersonnel of the county road department. We think the
same is true of the county engineerprovided for Dallas County, even though Section 4 refers to the position as an "office*,provides for a term of two years, and requireshim to take an oath and execute a bond.Ron. Henry Wade, Page 11 (V-1315)

Various tests have been used by the courts in determiningwhether a particularperson is an officer or an employee, some of these tests being tenure of office, requirement of a bond, duty to take an oath of office, and the
manner inwhich the compensation of the position is fixed. See Rates, 53 A.L.R. 595 and 140A.L.R. 1076. However, all of these tests are merely circumstantialand not conclusive. The most important test; and the only onewhich appears to be conclusive, is whether the creation of the position involves a delegation to theperson filling the position of some part of the sovereignpower or functions of government to be exercisedby him for the benefit of the public. This test is set out in 53 A.L.R. 595 as follows:

“Itmay be stated, as a general rule, deducible from the cases discussing the question, that a position is a public officewhen it is createdby law,with duties cast on the incumbentyhich involve
an exercise of some portion of the sovereign power and in the performance of which the public is concerned,,andwhich also are continuing in theirnature an% not occasional or intermittent;while a public employment, on the otherhand, is
a positionwhich lacks one ormore of the foregoing elements.n

A similar statement of the rule is found inMechem, Public Offices and Officers (1889) 5, Sec. 4:

‘The most important characteristic which distinguishesan office from an employment contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the beneflt of the public; that some portion of the sovereignty of the country, either legislatlve, executive or judicial,attaches, for the timebeing, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.’Ron, HenryWade, Page 12 (V-1315)

The rule as above statedhas been quoted with approval in the following Texas cases:Kimbrou h Barnett, 93'Tex. 301, 55 S.W. 120 (1902);d iihnson, 141 S.W.2d 698 (Tex.Civ. App. 1940, error zp"be;z;on v. Ellis County, 84 S.W. 1097 (Tex.

. . Under the above test,we think it is clear that the county engineer authorizedby Section 4 of this azt is an employee and not an officer, since he has not been delegated any of the sovereignpower or functions of government to be exercised by him for the benefit of the public,but is under the complete supervision and control of the Commissioners'Court.

Section 4 also authorizes the Commissioners' Court to purchasenecessary automobiles for the use of the county cormnissioners ing of public roads," "in the building and constructto be paid for out of the Road and Bridge Fund. A like wrovision in the road law for Jefferson County was upheid in Quinn v. Johnson, 91 S.W.2d 499 (Tex.Civ. App. 1936, error dism.).

The last paragraph of Section 4 provides that the county judge, county auditor, and county commisionersmay be allowed necessary travelingexpenses when traveling in connectionwith county business, to be paid out of either the General Fund or the Road and Bridge Fund. The provision does not limit the expenses to those incurred in connectionwith themaintenance of roads. In Att'y Gen. Op. O-4827 (194'2), this provision of the Dallas County Road Law was held unconstitutional in the following language:

nD s

.If the provision of said road lawwith reference to the travelingexpenses of the commissioners'court quoted in your letterhad been limited to traveling expenses of the conmissioners court with reference to themaintenance of the public roads of the county and payment limited to the Road and Bridge Fund of the county such provisionwould have been valid. But the provision under considerationhere is clearlynot so limited. Under the unequivocal assertions of the court in the caseofJameson v. Smith, supraE61 S.W.2d 520 (Tex.Civ.App. 1942, error ref. w.0. m.17, and authorities therein cited, it isHon. HenryWade, Page 

### 13 (v-1315)

our opinion that said provision of the Dallas County Road Law, quoted in your letter, allowing traveling expenses to the County Judge, CountyAuditor and County Commissioners for traveling expenses on officialbusiness generally, is not a road law, and is unconstitutional as a special or local law attempting to regulate the affairs of a countywhere a general law couldbe made applicable." (Emphasisadded throughout.)
Therefore,we are of the opinion that Section 4 is valid and constitutionalwith the exception of that portion declared unconstitutional in the above mentioned opinion.

Section 

### 5 authorizes the Commissioners' Court to employ special counsel "to advise the Court
or the Commissioners thereof in specialmatters wherein the services of said counselmay be required and also in special cases to conduct the litigation of the County in which the interests of said Countymay be involved." The employment of counsel isnot limited to matters pertaining to the constructionand maintenance of roads. We are of the opinion that this section violates Section 

### 56 ofArticle III and is thereforeunconstitutional.

Section 

### 7 makes it the duty of the County Auditor of Dallas County to audit expenditures from the County Road and Bridge Fund, road district funds,
or "any~otherfunds, special,general, or bond funds
now on hand or hereafterheld by said County." It is possible that this section, or at least the quoted phrase, is invalid for the same reason that Section 

### 5 is invalid. However,we see no need for determining this question at this time in view of the fact that it appears to be in harmony rather than in conflict with the powers of the CountyAuditor under general laws relating to his office.

Section 11 authorizes the appointment of
a "PurchasingAgent V for the county and provides that all county purchases 'of every kind and character" shall be made by the purchasing agent. This section also prescribes themanner in which contracts for the purchase of supplies and equipment eof any kind or character" are to be made. InasmuchHon. HenryWade; Page 14 (V-1315)

as its provisionsare not limited to purchases incidental to themaintenance of roads,we are of the opinion that this sectionviolatesArticle III, Section 56 of the Constitution. Miller
v. El Paso Count S.W.2d 919 (T,x.yEi~~p~apb.O~~~~~.v. Kent, 781

Section 12 relates to the use of convict labor in Dallas County. It is not limited to labor upon the public roads. Since convict labor may be utilized for other purposes (Art. 794,V. C.C,P.), the provisions of Section 12 attempt to regulatematters in addition to themaintenance of roads. We think this section violates Section 

### 56 ofArticle III of the Constitution.

Section 19 makes it unlawful for a member of the Commissioners'Court or any county official to become financially interested in any contract for Dallas County road work or for the purchase or sale ofmaterials or supplies for the county in connectionwith roads. The penalty prescribed isa fine of not less than $500 nor more than $1000, or imprisonment in the county jail for not more than one year, ore both fine and imprisonment. Article 

### 363,V.P.C., defines an identical offensewith respect to such contractsand prescribes a penalty of not less than 

### $50nor more than $500.

In Ex parte Sizemore, 

### 8 S.W.2d 134 (Tex. Crim. 1928);the courtheld that a provision in a local road law-whitialloweda credit of fifty cents
a day for convict labor on the public roads was unconstitutional,since it was at variancewith the general statute allowing a credit of $3.00 a day. The court there laid down this general rule:

"A lawwhich makes different punishments follow the same identical criminal acts in the differentpolitical subdivisions ofTexas violates both our state and Federal Constitutions. It fails to accord equal rights and equal protection of the law, and a convictionunder it is not in due course of the 'lawof the land.'"

Also see Exps&B Carson, 159 S.W.2d 126, 129 (Tex. Grim. 1942). The Sizemore case arose out of a conviction for an offense aenounced by the Penal CodeHon. HenryWade, Page 15 (V-1315)

rather thanby a local road law, but we think the
same principle is applicablehere. Therefore, that portion of Section 19which conflictswith the general law on the same offense is unconstitutional.

Section 20 prohibits the dumping or depositing of garbage or refuse upon the public roads and highways of Dalla,s County and pre~scrlbes a fine of not more than $200 as the penalty. We think this provision is likewiseunconstitutionalinsofar
as it conflictswith the general law,Article @%a, V.P.C., which prescribes a penalty of a fine not less than $10 nor more than $200 for the same offense. In Ex parte Sisemore and Ex parte Carson,

F the local law prescribed a more onerouspena ty than the general law, whereas the penaltyhere is the less onerous since it does not prescribe a minimum fine. However, in State v. Fowler, 193N.C. 290, 136 S.E. 709 (1927), a local law which imposed
a fine only,while a statute applicable to thewhole State imposed a fine or imprisonment,was held to be unconstitutionalunder both the Federal. and State Constitutions,as a denial of equal protection of the laws.

Section 2O$alsomakes it an offense for any person to permit'sewage fromhis premises to drain upon the public roads and highways. We have been unable to find a general statute defining a similar offense. While earlier ooinions of the Court of CriminalAppealscited inKExparte Sizemore had suggested that a new offenseapplicable in one locali%y only could be created in a-local road law,
we think the opinion in Ex parte Sizemore casts doubt upon the correctness of these formerholdings. However, in the absence of an express decision on this question,we are inclined tohold this portion of Section 20 valid as being within the scope of Section 9 ofArticle VIII.

The holding in the Sisemore case also raises a question of the validity of Section 10, which makes it an offense for any person to fail to pay tr the county treasurerwithin five days of its receiptmoney derived from the sale of property or the use of machinery and equipment of the county. However, we think Section 10 must be held invalidHon. HenryWade, Page 16 (V-1315)

for another reason. This section extends to the “sale of propertyand material ordered sold by the CommissionersCourt and from the use and rental ofmachinery and equipment ownedby the County,n and provides that themoney shallbe placed to the credit of the Road and Bridge Fund. It includesall sales and all rentals, regardless ofwhether the propertywas purchased out of the Road and Bridge Fund orwas used in connection with the maintenance of roads. It therefore transcends the bounds of a road law and is invalid under Section 56 ofArticle III as an attempt to regulate countyaffairs by local law.

Section 21 provides that all fines for any violations of any of the provisions of the act and all moneys collectedby virtue of any contract~:xecuted

under the.

provisions of the act shall be applied to the Road and Bridge Fund. We think the general purpose of this section comeswithin the purview of a local road law and is constitutional.

In your sixth question you ask whether the Legislaturemay single out Dallas County in Sections 22 and 24 and make the provisions of this act as constitutedapply solely to that county to the exclusion of all others. We think the validity of these sectionsrests on the same basis as the validity of other sectionspertaining to themaintenance of roads. Since the Legislaturehas the power to enact local legislation on this subject, it may include in the act a definition of the meaning to be given the terms used, so long as the definitions do not extend the provisionsof other sections beyond the limitspermittedby Article VIII, Section 9~of the Constitution. We do not find any objectionableprovision in Section 22 of the act. Likewise, since the Legislature could enact a local road law for Dallas Countg,it could also provide the extent to which the local road law should control over other statutes. We are of the opinion that Section 24 is valid.

You ask whether there is sufficientbasis for the remainder of the act to stand in the event certain sections of the act are unconstitutional. The answer to this question dependsupon whether the unconstitutionalportions can be severed from theHon. Henry Wade, Page 17 (V-1315)

valid portionswithout materially affecting themain purpose of the legislation.

(3rd Section 25 of theAct provides:

"If any section, subdivision,paragraph, sentence, clause, or word of this Act be held to be unconstitutionalthe remaining portions of same shall,nevertheless, be valid, and it is declared that such remaining portionswould have been included in thisAct though the unconstitutionalportionhad been omitted."

In 2 Sutherland, Statutory Construction ed. 1943) 178-179, Sec. 2404, it is said:

'In determining separability, legislative intent governs, but intent that the act be enforced in so far as valid is notthe the sole consideration. If the legislature so intended, the valid parts of the act will be upheld ‘unless all the provisionsare connected in subjectmatter, dependent on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannotbe presumed the legislaturewould have passed,the one without the other.' To be capable of separate enforcement, the valid portion of an enactmentmust be independent of the invalidportion and must form a complete act within itself. The law enforced after separationmust be reasonable in the light of the act as originally d~rafte;?.

The test is die tGv or not the le,gislature

would have passed the statute had it been presentedwith the invalid features removed."

Also see City of Taylor v. Taylor Bedding Mf

.co., 215 S.W.?d 21.5(Tex.Civ.Appr 3.948

ev. A *Christopherv g8 s.w:2?;;;

ence 131 Te?’ arber v. Flor-
-irk, 119 S. 36) Nichols p. ig?zqT--- Daniel v. Tyrrell &Garth Inv. Co., 127 Tex. 213, 93 S.W.2d.

372 (1935).Hon. Henry Wade, Page 

### 18 (V-1315)

The Dallas County Road Law validly authorizes the Conrmissioners’ Court to adopt an over-all plan or system for the constructionand maintenance of countyroads and outlines themethod for acquiringreal property necessary thereto. It authorizes the employment of a county engineer who is to be in direct charge of road maintenance. It regulates themanner of making contracts for the constructionand maintenance of the roads and for the purchase of necessarymaterials and supplies. While we have found the bond provisions to be unconstitutionalto the extent that theypurport to authorize road districts to issuebonds for road and bridge purposes under Section 9 of Article VIII, the countymay issue road bonds under this law. Also, the county or any road district thereinmay issuebonds for road purposes under the general laws.Various otherprovisions of the act are also valid. We think the valid provisions, standingalone, form a complete and enforceable piece of legislation,and we believe that the general legislativepurpose of providing “a
more efficient road system for Dallas County”may be given effect after the unconstitutionalprovisionshave been severed from the act. This is in accord with the legislative intent declared in Section 

### 25.

SUMMARY

Those’provisions of the Dallas County Road Law (HouseBill 961,Acts 47th Deg., R.S. 1941, ch. 

### 458,p. 729, as amended) authorizing the Commissioners’Court to adopt
a system for the constructionand maintenanceof countyroads (Section1);providing for the appointement of a county engineer and prescribinghis duties, and authorizing the purchase of automobiles for use of the county commissioners in the construction of roads (Section 4); relating to acquisition of rights of way for roads by purchase
or condemnation (Section 5); requiring the draining of certain ditches and borrow pits which affect roads (Section

### 8); abolishing road overseersand payment of road taxes by labor and requiring road taxmoney to be placed in the County Road and Bridge Fund (Section 9); authorizing the issuance ofHon. HenryWade, Page lg (V-1315)

bonds and regulating the handUnS ofmoneys received therefrom, insofaras they pertain to bonds issuedby the county for road and bridge purposes (Sections 13-17);regulating themanner of awarding contracts for road improvements (Section18);providing for the application of certainmoneys to the Road and Bridge Fund (Section21); and authorizing the creation of a countyplannine board and conferrineupon the Commissioners’ Court certain authority over subdivision of territory outside the jurisd~iction

of cities and towns (Section25a)
were valid1.y

enacted under Section g, Article VIII, Constitution of Texas, authorizing the passage of local laws for the mainte- nanceofpublic roads and highways.

Those provisions fixing the compensation~ of the county commissioners (Section 2); requiring the, appointment of standing committees composed ofmembers of the Commissioners’ Court to supervise the various departments of the county’saffairs (Section 3); authorizing travelin expenses for certain county officials 7Section 4); authorizing the employment of special counsel by the Commissioners’Court (Section 5); requiring the deposit ofmoneys derived from the sale or rental of county propertywithin five days after its receipt (Section 1.0); authorizing the appointment of a purchasing agent to handle a.l.1 countypurchases end prescribing the
msnner ofmaking contracts for all.county supplies (Section 11); and regulating the
use of convict labor (Section 1.2) are in violation of Section 55, Article III, Constitution of Texas, prohibiting the passege of certain local or special laws. Sections19 and.20, prescribing certain offensesand the penalty therefor,are invalid insofar as they conflictwith the general I.a~w.

The valid portions of the Dallas County Road Law,standinS alone,form a complete and enforceable piece of legislation, and the general legislative_

Ron. Henry Wad+, Page 2& (v-1315)

purpose of providing "amore efficient road'systeil~for

Dallas County" may be effe~ct&afte? the unconstitutionalprovisionshave,been severed PrOm the act.

APPROVED:

J. C. Davis, Jr. County Affairs Division

Everett Hutchinsbn ExecutiveAssistant

Charles D. Mathews First Assistant Yours very truly,

PRICEDANIEL Attorney General

Mary K. Wall

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