May 3, 1965

HonorableR. Ii.Cory, Chairman OpinionNo. C-429 State Affairs Committee House of Representatives Ret Constitutionalityof Austin, Texas House Bill 583.

Dear Represe~ntative~cory:

You have requested an opinion from this office 

### concerning the constitutionalityof House Bill 583 of the 59th Legislature.

Section 3 of Rouse Bill 583 provides inpart that from and after the effectivedate of theAct no person ehall:

“(a) Offer, use, make use of, or attempt to offer,use ormake use of, any gift enterprise of any nature whatsoever,directly or indirectly In or with any retail sale of gasoline, 011, OP other petroleumproduct for use in anymotor vehicle.
“(b) Use, issue, furnish or distribute, in, with, or for the retail sale of any gasoline, oil,
or other petroleumproducts for use in any motor vehicle any tickets, coupons, certificates,carda, stamps, or other similar devices, as a part of or In connectionwith any gift enterpriseas herein defined.”
Section 2(b) of House Bill 583 providea that “gift enterprise” shallmeans

I, s .the sellingof anythingwith a promise, either’expressor implied, to give anything in considerationof such sale or any plan, scheme, device or arrangementwhereby the sellereither expressly or impliedlypromise8 to give the buyer anything In considerationof such sale and shall

-2020-Hon. R. H. Cory, page 2 (c-429)

includebut not be ing, distributing, the sale of goods, limited to the issuing, supplyor furnishing, in,with, or for furnishing, wares, ormerchandise any tickets, coupons, certificates,cards, stamps, or other similardevices,which ahall entitle the.purchaser receiving the samewlth the sale of such gooda wares ormerchandise to procure from any person, firm, association,or corporation,any goods, wares, ormerchandiseupon the production of any number of such tickets, coupons, certificates, cards, stamps, or other similardevices."
Section l(a) and Section 7, the emergency clause of the Act, of House Bill 583, state that the Act 18 enactedpursuant to the provisions of Section 47 of Article III of the Constitutionof Texas. Section 47 of Article III of the Constitution of Texas provides that:

"TheLegislature shallpass laws prohibiting the establishmentof lotteriesand gift enterprises In this State, as well as the sale of tickets in lotteries, gift enterprises or other evasions involving the lotteryprinciple, established or existing in other states." (Emphasisadded),

In passing upon the constitutionalityof House Bill 583, the initial considerationmust deal with the queetion of whether the acts prohibitedby House Bill 583 are the type of acts which the provisions of Section 47 of Article III of the Constitutionof Texas directs the Leglelature to enact laws to prohibit.

House Bill 583, in effect,prohibits and makes It a misdemeanor, puniehableby a fine or lmprlsomnentor both, for anyone to use, issue OP distribute any tickets, coupons, certlficates, Card8, stamps, or other sSmllar devices in connectionwith the retail sale of gasoline, 011 or other petroleumproducts for
use 

### in any motor vehicleunder an arrangementwhich would entitle the purchaser of the gasoline, 011 or other petroleumproduct to procure goods, wares ormerchandlae In exchange for such tickets, coupons, certlficatee,cards, stamps or other similardevices,

For the foregoingprohibited acts to fall within the scope of themandate found In Section 47 of Article III of the Constitutionof Texa8$ such act8 must in actuality, and not merely in name, be a lottery,gift enterprise or other evasion involving the lottery principle.

The provisions of Section 47 of Article III of the Constitutionof Texas were diecussed at great lengthby the Supreme
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Hon. R. H. Cory, page 3 (C-,429)

Court of Texas in the case of City of Wink v. QrlffithAmusements co., 129 Tex. 40, 100 S.W.2d 645 (193o), in which the court stated:

.It is hardly necessary to argue that the 'B&& Night' plan of the defendant In error if not a lottery, is at the very least a 'gift enterprise involving the lotteryprincipleO, and obviouslyan evasion of the lottery laws of the state. That 'giftenterprIseaDare a form of lottery evasion is 80 well known that courts **take** judicialknowledge of theplan.

. . .*

I,
e .If it be granted that the plan of defendant In error!8 IBankNight' was not a lotterybecause a chargewas not made for the registration entitling one to participate Sn the drawing (and this is the only distinction which Is here or couldbe made), then It clearly
comes within the condemnatorvterms of the Constitution,because it Is a 'giftenterprise' lnvolvln the o er _g e, whlc e author ies hold I that princlpl by which something Is to be given zy chance.

. *eq

"Ingeneral, Itmay be said that chance Is the basic element of a lottery. Unless a scheme for the awarding of a prize requires that it be awarded by a chance, it is not a lottery. o
. D
"Thereare9 however, in a lottery, according to the authorities, three neceaeary element89 namely, the offering of a prize, the award of the prize by chance, and the giving of a consideration for an -unity to wfn the prize. 0 .Butthe Constitution condemn8 those things which fall short of containing all of the essential elements of a lottery, namelv. those thinns which involve the lotterv principle, of whi& PchanceDis the one which-constitutes the very basis of a lottery, and without which it would not be a lottery. ' (Emphasisadded).

The decision of the Supreme Court of Texas in City of Wink v. Griffith Amusement Co., supra.,makes it abundantly clear that the course of conduct condemnedby Section 47 of Article **III** Of the Constitution of Texas must be either a lottery or involve the lotteryprinciple, and to fall within this category 8.nyso-called lottery,gift enterprise or other evasion involvingthe lottery principlemust have present the essential element of a lottery-- namely, the element of chance. The prize or thing to be awarded must be determinedbv chance. These orincioles laid down bs our Supreme Court in City of Wink v. Griffith Amusement Co., 8upraQ,

**-2022-**Hon. R. H. Cory, page 4 (C-429)

that a lottery or gift enterprise ^.

_ . _ Involves the element of chance, flnas support In numerous aecislons from other jurlsdlctions. S@&II~Orio v. Jacobs, 275 P. 563 (WaSh.SUp. 1929); D'Orlo v. p Candy C0.9 2b6 13.1037 (Utah Sup. 1928); RUSSell v. Equltable Loan & Security Co., 58 S.E. 881 (GeorgiaSup. 1907); State v. Fox-Great Fall8 Theater Corp., SUP. 1942) G it d J 

### 132 P.2d 689 (Montana

; n e ewelersMfg. Co. v. Keckle , 90 P. 781 (Kan. Sup. 1907) Bills v. People, lb.1P 2d 1 1947); City of Oiford v.Ritz Theater, Barker v. State, 193 S.E. 605 lb0 So~8fi~~::d~g~~; (0 eorgia Ct.App. 1937).
While the provisions of House Bill 583 state that It is enactedpursuant to the provisions of Section 47 of Article III of the Constitutionof Texas, and define8 the prohibited acts as a gift enterprise,we are of the opinion that when the prohibited acts are tested by the principles set forth In Cit of Wink v GriffithAmusement Co., supra., that an easenti*8L lacking, and i the absence of such element the acts prohibited in House Bill g83 cannotbe regarded as the lottery, gift enterprise or other evasion Involving the lotteryprinciple to which Section 47 of Article III of the Constitution of Texas is directed.

The essential elementwhich is absent from the acts prohibited in HOUSe Bill 583 is the element of chance. In the instant case the prize or thing to be awarded is not determined by chance. The purchaser of gasoline, oil or otherpetroleum product8 at retail, for use In his motor vehicleand who is given tickets, coupons8 certificates,cards, stamps or other slmllar devices, is not dependentupon the element of chance In the procuring of his award or prize in the form of gOOdsr wares ormerchandise--hemerely surrendersa specifiednumber of tickets, coupons, certificates,cards, stamps OP other slmllar device8 in exchange for certain specifiedgoods, wares ormerchandise.

Consequently, in view of the decision in City of Wink
v. Griffith Amusement Co., supra.,and the principles setforth therein,we are of the opin'ion that the acts prohibitedby House Bill 583 are not the type of acts which the provisions of Section 47 of Article III of the &nstltution of Texas direct8 the Legislature to enact laws to prohibit,

As we are of the opinion that Section 47 of Article III of the Constitution of Texas is neither amandate to, noP authorization for, the Legislature to prohibit the course of conduct set forth in House Bill 583, it then become8 necessary, in passing upon the constitutionalityof House Bill 583, to ascertain if the provisions of the Act, which clearly regulate, if not in fact prohibit, certainbu8inesSeS and occupations,as well as restricting the use of private property and the freedom of contract, are a valid exercise of the police power of the State. If the provisions of

-2023-Hon. R. H. Cory, page 5 (C-429)

House Bill 583 are within the police power of the State, the Act is constitutional. However, should the provisions of House Bill 583 exceed the policepower of the State, the enactment then contravenes the due process clause of the Constitutionof Texas, Section 19 of Article I, and is unconstitutional.

It Is clear that in order for House Bill 583 to be a proper exercise of the police power of the State itmust be reasonablynecessary to the protection or improvementof the public health, safety,morals, good order, comfort and general welfare. 12 Tex.Jur.2d 415, ConstitutionalLaw, Sections TO111. As was statedby the court in Ex Parte Smythe, 116 Tex. Grim. 146, 28 S.W.2d 161 (1930t and in Neel v. T Control Board, 259 S.W.2d 412 $ex.Civ.App. exas Liquor 1933, error re *, n.r.e.), thebill must:

II

. . .have some reasonable relation to the subjects included in suchpower, and the lawmust tend, in a degree that is perceptible and clear toward the prevention of some offense ormst evil, or the furtherance of some object within the scope of the police power. 6 R.C.L. Constltutional Law, Paragraph 227:"' (Emphasisadded).

It was said of the police power of the State in Houston & T.C. Ry. Co. v. Dallas, 98 Tex. 396, 84 S.W. 648 (1905),at page and quotedw approval inNeel v. Texas Liquor Control Board, ~~~r~~,,,,,,,~:~~~~~a':' S.W.2d **b4b** (Civ.App. 1949, error ref.)

"It is commensuratewith, but does not exceed, the duty to provide for the real needs of the people in theirhealth, safety, comfort, and convenienceas consistentlyas may be with privateproperty rights. o .Butas the citizen cannotbe deprived of his property without due process of law9 and as a preventionby force of the police power fulfills this requirement only when the power is exercised for the purpose of accomplishing,and In a manner appropriate to the accomplishment of, the purpose for which it exists, it may often become necessary for courts 0 s .to inquire as to the existence of factsupon which a given exercise of the power rests and into the manner of its exercises and If there be an invasion of property rights under the guise of this power, without justifyingoccasions OP In an unreasonable, arbitrary or oppressiveway3 to give the injuredparties the protectionwhich the Constitution secures,It

-2024-Hon. R. H. Cory,page 6 (C-429)

Large discretionnecessarily is vested in the Leglslature to determinenot only the requirementsof the public lnterest, but also by what measures those interestsmay be properly and effectively secured, If there is room for a fair difference of opinion as to the necessity and reasonableness of an enactment on a subject lyingwithin the domain of the police power the courts will not Interfere. 12 Tex.Jur.2d 422, ConstitutionalLaw, Sec. 76. Rut, as was pointed out by the courts in the foregoing decisions, the judgment of-theLegislature does not conclude lnquiry by the courts as to the existence of the facts essential to support the exercise of the policepower.

Section 1 of House Bill 583 provides in part that:

"TheLegislature finds as facts and determines that.2
II

. . . "(b) The sale of gasoline, oil and other petroleumproducts at retail for use Inmotor vehicles is a substantialand integralpart of the economic life of the State,providing a means of livelihood for in excess of 40,000 Texas gasoline service station operatorsand their families
as well as providing employment for thousands of other Texas citizens employedby suchpetroleum retailers.
"(c) The State of Texas and the Texas public have a vital interest in themaintenance of a sound and healthy economy In the retailing of gasoline and other petroleumproducts,not onlybecause of such retailers' contributionsto the State's total economy and the care andmaintenance of motor vehicles traveling on Texas highways, but also, because such retailers each year collect for the State of Texas hundreds ofmillions of dollars on taxes on gasoline and otherpetroleum products in which taxes such retail operatorsare being forced to furnish and distribute stamps, coupons and other such tickets or devices as a part of variouskinds of gift enterprises established in the retail sale of gasoline, oil and other petroleumproducts.
"(d) The gasoline retailmarket in Texas is in a state of chaos and despair with thousands of service station operatorsbeing forced out of .* business each year due to longprevailing, bare subsistencemargins of retail operations over

-2025-Hon. R. H. COrY, Page 7 (c-42q)

which such retail operatorshave no control and from which they are helpless to extricate themselves since,unlike,the free and competitive market prevailing in the sale and distribution of ordinaryproducts and commodities, service stationdealers and operators are, inpractically all instances,not free to bargain as to the prices for which they purchase gasoline and otherpetroleumproducts from their supplier and unable to freely and Independentlydetermine the salesprice of their products.
"(e) Gift enterprisesand the giving, dlstributingoand the furnishing of tickets, coupons, certificates, cards, stamps and other similar deviceswith retail sales of gasoline, 011 and other petroleumproducts are substantialcontributing factors to the prevailing chaoticretail market conditions in Texas and the losses and business failures of thousands of small independent service station operators each year.'!
The only decision by the courts of this State concerning the prohibition of acts similar to those found in House Bill 583, namely the giving of trading stamps in connectionwith the purchase of a product, is the case of Texas Liquor Control Board v. Super Savings Stamp Company, 303 S.W.2d b,36(Tex.Civ.App.193'0 Whir the court In this case stated that itwas within the authority 0: the Texas Liquor Control Board to promulgate a rule or regulation prohibiting the giving of trading stamps in connectionwith the sale at retail of alcoholicbeverages this decision affords little, if any ,we are of the opinion that

, assistance in connection with the Issue of whether the giving of trading stamps In connectionwith the retail sale of gasoline, oil and other petroleum products Is within the police power of the State. The sale of alcoholic beverages is by Its verynature in an area in which the Statemay exercise its police power for the protection of the public health, safety,morals9 good order, comfort and general welfare. However, the exercise of the police power of the State in this specificarea dealingwith the sale of alcoholicbeverages would not necessarily justify Its exercise in the area of the retail sales of gasoline, oil and other petroleumproductswhich do not have connectedw9th:;thezi.r sale the possible detriment to the public interest or welfare.

While there have been no court decisions In Texas dealing specificallywith the constftutionalityof a statute containingprovisions similar to those contained fn House Bill,583, there have been an abundance of court decisions in other jurfsdictionsupon similar statutes.,

-2026-Hon. R. H. Gory,page 

### 8 (C-429)

While there is a definite split of authority on this question, the greatmajority of the State court opinionshold that statutesprohibiting and regulating theuse of trading stamps are unconstitutionalas not being within the sphere of the police



### z-co.,jfht3.
ices. 

### 226m&s.

Stamp Legisiatibn; 

### 134A.L.R..Constitutlonalityof Statute Prohibiting Giving of Premiums or Trading Stamps with Purchase of Commodities; 

### 133A.L.R. 1087, Constitutionalityof Statute PPOhibiting Giving of Premiums or Trading Stamps.

In fact, there appears to be only two decisions In the United States since 1919--Steffeyv. City of Casper, 

### 357P.2d 

### 456 (wyo. 

### 1961)and Cushenberryv. Shanahan, 190 Kan. 

### 378,378 P.2d 

### 66 (1963),which have held this type of legislation to be constitutional.

The minority view that legislationprohibiting or severely curtaialng the use of trading stamps is a valid exercise

-2027-Hon. R. H. Gory, Page 

### 9 (C-429 )

In Ed. Schuster& Co. v. 

### 737 (1941),a statutewhlch,,in effSteff'es, 237Wis. 41, 295 N.W. ect, prohibited the use of trading stamps to avoid the state's fair trade act was sustained. That casemay be regarded. as being on different footing from that of a statutewhich, in effect, abolishes theuse of trading stamps.

Trading stampshave been saidby the courts taking the minority view to8 ?

I appeal to cupidity and lure to improvidence," the Rast case);produce.?provokedand systemizedreckless buying," the Eer case); "encourageindiscriminateand unnecessarypurchasing" and"force othermerchants intousing stamps or suffer loss of trade by failure to do so" (the Pitney case). They have been called the tools of a businesswhich "is a mere parasltetn [theUnderwood case). They have further been said to produce ,,pern‘fcious

and evil effects," (theWgig;e case); and to tak: a large sum of money. e .fromthe mere an and his customers9 and add $0 the gross cost of living of all the people of the District, (theKraft case).

However9 a most forceful rebuttal to theminority view's arguments is found in the case of Lawton v. Stewart Dry Goods Co., 197 Ky. 

### 394,247 S.W. 

### P48 16 (1923jswhere the court stated8

"In the first place it is said that the trading stamp or premium system encouragesprofllzate and wasteful buying and operates as a lure to Improvidence. As a matter of fact, it is simply a convenientmethod of allowing a discount for cash. Therefore, it encourages cash buying and operates as an incentive to prudence' and economy. But let us assume that it is a lure tc improvidence, Have we reached the point where the prohibition of every business that leads to improvidencemay be regarded as a proper governmental function? Nothing ismore alluring to the purchaser

-2028-Hon. R. H. Gory, page 10 (C-429)

,

than an attractive advertisementor a beautiful shopwindow, but can it be said that themerchant who employs suchmeans to Increasehis profitsmay be put out of business because, perchance, some onemay see the advertisement or look in the-window and be Induced to buy when he cannotafford to do so? If so, how f may the doctrineAbe carried? Why not prohi rIt all forms of sdvertislng and the sale of all articles of luxury on the ground that they lead to extravagance? Why not require everymerchant to restrict his stock to overalls or cotton dresses so as to reduce the 'lure'to a minimum? r

"Anotherobjection Is that the trading stamp Introduces intobusiness a middleman who receives
a profit, not only from the stamps sold, but from those that are not redeemed, and thereby adds to the cost of the article. If themiddlemanmay be dispensedwith, what is to become of all agents, factors,brokers, and commissionmerchants? Indeed, why not go all the way and prohibit not only all retailmerchants, but all wholesalemerchants and jobbersand compel everybody to buy directly from themanufacturer?

"Anotheralleged evil is that the trading stamp or premium gives opportunity for fraud in values and prices. It is true that onemay use the trading stamp or premium dishonestly, just
as he may be dishonest in other respects, but we fail to seewherein the'use of~trading stamps or premium affords any greater opportunity for fraud than already exists. Indeed, all businesses afford an opportunity for fraud in values and prices, but a business thatmay be dishonestly conducted shouldnot be prohibited because of the dishonesty of some who are engaged ,inthe business.

"Another contention is that the trading stamp gives opportunity for coercion, in that merchants are compelled to buy in order to compete with their rivals. Doubtless the trading stamp companymay ask onemerchant to buy its stamps on the ground that his competitorshave bought or intend to buy, but that is not a form of coercion of which the.~~law will take notice. The samemethod of making sales is followedby all businesshouses> particularly the wholesalers who desire to introduce somenovelty or a new

-2029- ..

Hon. Ft.

H. Cory, page 11 (C- 429)

line of goods, and, if the legislatureundertook to prohibit every businesswhose agents indulged In the practice of arousing a spirit of rivalry among theircustomers, the channels of trade would
soon be closed."

The court stated in Sperry & Hutchinson Co. v.McBride, supra., that:

"Tradingstampshave been inuse long enough so that any purchaser ofmerchandise who is Interested in acquiring and converting them to his advantage cannot be said to be likely to be deceived as to their value.

.thereis no reasonable cause to believe that the'dealerwho offers them in consideration of cash or approved ccedit saleswill resort to fraudulentpractices.

In People v.Victor, 287 Mich. 506, 283 N.W. 606 (1939), the Court heldunconstitutional a statutewhich orohibited -ertain classes ofmerchants from giving premiums, such as trading stamps to promote sales. The court said:

'Bygiving a premium, the defendant was merely offering the purchasingpublicmore for itsmoney. Surely there is nothing reprehensible in that. It Is apparent that the giving of a premium has no evil effectswhich the Legislature has sought to correct.

. .There is no reasonable relation between the prohibition of the giving of
a premium and the protectio$ of the public health, morals, safety and welfare.
Attorney General'sOpinion No. WW-1047 (1961)dealt with the constitutionalityof House Bill 438, Acts of the 57th Legislature,Regular Session (1961). House Bill 438, which was not enacted into law, contained essentially the same type of
fi rovisions found in the present House Bill 583. While House Bill 38 was much broader in scope and not limitedmerely to the retall sale of gasoline, oil and other petroleumproducts for use inmotor vehicles as is House Bill 583, each of these bills are essentially the same in operation as they would prohibit the giving of trading stamps or other similardevices in connection with retail sales.

Attorney General's OpinionNo, WW-1047 (1961)held that House Bill 438 was unconstitutional and stated therein that!

-2030-Hon. R. H. Cory,page 12 (C- 429)

"Doubtedless,trading stampsmay be a source of annoyance to some. The use of these stampsmay be especiallyworrisome and, indeed,
even costly to many merchants who feel obliged to use them in order tomeet the competition from other stores that do so.But does this reasonablynecessitate the assertion of the police power? In our opinion, It clearly does not. served In Spann v. Dallas, supra., it was obin page >lb:

'Itis with commonhumanity--the average of the people that police lawsmust deal. A lawful and ordinaryuse of property is not to be prohibitedbecause repugnant to a particular class.'
"Moreover,would it not be just as reasonable to outlaw advertising or credit or 'freeparking' at Fto.+es

and 'freedelivery service' or 'free gift flapping' or any one or more of the countless other trade inducementswhich are customarily utilized by merchants In a competitivebusiness economy. These 'extras'surely add to the cost of doing business just as do trading stamps. They also oblige the othermerchants to do likewise in order to hold their trade. Indeed, somemerchants may not be able to meet the competition. But is that not what free enterprise is: the right of every citizen to use his property as he chooses, and as best he cans without interferencefrom the government, so long as the rights of others are not infringedupon? And, there is no right to be free from fair competition,that 'right'and our American right to competehonestlybeing mutually exclusive.'

"It follows from the foregoing that, in our judgment,not only the weight of authority,but the better reasoning,pre onderates in favor of the view that House Bill t38 bears no reasonable relation to any legitimate objectwithin the scope of the police power, and, therefore, the bill contravenes the due process clause, Section 19, Article I, of the Constitution of Texas."

We are of the opinion that the result reached in Attorney General'sOpinionNo. WW-1047 (1961), concerning the

-2031-., .

Hon. R. H. COrY, Page 13 (C-429)

constltutlonalityof House Bill 438, and the principlesupon which results were based are equally applicable to House Bill 583.
While the statementof factual findings in Section 1, Subsections (b) through (e), of House Bill 583 attempts to overcome one of the objectionsraised in Attorney General's Opinion WW-1047 (1961) to the effect that:

"Significantly,House Bill 438 is silentas to the ultimate evil at which it is directed. It fails to cite any reason why it could be to the public interest to prohibit and restrict theuse of trading stamps in themanner provided in the bill. We can perceiveno danger to the public welfare in the use of trading stampswhich would warrant the completeprohibition of theiruse by retailers,wholesalers, stamp companies, consumers and otherswho might use such stamps. We are left to conclude that the reason for the enactment falls among thosewhich have been discreditedby themajority of the courts of the country."

**We** are of the opinion such attempt is nevertheless insufficientto cure the unconstitutionalityof House Bill 583 for two reasons.

First, the ultimate evil sought to be eliminated by the prohibitions in House Bill 5839 as stated **by** the factual findings in Section 1 thereof is the chaos and economicdifficuities being encounteredby thosepersons engaged in retail sale of gasoline, 011 and petroleum products foruse inmotor vehicles who give trading stamps in connectionwith the sale of their product. This chaos and economic difficulty referred to in **House** Bill 583 does not affect the public generally,but is limited to only that segmt.,t of business involved In the retail sale of petroleumproducts for use inmotor vehicles. AS stated in 16 C.J.S. 944, ConstitutionalLaws % 195r

I, o ./Ti?le

legislature cannot.usethe police'poweras a subterfugeto do something that it otherwise could not do In the infringement of private interests or the restraint of private rights. The police powermust be exercised for public purposes only; the legislaturemay not exercise the police power for private purposes, or for the exclusive benefit of particular individuals or classes. e 0 .'
Such being the cases House Bill 583 appears to be merely an effort to ease the economicplight of a segment of the businessworld

-2032-.

Hon. R. H. Cory, page 14 (C-429)

rather than a valid exercise of the police power of the 

### State In the interest of the health, safety,morals, good order, comfort and welfare of the public in general.

Secondly, the great weight of authority, and the trend of court decisions since 1919 in that only two courts since 1919 have held similar acts to be constitutional,while at least fifteen stateshave held legislationbanning the
use of trading stamps to be unconstitutional, leadsus to the conclusion that statu,tes prohibiting and regulating the use of trading stamps, such as House Bill 583, are not within the valid exercise of the police power of a State and are therefore unconstitutional.

In view of the foregoing,we are of the opinion that 

### HouseBill 583 isunconstitutionalby reason of being beyond the scope of the police power of the State 

### and in 

### contravention of Section 19 of Arti~cle I of the Constitutionof Texas, which provides:

'Sec. 19. No citizen of this State shall be deprived of life, liberty,property,prlvileges or immunities,or in anymanner dlsfranchised, except by the due course of the law of the land.!

We are not passi upon whether the findings of fact which appear in paragraphs % , (d) and (e) of Section 3 of Houee Bill 583 violate our antitrust statutes.

SUMMARY

House Bill 583, 59th Legislature,Regular Session (1965) is unconstitutionalby reason of being beyond the scope of the police power of the State and therefore in contraventionof Section 19 of Article I of the Constitutionof Texas.
Very truly

### yours,

WAGGONER CARR Attorney General

Pat Bailey Assistant

P%:mkh

-2033-, .



### Hon.R. B. Gory,page 15 (C-429)

APPROVEDS OPINIONCOMMITTEE

w. v. **Geppert,** 

### Chairman Roy Johneon SamKellcy K&mal;tz

APPROVEDFORTRE ATTORNEYOENElRAL BY; StantonStone

-2034-