Honorable William J. Tucker
Executive Secretary
Game, Fish and Oyster Commission
Austin, Texas
Dear Sir:                       Opinion No. O-3772
                                Re: Constitutionality of House
                                     Bill No. 954, House Bill No.
                                     i(26,and House Bill No. 855
                                     of the 4'7thLegislature.
The questions which your letter of recent date propounds for our
opinion, relating to Rouse Bill No. 954, House dill No. 826, and
House Bill No 855, Acts of the 47th Legislature, may 'bebriefly
stated as follows:
(1) Touching each you ask if these acts, which are game and fish
laws, are unconstitutional as in contravention of Section 56 and
Section 5'7of Article III of the Constitution of Texas.
                                  ',
(2) Pertaining to House Bill No. 820, you ask also if it is suf-
ficiently definite and certain in its provisions.
(3) ifithreference to House Bill No. ti55,you ask also if it is
unconstitutional as an unlawful delegation of legislative authority.
House Bill No. 954 authorizes the unrestricted taking of dollared
Peccary or Javelina in three counties, whereas by prior general
law the taking of these animals is restricted to certain months
and to a certain numner.
House Bill   No. 826 authorizes the taking of fish in one county by
any method   with more than two hooks, specifically referring to
trotlines,   whereas by prior law the use of trotlines in such
county, as   well as in other counties, was restricted.
House Bill No. 855 seeks to regulate the hunting of quail in one
county ~bysetting out four distinct and different regulations,
none of which would become effective in the county until and unless
adopted oy a majority vote of the qualified voters of the county
in an election called for such purpose. The violation of a reg-
ulation, after its adoption, 'IGas
                                 declared a misdemeanor.
                                                                   -   .




Honorable William J. Tucker, Page 2   O-3772


Pertaining to the first question, you suggest that the constitu-
tional authorization for the enactment of special laws for the
preservation of the game and fish, in certain localities of this
State, is lost to the Legislature if the particular law permits
the taking of more game and fish than theretofore permitted by
prior law.
Sections 56 and 57 of Article III of the Constitution of Texas,
as pertinent, read as follows:
     "Section 56. The Legislature shall not, except as otherwise
     provided in this Constitution pass any local or special
     law, authorizing:
     1,
      ......
     "And in all cases where a general law can be made applicable,
     no local or special law shall be enacted; provided, that
     nothing herein contained shall 'beconstrued to prohibit the
     Legislature from yassing special laws for the preservation
     of the game and fish of this State in certain localities."
     "Sec. 57. No local or special law shall be passed, unless
     notice of the intention to apply therefor shall have been
     published in the locality where the matter or thing to be
     affe:ctedmay ue situated, which notice shall state the sub-
     star~ceof the contemplated law, and shall be puolished at
     leaet thirty days prior to the introduction into the Legisla-
     ture of such bill and in the manner to be provided by law.
     The evidence of such notice having been published, shall be
     exhibited in the Legislature, before such act shall be passed."
In our opinion the provision "for the preservation of the game and
fish of this State" is not restricted in its application to laws
enacted by the Legislature which psrrnitthe taking of less game
and fish than prior laws permit?;en:;cbe taken. Presumably all
statutory regulations are for i!-i~
                                  preservation of the game and
fish of this State, Proper pre :::c?
                                 \-.~~rat,
                                     ion and conservation may re-
quire at times greater restricti-ns than at other times. Clear-
ly, it would seem, the framers oi'the Constitution intended that
the Legislature should be authorized to regulate the taking of
game and fish in Texas unhampered by the restrictions regarding
local or special laws. \Verethis not so, once the Legislature has
enacted a general game and fish law, or a law restrictive in
certain particulars, it would thereby forfeit its privilege of
relaxing these laws by subsequent special laws appertaining to
certain localities. uVedo not believe this was the intent of the
constitutional provisions before us.
Honorable J. Tucker, Page 3        o-3772


You also raise the question of whether Section 57 of Article III,
in its requirement of advance publication and notice, applies to
game and fish laws.
In Stephensen v. VVood,35 S.W. (2d) 794 (Galveston Court of Civil
Appeals); 119 Tex. 564, 34 S.W. (2d) 24d (CornApp.), this question
was involved. The Court of Civil Appeals held, first, than an
act of the Legislature for the protection of the fish of the State
is not a ~tlocal~~
                 or V1special"law, in the sense that such terms
are used in Sections 56 and 57 of Article III of the Constitution.
And, second, that by the last clause of Section 56 of Article
III, the authority of the Legislature to pass such laws without
the notilcementioned in Section 57 was specifically reserved.
The Act under consideration prohibited the taking of fish by means
of seine,a,nets, etc. from the coastal waters of certain counties
and did not operate in the coastal waters of other counties.
Judge Critz, now of the Supreme    Court, writing for the Commission
of Appeals in the case, did not    allude to the second proposition,
that is the question of advance    publication or notice in relation
to game .and fish laws, 'outheld   as follows touching the "local"
or "specialIilaw question:
     "It seems to ne contended by Stephenson that the instant
     law is'local or special within the meaning of the above-
     quoted provisions of our State Constitation because its
     enfssrcementis restricted to a particular locality, and does
     not include all coastal waters. This contention is utterly
     untenable. It is the settled law in this state that a sta-
     tute is not local or special within the meaning of sections
     5b and 57 of article 3 of our state Constitution, even though
     its enforcement be restricted to a particular locality, if
     persons or things throughout the state are affected thereby,
     or if it operates upon a subject in which the people at
     large are interested. Clark v0 Finley, 93 Tex. 171, 54 S.W.
     343,345; Reed v. Rogan 94 'Tex.177, 59 S.;i.255, 257; Logan
     v. State, 54 Tex, Cr. R. 74, 111 S.I. 1028, 1029. The
     mere fact that the statute only operates in certain counties
     of the state does not make it a local or special law. Like-
     wise the mere fact that this law only operates in the coastal
      waters of certain counties, and does not operate in the
     coastal waters of other counties, does not make it a local
     or special law.
     11
      ...0.*
     "Under the above authorities we hold that the act in question
     is a general and not a local or special law within the mean-
     ine:of sections 56 and 57 of ar'd$cle3,of our state Consti-
     tution. The statute operates upon a subject-matter in which
    Honorable William J. Tucker, Page 4      O-j'772



    the people at large are interested; it applies with equal
    force to )a11 persons everywhere; and the fact that it only
    operates in certain localities grows out of the suoject-
    matter. To say that the Legislature cannot enact laws to
    protect the fish along a certain part of the coast line of
    the state because such a law would be local or special
    would be to say that all such regualtions must apply to every
    part of the state. A regulation protecting fish in the
    coastal waters which is made to apply to the entire state
    would be an idle and useless thing, zs most oi our counties
    have no coast line at all, A!.sothe protection of fish and
    their spawning grounds aion<:my part "7 all of the coast
    line of the state is a matter ol general pubiic interest,
    For the reasons stated, we hold this to be a general law.'I
See also Tuttle v. Wood, 35 S.:i. ('20)1061, 1005.
The doctrine of these cases is that the subject matter of game
and fish laws is one in which the people at large are interested.
'i'hey
     apply to people everywhere. Lhey are therefore not local
or special laws, within the purview of the Constitution, not-
withstanding their operation may be restricted to certain locali-
ties. In consequence, Section 5'/would have no application.
And, as pointed out aoove, the i;ourt:,PCivil 2ippealsin the
Stephensen case declared its opinicrito 'be~l;;:tthe Legislature
could pass game and fish laws without the notice I;:ent,loned in
Section 5'7,irrespective of :.t:.i
                                question of SUCC CCl~iStltUr LIlfi
local or special laws.
It follow that it is our o;)i?z~onthat the AC!.::
                                                oet'oreus :ire
not uncorstitutional as in contravention of Sectj.ons50 and "7 of
Article 3 of'the Gonstit:lt:.oi:
                              of 'Texas.
Particularly with reference to house Yill ho. ~26, you question
its defiritkness in certa:;nparticulars. Sections 1 and e of
this Act read as follows:
     YSection 1. It shall be lawful in the County of ijlanco,
     Texas, to take or attempt to take any Slushby any method,
            or device equipped with more than .I.wo
     mear.53,                                     (2) hooks, and
     s:>ec:ifically
                  it shall oe lawful to take or attempt to take
     any fish oy the use of trotlines, from the waters of the
     Pedernales River in said County
     "SFlc:e3. The fact that it is desirable and appropriate that
     the use of trotlines foi-tile:,)urposeof crlycliinz
                                                       fish in the
     Pederrales River in Blanc0 Collntybe permj,;,tedand ll:acle
                                                              law-
     ful creates an emergency and an imperatl,veptiulicnecessity
     tha,t ,he Constitutional Rule requiring bills to be read on
     three several days in each House be suspended, and said Rule
     is susnended, and that this Act shall t-ikeeffect and oe in
     force ?rr;mand after its passage, and it is so enacted."
.        .




             Honoraole lvilliamJ. 'Tucker,Page 5   o-3'172


             That the Legislature is seeking to regulate with reference to
             methods Iormeans of taking fish by hooks is apparent, 'Thecon-
             struction suggested by you that the Act would authorize the use
             of dynamite, seines, or nets, or other imaginable means, so long
             as there was attached thereto more than two hooks, is not within
             the terminology of the Act and would, in our opinion, be denied
             by the c,ourts* It is common knowledge that in addition to trot-
             lines, more than two hooks may be employed on throw lines, pole
             lines or even by rod and reel. House till1No, 82e was obviously
             intended to authorize these methods and only those which, as a
             reasona'olematter, employ hooks to catch the fish.
             It is our opinion that House ijillNo, 82e is not void for want
             of definiteness in the particulars you have suggested,
             House Bill No, 855 acts out four inconsistent regulations re-
             garding the hunting of quail in Henderson County. It provides
             that neither of the first four sections of the Act, in which are
             embodied the four separate regulations, shall become effective
             until the qualified voters of the county, oy a majority vote at
             an election held for such purposie,shall have voted ti_erefor,
             'Thequestion presented in whether this Act represents an unconsti-
             tutional deiegation of legislative authority.
*            The early case of State v. Swisher, l'i'TEs.b&L, decided 2-nthe
             year ldgb, involved the constitutionality of a law which referred
    I*       to a vote of the Feople for its aPProv~1 nef'oreoncoming efi'ective.
             The Act pertained to the sale of intoxicatinF liquors. it ;ro-
             vided that the Covernor should order an election In eacilcounty
             in the State to determine whether or not the s-:lcof liquor in
             less quantities than one quart should ge abolished or continued.
             In declaring this Act unconstitutional, the court said at pa;:es
             44&,449'
                  "but) oesides the fact that the Constitution does not arovide
                  for such reference to the voters to give vaiidity to the
                  Acts of the Legislature, we regard it as repugnant to the
                  principles of the representative ::;overnment
                                                              formed uy our
                  Constitution.  Under our Constitution, the principle of law-
                  making is, that laws are made oy the people, not directly,
                  but by and through their chosen representatives, tiythe Act
                  under consideration, this principle is suuverted, and the law
                  is proposed to be made at last by the popular vote of the
                  people, leading inevitably to what wa::intended to 'beavoided,
                  confusion and great pnpular excitement in the enactment of
                  1aKs.l'
             'Thecases of .&xparte Francis, lo5 S."1.147; Ex parte iiiitcnell,
             109 Tex, 11, 177 S.\V.953; and Lyle vO State, 193 S.k+f.
                                                                    680,
Honorable William J. Tucker, Page 6     O-3772


involved Chapter 74 of the Acts of the 33rd Legislature. 'This
Act authorized the qualified voters of a county or certain poli-
tical subdivisions thereof, to determine by an election whether
pool halls should be prohibited therein, and made it an offense
to operate pool halls in such counties if the results of the
elections were in favor of their prohibition.
In the first case cited the Court of Criminal Appeals of Texas
held this Act constitutional as being a lawful delegation of
legislative authority. In the second case the Supreme Court of
Texas held the Act unconstitutional upon the authority of State
v. Swisher, supra. Finally, in the third    case  cited the Court of
Criminal Appeals receded from its view   in Xx  parte Francis and
held the Act unconstitutional consistent with the opinion of the
Supreme Court in Ex parte Mitchell.
Chief Justice Cureton, in Trimmier v0 Carlton, 116 Tex, 572, 591,
592, analyzed the authorities upon this question as follows:
     "The authorities also hold that while the Legislature may
     not delegate its power to make a law, it may enact a law
     to become operative upon a certain contingency or future
     event: As for example, a vote of the people to ‘be affected
     thereby. 6 Ruling Case Law, p. 166, Sec. 167.
     "This rule is not to be understood as applying underall con-
     ditions in this State. Ex Parte Farnsworth, 135 S.L~.,535;
     Ex Parte Mitchell, 177 S.W.,  953; State ve Swisher, l'i'Texas,
     441, Generally it applies to matters of local concern0 b
     Ruling Case Law, ppO 166 and 167, Under the Constitution of
     this State there have been delegations of legislative author-
     ity concerning matters of local interest. 'L'he location of a
     county seat may be made contingent~on a vote of the people.
     Walker v. Tarrant Co., 20 Texas, lo. The office of public
     weigher in any subdivision of a county may oe abolished by
     vote of the people at an election ordered upon initiatory
     petition. Vernon's Anno. Texas Stats., Art, 5686.    The case
     of .StanfieldV~ State, 83 Texas, 317, illustrates the prin-     ,
     ciple. In that case this Court had before it an Act of
     1889, in part reading: 'The county commissioners court of
     any county in this State shall have the power and authority,
     when in their judgement such court may deem it advisable, to
     abolish the office of County Superintendent in said county
     by .anorder on the minutes of’ said court at a regular term.'
     This Court held that this Act was constitutional, and was
     not a delegation of legisiative power, s+inz:
     "'It has been said by this court in a general way that laws
     can only be made by the votes of the representatives of
     the people in their legislative capacity. The State v.
     Swisher, 17 Texas, 448."'
_   .-




         Honorabls vvilliamJ. Tucker, Page 7


         6 Ruling Case Law, page 166, Sec. 167, cited by Justice Cureton,
         contains.the following:
              "Accordingly, while the legislature may not delegate its
              power to make a law, it may make a law to become operative
              on the happening of a certain contingency or future event;
              and it makes no essential difference what is the nature of
              the contingency, if it be an essentially just and legal one.
              Such a contingency may 'bethe vote of the electors of a
              given territory within which the law is to operate, as in the
              case of local option laws relating to the sale of intoxicating
              liquors, or miscellaneous local option matters such as laws
              relating to the running at large of animals, the establish-
              ment of free schools, and the creation or amendment of
              municipal charters. In some jurisdictions, however, statutes
              referring matters to the vote of the people are treated as
              amounting to a delegation to them of legislative power and
              therefore unconstitutional; and, likewise, statutes re-
              quiring the vote of subdivisions of the state have also been
              held invalid as violating constitutional provisions that no
              law shall be enacted to take effect upon the approval of any
              other authority than the general assembly. A distinction is
              made between matters of general and those of local concern,
              and local and not general laws may be enacted suoject to the
              approval of voters of a particular portion of the state...."
         From these authorities there emerges the proposition, insofar as
         the question at hand is concerned, that the Legislature may
         constitutionally enact a law to become operative upon a vote of
         the people to 'beeffected thereby only if the matter is one of
         local concern. Adverting then to the concept of game and fish
         laws as pronounced by Judge Critz in the Stephensen case, namely,
         that they are not local or special laws but on the contrary oper-
         ate upon a su~bjectmatter in which the people at large are inter-
         ested, we conclude that House Bill No. 855 is unconstitutional in
         that it represents an unlawful delegation of legislative authority.
         This conclusion likewise comports with the doctrine of State v.
         Swisher, supra, together with the line of cases cited appertain-
         ing to Chapter 74 of the Acts of the 33rd Legislature. See also
         Johnson v. Martin 75 Tex. 33.
         We thank you for your able and interesting discussion of the ques-
         tions presented by your request and trust that we have satisfactor-
         ily answered them for you.
         APPROVEL AUG. 4, 1941                 Very truly yours
            Grover Sellers
         FIRST A:;SISTANT                      ATTCKNtiYGENEhAL OF TEXAS
         ATTORNEY GENERAL
                                               BY     Zollie C. Steakley
                                                               Assistant
         ZCS:RS:ml
