             c-     -

                                                             R-488


                   THEATTOEWEYGENERAL

                               BFTEXAS

PRICE  DANIEL
ATTORNEYGENERAL

                                   June 5, 1947

        Hon. H. L. Roberts               Opinion No. O-235
        County Auditor
        Hutchinson County             Re:     Constitutionality of
        Stinnett, Texas -                     an Act which only ap-
                                              plies to counties
        Dear Sir:                             within population
                                              brackets shown by
                                              the census of 1940.
                  We refer to your letter of May 12, 1947, in
        which you submit the following:
                       "Our Commissioners' Court desires a
                  ruling by your Department as to the con-
                  stitutionality of that part of Chapter
                  50, H.B. No. 51, amending Article 5142,
                  passed by the present Legislature, which
                  reads as follows:
                       '"'Providedfurther that in counties
                  having a population of not less than Nih+
                  teen Thousand (19,000) and not more than
                  fifty thousand (50,000) as shown by the
                  1940 Federal Census and whi.chhas an assess-
                  ed valuation of taxable property of not
                  less than Twenty-five Milli.onDollars (#25,-
                  OOO,OOO), one juvenile officer may be ap-
                  pointed by the Commissioner's'Court, whose
                  salar may not exceed Three Hundred Dollars
                  (33OOV Per month and expenses not to exceed
                  Six Hundred Dollars ($600) per year.'
                       "Hutchinson County has a population of
                  19,069 as shown by the 1940 Federal Census,
                  and a Tax Roll valuation of $29,394, 725.00
                  as shown by the 1946 tax roll." (Emphasis
                  added)
                  The language "having a population of not less
        than nineteen thousand (19.000) and not more than fiftv
        thousand (50,000), as shown by.the 1940 Federal census;
        and which has an assessed valuation of taxable property
        of not less than Twenty-five Million Dollars ($25,OOO,-
        OOC)," definitely confines the application of the Act
        ,to,thecounties which met those requirements at the ef-
                                           --




Hon. II.L. Roberts, Page 2


feotive date of the Act. No other county can ever
come into the same class because of the tie to the
1940 census and to the present tax rolls of the
counties now in the class. The provisions of the
Act only apply to the oounties of Bell, Brazoria,
Duval, Ellis, Fort Bend, Gray, Hutchinson,,Jim
Wells, Montgomery, Tom Green, Van Zandt, Victoria,
Wharton and Wood.
          Section 56 of Article III of the State Con-
stitution reads in part:
          "The Legislature shall not, except as
     otherwise provided in this Constitution,
     pass any local or speoial.law, authorizing...
          "Regulating the affairs of counties,
     oities, towns, wards or school districts."
           The Supreme Court of Texas held in the case
Of  Altgelt v. Gutzeit, 109 Tex..l23, 201 S.W. 400,
tha t an Act fixing the salaries of County Commissioners
was an Act "regulating the affairs of counties" within
the purview of the Constitution, and that an attempt to
do so by local or special law was void.
          In the case of,City of Fort ,Worthv. Bobbitt,
36 S.W. 2d, 470, the Court had the question of the
validity of an Act which applied to cities having a
population of not.less than 106,000 inhabitants and
not more than 110,000 inhabitants according to the
census of 1920. The Court said:
           "The Constitution in plain and simple
    ,.terms prohibits the enactment of any local
      or special law regulating the affairs of .'
      cities, or changing their charters. It can-
      not be denied that this law does have ref-'
      erenoe to regulating the affairs of cities.
      If it is a local or special law, it is
      therefore.unconstitutionsland void...
          "If we should hold this law to be con-
     stitutional when it describes and confines
     its application to one city, we would in
     effect be holding the constitutional pro-
     vision under discussion an idle and vain
     thing, and can be evaded by a subterfuge.
     We therefore hold that the Act in question
     is unoonstitutional and void."
Hon. H. L. Roberts, Page 3


          The Court then quotes,from Lewis' Sutherland
Statutory Construction'(26 ed) p. 397, et seq., as fol-
lows:
          "A classifioation based upon existing
     or past conditions or facts and which would
     exclude the persons, places, things or ob-
     jeots,thereafter coming into the sit;;",;o;
     or condition, isspecial and void.
     classification of cities or counties based
     upon existing population or upon the popu-
     lation shown by specific census is of this
     character."
          The Texas Court of Criminal Appeals quoted ex-
tensively from the City of Fort Worth case and followed
its conclusions in Smith v. State, 49 S.W. 2d 739.
           The case of City of Fort Worth v. 'Bobbitt,
Attorney General, supra, should not be confused with
City of Fort Worth v. Bobbitt, Attorney General, 41
S.X. '2d 228. 'In the latter case the Court held a sta-
tute constitutional which applied to "cities in the
State of Texas, having a population of more than 100,000
inhabitants according to the last receding United States
census." (Emphasis added). -<ording,        *'lastpreoed-
ingn census, allows other cities or counties tocome
within the situation or condition in the future, and.
when based upon otherwise reasonable olassifioations,
such laws have been upheld. Such cases only emphasize
the invalidity of a special a,otlimited to the 1940.
census and 1947 valuations.
           We are of the opinion that the provision of
E. B. No. 51 passed by the 50th Legislature inquired
about in your letter is a local or special law and un-
constitutional.


           That part of H. B. No. 51, Acts of the
     50th Legislature amending Article 5142,R.C.S.
     which fixes salaries of juvenile officers
     and which definitely confines its application
     to counties between a maximum and a minimum
     population according to the census of 1940;
     or which only applies to counties having a
     taxable valuation of more than a stated
     amount at the effective date of the Act, is
Hon. H. L. Roberts, Page 4


     a local or special law regulating the af-
     fairs of counties and is unconstitutional.
     Const. Art. III, Sec. 56; Altgelt v. Gut-
     zeit, 109 Tex. 123, 201 S.W. 400; City ol
     Fort Worth v. Bobbltt, 36 S.W. 26 470.

                             Very truly yours,
                       ATTORNEY GENERAL OF TEXAS


                       BY
                                T. Williams
                             Assistant


                       API'ROVEDJUNE 5, 1947

                   ,’ATTORNEY
                     j!2lddld GENER&L
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