                    OFFlCE     OF THE ATfORNW    GENERAL            OF I=
                                          AUBTlN



OllOYCI SPLL=Rs
ryou*l*   cci*rrL
                                                          This Opinion
                                                       Oven ules Opinloa
            Honorable H. Pat Edwards                      # O-6776
            District ,Attorney
            Records Building
            Dallas 2, Texas
            Dear Sir:                               Opinion No. O-6846
                                                    Re: Coastitutiooalityof H.B.
                                                         555, 49th Leg., 1945,
                                                              (titlcle    2327-a,   Y.A.C.S.),
                                                              concerning salaries of
                                                              oourt r+ortere.
                      We have received Jtourletter of recent date re-
            questing an opinion from this departsientOQ the .abovdsab-
            ject matter.
                     House kill 555, Chapter 291, .ihtsof the 49th
            *gislatwe, 1945, is as.follows:
                         “section 1, That Article 2326, Chapter 13,
                    Revised Civi.1Statutes of Texas, 1925, and all
                    subsectioasof A.?tlc~le2326, be ati the same
                    are hereby amended so as to hereafter read as
                    sollows:
                             “l&ticle    2326.
                         “‘The official shortWnd reporter of each’~’
                    Judloial District Court, civil or crI.ninal, and
                    the official shorthand reporter of each County
                    Court     at Law,’ civil   or criminal,       shall   receive
                    a salary of not less than Two Thousand, Four
                    Hundred Doj_tara($2,400) per annum and aot more
                    than Three Thou&d, Seven Hundred an.dFifty
                    Dollars ($3,750).per annum. Said salary shall
                    be fixed and determiaed by the District.Judges
                    of:the Judicial Districts,~cl.vi~.orcrlminal.,~ aad
                    the Judges of the ColintyCourt.-atLaw, civl~ OI?
                    criminal, who shall enter an.-order‘in the minutes
      .
,*,
  i




          Honorable H. Pat Edwards, page 2


               of the Court, in each county of the district,
               which shall be a public record and open for
               public inspection,stating s-pacifically the amount
               of salary to be paid said re>,rter. Tee District
               5n.;(.ge
                     s?lallfile a copy of 5.3idorder xith each
               Ckxmls5innereCourt of the D:lstrict.The salary
               ehkllbe in additron to the transcriptfees and
               tr;Iveli;j3
                         acS hote:iexpenses of official short-
               hand reporters,as is nom provided by iaw.
                    “‘The salary shall be paid monthly by the
               CommissionersCourt of the county or cciuntiesin
               the Judicial Districts, cicI.ior criminal, and
               the County Courts at Law, civil OS criminal, out
               Of any available SUtkdOf the C0UOty~or counties
               that the ConMssiocers Court may desire to psy
               the same, aonordiog to At+.c:!es2326H and 23--A.



               nor more than

                    “sec. 2.  The provisionsof this Act are and,
               shall be held and Con&trued to be cumulative of
               all.General and Special laws of this State on the
               subject treated of and embraced in this &zt when
               not in conflict thereewith,but in case of 'con-
               flict, la whole or In part, this Act shall con-
               trol'ln so far a8 any coaSllct~exists. All laws...
               and parts of laws in conflict with said Act are
               hereby repealed.
                   "Provided,however;thls Act does not repeal
                                 232&A, 2326~, and 2327~ 0s
              rioramend ‘h?t'iClQB
              .Chapter13.
                    "Set . 3. The crowded condition cf the sal-
               endar tiedthe fact that existing economic condi-
               tions have brought about an increase In the prices
               0-4all commoditiesand that the official short-
               hand reporters are being paid below the present
               standardfor comparable SQrVbZQ8,  create an
Honorable H. Pst Edwards, page 3


     emergency and an Imperativepublic necessity that
     the ConstitutionalRule requirin, bills to be read
     on three several days In QaCh Rouse be suspended,
     and said Rule Is hereby suspended,and that this
     Act &all take effect and be in full fOrCQ and
     effect from and after Its pdssage, and it is so
     QUaCted.'

          You have raised the question as to the coostitu-
tionalitg of H.B. 555 because of the exception underlined
above. It is.your opinion that said exception amounts to
fixing a classificationwhich is arbitrary and has co true
relevancy to the purpose of the legislation,and therefore,
H.B. 555 is unconstitutionalbecause it violates section 56
of Article III ,of our State Constltutlon.
           Section 56 of Article III ia In part as .Sollows:
          "SQC. 56. The Legislature shall not, except
     as otherwise provided In this Constitution,pass
     any local or special l~aw,authorieing:.
          11
           . . . .
          "Regulatingthe affaira of counties, hities,'
     towns, wards or school districts;
          II
           . . ..
          "Creatingoffices, or prescribing the powers
     and duties of officers, In counties, cities,
     towns, election or school districts;"
          In thQ case of BQXar Countgv: Tynan, et al, 97 S.W.
(2d) 467, (Commissionof Appeals), the Court IU COnStr~iingthe
above quoted section of the State Constitution StKitQdthat:
          "The Legislaturemay, upon a proper and rea-
     sonable classification,enact a general law which
     at the time of its enactment is applicable to
     only one county; provided its application is not.
     so inflexiblyfixed as to prevent it ever being
     applicable to other counties. . . .
.




Honorable II,Pat Edwards, page 4


           “Rotwithstandingit Is true that the Legis-
    lature may classify counties upon a basis of
    pOpUbti.On  for the purpose Of fT?cingcompensa-
    tion of county and precinct officers, yet in do-
    1u.gso the classificationmust be based upon a
    real distinction,and must not be arbitrary or a
    device to give what is In substancea local or
    special law the form of a general law. It is well
    recognized that in determiningwhether a law is
    public, general, special or local the courts Will
    look to its substanceand practical operations
    rather than to its.title,form and phraseology,
    because otherwise prohibitionsof the Sundament-
    al law against special legislationwould be nuga-
    tory.’ 25 R.C.L., 815, and authoritLes   cited
    . . . .
          “In the case of Clark v. Finley, 93 Tex.
     171, 54 S.W. 343, this court recognized that
     substantialdifferences In populations of coun-
     ties could be made a basis of leglslatioaSIxIng
     compensatia of offFcers, on the theory, as the
     court clearly recognized, that the work devoiv-
     bg   upOc   ac   OffiCQr   Was   in   SOme   de@W?   propor-
     tionate to the population of the county. This
     has frequentlybeen recognizedby courts as cre-
     ating a sufficientdistinctionto justify a
     larger compensatloafor county officers In coun-
     ties having a large population as compared with
     compensationto like officers in counties having




          In the case of Miller et al v. El Paso County, 150
9. ii.(2d) 1003, the Supreme Court held:
          “Resort to populationbrackets for purpose
     of classifying subjects for legislation is
Honorable II.Pat Edwards, page 5


     permissiblewhere spread of population is broad
     enough to include or segregatea substantial
     class and populationbears some real relation to
     subject of legislationand affords fair basis
     for classification. . ,.
                  It has been legitimatelyemployed
     in fix;& .ieesof offices in certain cases but
     even then it is permissibleonly where the’spread
     OS population is substantialand ia sufficient to
     include a real class with characteristicswhich
     reasonably distinguish it from others as applied
     to the oontemplatedlegislation,and affor#s a
     Tai??bas’isfor the classification.I’ (Ende&sccr-
     ipg ‘ours)
EOr additional authorites on the above-quoted rulessee Lewis
Sutherland Statutor                    ea.), p. 397 et seq;
                                           of Ft; W0rth.v. Bob-.
                                              (2d) ,228;Supreme
                                             1; ‘81S.W. 18;
Smith v. State, 49 S.U. (26) 739; Rand01 ir. Stite,   46 3.5-T.
(2d) 484; Fr1tter.v. West, 65 S.W. (2d) r14, wrlt refused;
State v. Rally 76 S.W. (26) 880~ Wood .v..
                                         Marfa Ind. School
mat ., 123 S,W. (2d) 4293’Leonard v. Road Malntnnance Ilist.
No..1, 187 Ark. 599, 61,~
                        9.w.~(2d)?O.
          It will be noted that the provisiona of K, B. 555,
                          of not less than two hundred and



Judic’LalMstrlct Court altuated In smaller~doiant~ies @ud
shorthand‘    reporters of each Judicial District Court situated
in larger counties to receive a greater c,ompensation    for
their .serviee~   than like .officersin ‘Bexarand Tarr.antCoun-
tiea.,‘Applyingthe above-quotedprihciplesof statiat&y
construction:andconstFtut,ioaal     flawto our preseht la4
(Ii.B,.,555);hitis our opinion that the Le@slatU?e by’ put-
ting in the exceptron,c.lausein JiGuse ,Bill, 555,‘fixed g Class-
ification,wh$chis:arbi’trary     and,whichhad no tr’uerelevancy
to the purpose of ~the;leg&slation.;Therefore;‘St is oQr opln-
ion that~the,exception clause to II.B. 555, supra, Xs ICI~-
CohStitutiOnal     ‘andvoid.


                        :
                            (&            .1
                    in                                   :,
                    .I. :
Iiotxor~able
         H. PatzFdwerds, page.6


          The question as to whether or not H. B. 555 can
stand without the exception clause necessarily-follows. We
answer this question in the negative.
          In the case of Anderson v. Wood, 152 S.W (2d)
1084; the Supreme Court stated the following:
          "It is very well settled that a statute ex-
    cepting certain counti,.>arbitrarilyfrom its
    operation is a 'local or special' law within
    the meaning of the above constitutionalprovl-
    don. Hall v. Bell Coumy, Tex. Civ. ~pp., 138
    S.W. 178, affirmed by the Supreme Court, Bell
    County v. Hall, 105 Tex. 558, 153 S.W. 121;
    Webb v. Adams, 180 Ark. 713, 23 S.W. (26) 617;
    g;ate ex rel. Johnson v. Chicago, B. & Q. R.
          1% MO. 228, 93 S.W. 784, 113 Am. St. Rep.
    66i.j 6 R.C.L. 129, 59 C.J. 736. This last pro-
    viso exempting counties with a population between
    195,000 and 205,000 is a part of the original act,
    and is not an amendment. thereto. Since it is
    void< the whole act must be declared void. because
    otherwise the court would have to apply the act to
    all counties having a population In excess of
    125.cO0, and this would be giving the act a
    broader scope than was intended by the Leglsla-
    Tiibe
    ---     The rule applicable in such cases Is thus
    zstatedin Lewis' Sutherland,Statutory Construc-
    tion, 2d Ed. vol. 1, sec. 306, as follows: 'IS,
    by striking out a void exception, proVis0    or
    other restrictiveclause, the remainder, by reason
    of its generality,will have a broader scope as
    to subject or territory, its operation is not in
    accord with the legislativeintent, and the
    whole would be affected and made void by the in-
    validity of such part.' Substantiallythe same
    rule is announced In Ruling Case Law, vol. 6, p.
    129. The above rule was So&lowed by this court
    in Texas-LouisianaPower Co. v. City of Farmers-
    ville, Tex. Civ. App., 67 s.w. (2d) 235, 238: See,
    also,  James C. Davis Directo,rGeneral, v. George
    Wallace, 257 U.S. 478, 42 3. Ct..164, 66 L. Ed.
    325.”
.




    Honorable H. Pat Edwards,   page 7


             See also Womack v. Carson, et al, 70 9. w. (za)
    416, (Comm. of Appeals); and 39 Tex. Jur., p. 22.
               To allow H. B. 555 to stand and operate without
    the exception clause would give broader scope and meaning to
    tl?c bill than was the intention of the Legislature. There
    is no basis which would allow one to,claim that the Legisla-
    ture would have passed Ii.B. 555 without the exception clause.
    For additional authorities see casea cited in 39 Tex. Jur.;
    p. 22.
              It is, therefore, the opinion of this department
    that H. B. 555, Chapter 291, Acts of the 49th Legislature,
    1945, IS unconstitutionaland void.
              In our Opinion No. O-6776 we were requested merely
    to interpret certa3.nprovislo~s Gf H. B. 555, supra. There-
    fore, we aid not pass on ao.yconstitutionalquestion in said
    opinion. IO view of our holding herein, we hereby withdraw
    our Opinion No. O-6776.
                                              Yours    very truly
                                         ATTORNEY CERERAL OF TEXA?,

                                         BY
                                                      J . C . .D%?;
                                                              Assistant’
                                                                        . .-
                                                            ‘~/Si@mif      ‘,
                                                          John Reeves


    APPROVED OCT, 19, 1945               APPRO-KXD
    /s/ Grover 3ellc-rs                  OXNIO’L COMlVT’IEE
    ATTORNEY CEXERAL OF TEXAS            By C.WA:B.,Chairman
