                                   AURTIN 11.I'Exas
PRICE   DANIEL
ATTORNEY GENERAL
                                             September   20,    1949

          xou. UB. r. PO01                           OpllIloax80.v-909.
           COuleJ Attoraey
          Ylnkler CQuntiJ                            Re: The constitutionality
          Kermit,  Texas                                 of 5.B. 463, 5lst Leg-
                                                         islature, relative to
                                                         purchaaseof an airport
                                                         la counti*s harlu$ a
                                                         6141 to 6150 poptia-
           Dear     Sir:                                 tion.
                           Referanise   i*   tie   to your     recent   request   which
           r8ads In part au follew~:
                         "The undersignedrerpnctfullyre uests
                    ain oplnloafrom  our office es to whe her
                    Senate Bill Ro. 7163(Art. 1581d, R.C ! ) as
                    parsod by the 51st Leglslaturet, Is v&i and
                    unconstltutloarlas a local or special law
                    regulating the affabs of oomtlem, con-
                    trary to the provisionsOS Article 3, Sea-
                    tlon 56 of our state oonatltution.H
                         Section 1 of Senate Bill Ro. 463, Acts of the
           fart     Legislature,Regular Rasslon, 1949, is as .rdmfs:
                         "5ection 1. All counties la this state
                    having a populat1enof not less thaq slx
                    thousand one hundred fortyous (6,141) and
                    not wro than sk~thousand one hundred iii-
                    ty (6,150) lohabltgts aacordlug to the lalrt
                    precedlngFederal Census, and having an as-
                    sessed valuatioa of clotloss than Twenty-
                    one Willloa ($21,000,000.00)Dollars accord-
                    lug to the last approved tax rolls, are here-
                    b7 authorlsed to acquire by purchase or
                    otherwise an airport not to exceed six hun-
                    dred forty (640) acrea in area to be locat-
                    ed not wre then five (5) riles from the
                    heaviest populated are&In the county.”
           The populationof Uimklor County is 6,141 accdkdiig to
           the last precedl Federal Census and Winkler Couaty's
           tax valuation Is "041,284,474according to the 1948 tax
Bon. Wm. B. Pool, page 2   (V-909)


rolls. According to the la,atpreceding Federal Ceusus
Winkler County 1s the only county in this State falling
within the above classification.
          Section 56 of Article III of the Comtitutioa
of Texas provides In part as follows:
           "The Legislatureshall not, except as
      otherwise provided In this Constitution,
      pass any local or special laws, . D . re-
      gulating the affairs of counties, cities,
      towns, wards or school districts; 0 . S
      creating offices or prescribingthe powers
      and duties of officers, in counties, cities,
      towns, election or school districts; . o .'
          We quote the followlug from our Opinion Ho,
O-2221, which ,oplalonwas upheld by 8 Texas Court of
Civil A peals in the case of Oakley v. Kent, 181 S.W.26
919   (19&4)   :

           "A law which applies ouly to a part of
      a uatural class of persons or things must
      predicate Its Inclusion of the part and ex-
      clusion of the balance upon characteristics
      peculiar to the part, which, consideringthe
      objects and purposes of the law, afford rea-
      sonable ground for restrictingthe appllca-
      tlon of the law'to the part S Classlflcatfon
      muat be reasoueble and uatural, not arbitrary
      and capricious. Arbitrary desiguationis not
      classlflcatlou. The vice of local or special
      laws Is that they rest on arbitrary des~lgna-
      tlon; that they do not embrace and affect all
      of the class to which they are uaturallg re-
      lated."
          Ih County of Bexar v. Tyuan,l28 Tex. 223, 97
S.W.26 467 (l-6) the Suprenm Courtof Texas announced
the following pr&lple which controls the armtterhere-
in:
            'NotwithstaudlngIt Is true that the
       Legislaturemy classify counties upon 8
       basis of population for the purpose of flx-
       lng compensationof couutg aud precinct of-
       ficers, yet lu doing so the classlflcatloa
       must be based upou a real dlstluction,aud
       muat not be arbitrary or a device to give
HQP. wk. r. Pool, page 3       (v-909)


        what    In substaoce a local or special law
               is
        the form of a general law."
               We quote the followlug from 0akl.e~v. Kent.
supra   :
             "Point 2 challenges said ruling of the
        trial oourt on the eploundthat the bill Is
        wholLy unconstltutloualIn that Sec. 3 there-
        of, &aVlag reference to the employmentand
        paymsnt of a deputy arsessor-collectorof
        t-es, applies only to counties havlug a,
        populationof 140,000 to 220,000 Inhabitants,
        accordlag to the 1940 Federal census, ao that
        811 ether counties are exxeluded  and Jeffer-
        son County only ooms within such provision,
        amd so the provision exaludss counties of
        leaser or greater population from employment
        and paying a deputy assessor-collectorof
        taxes, and for such reasons Sec. 3 1s arbi-
        trary and dlscrlmlnatoryand Is but a local
        or sp@clal law paesed under the guise of a
        general statute   aad violates Art. 3, Sec.
        56 of tlao fjt*te Constitutha,  vtirnon’aAnn.
        St., forbidding the Legislatureto pass any
        law regulating the affairs of any such COUP-
        ty, craatlng offices oilpr*sc*$@,@gtk+ pew-
        er or duties of oiflcem In eWtitlb8.
              "Point 3 challenges the court's action
        in giving the peremptory Instructionand re-
        fusing to enjoin the county treasurer and
        county auditor of Jefferson County from is-
        suing, registeringand paying the salary of
        the purchaslugagent for said couaty accord-
        1116to the ~ovlslons of 3s~. 4 (a) of said
        blll, because the bill Is unconstitutional
        In that &K.. 4 (a), having reference to the
        creation and payment of a county purchasing
        a&sat, &p&lea to the 1940 Federal census so
        tbst  s&1 &her oouatles  are exxalnded and
        Jsffarsoa:~Gounty only aoma withha such pro-
        via@ns and so counties   of lesser or greater
        populatiousare not permitted to exercise
        the power of appointinga purchasinga eat.
        That by mason of such situation 3ec. t (a)
        Is arbitrary and discrlalnatoryand but a
        looal or s#ecial law pasred under the guise
        ef the general statute  and violative of AI%.
Bon. urn.E. Pool, page 4   (V-909)


    III, Sec. 56, forbiddingthe Legislature
    passing any such law regulatingthe affairs
    of,any such county, creating offices or pre-
    scrlblng the powers or duties of the offl-
    cers la counties . . .
          "f&cause populationas a basis for
     classlfleatlonhas been sustalued by the
     courts In respect to legislationon certain
     subjects, It has been assumed, erroneously,
     that populationbrackets will serve la all
     Instances to avoid the condemnationof the
     Constitution. This mistaken assumption pro-
     ceeds from a failure to note that population
     has been sustainedas a basis for classlfl-
     cation only in those Instanceswhere It bore
     a reasonable relation to the objects and pur-
     poses of the law and was founded upon raMon-
     al difference In the necessitiesor conditions
     of the groups subjected to different laws.~
     Where it has been determined that, conslder-
     lag the objects and purposes of the law, dlf-
     ferences in populationafford no retlonal ba-
     sis for dlscrlmlnatingbetween groups of the
     same natural class, classlflcatlonon the ba-
     sis of populationhas been termed arbitrary
     selection,and the law has been held to be
     special and local."
          We quote the following from Miller v. El Pas0
County, 136 Tex. 370, 150 S,W,2d 1000 m41) :
          “The peculiar llmltatlonsemployed by
     the Legislature In this instance to segre-
     gate the class to be affected by the legis-
     lation not only bears no substantialrela-
     tion to the objects sought to be accompllsh-
     ed by the Act, but the purported clgas at-
     temped to be so segregated Is, In fact, not
     a class distinct in any substantialmanner
     from others In this State. There Is noth-
     ing peculiar about a county having a popu-
     lation of less than 125,000 nor more than
     175,000 Inhabitantsand containinga city
     with a populationof not less thaa 90,000
     InQabltaatsthat llarksIt a suitable aad
     peculiar field for the expendlng of publie
     funds for advertisingand prowtlng the
     growth and development of the county aud
Ban. Wm. E. Pool, page 5   (V-909)


     its county seat, as dlstlngulshedfror
     other counties havfag substantiallythe'
     same populationor cltlos of similar size.
    The.slight variatloa between the popula-
    tion of El Paaso County and Its principal
    city and other counties and cities in the
    State does not distinguish It In any man-
    ner that Is germane to the purpose of this
    particular legislation. In other words,
    whatever difference there Is In population
    does not appear to be material to the ob-
    jects sou&t   to be accomplished. After
    havlngcarefully considered the smtter,
    we are convinced that the attempted clas-
    slflcatioP~~ls uareasenableand bears no
    rolatiea to the eb j.ectssought to be ac-
    complished by the Act, and that as a con-
    sequencethe Act Is void."
          Since Senate Bill 463 of the 51ti &eglslature
19$9 applies only to Wlnkler County, It Is our opinion,
la view of the foregoingauthorities that the classlfl-
eation contained In said bill Is not based on a real
Qlstlnctlon,but is an arbitrary classifl~atlonand Is
¶imsubstance a local or special law. Therefore, It is
&&'oplnion that Senate I3111463 Is unconstltutloaal~.


          Senate Bill 463, Acts of the 51st &eg-
     lslature, 1949, applicable only to coun-
     ties with a populationbetween 6141 and
     6150 according to the last census, and af-
     feet1 08ly Winkler County, violates Ssc-
     tion.5
          2   Article III of the Texas Constl-
     tutlon &d Is unconstitutionalas a local
     and special law.
                                  Yovs    vary truly,
                             ATTORRBY    OBRBRAL OF TEXAS


                             BY
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