                             AUSTIN   ,,.T~xaw
GROVER SELLERS
XXX-xXxX
 ATIP0RNW-Y   C-EBTCWAI.




  Honorable Shelby K. Long
  County Attorney
  Jefferson County
  Beaumont, Texas
  Dear Sir:                  Opinion No. O-5326
                             Re: Constitutiona:lityof Senate'Sill
                                 No. 262, Acts of'the 48th Legislature

  Your letter of May 21, 1943, requesting the opinion of this depart-
  ment on the above stated matter reads in part as follows:
        "This office has a request for an opinion as to the constitu-
        tionality of Section Three of the above Senate Bill, and be-
        cause of Section Five we would like to have your opinion cover-
        ing the constitutionality of the entire Bill. In the event
        that some section shall be held unconstitutional, then, in your
        opinion, is the whole Bill invalid because of Section Five.
        "In connection with this I wish to call your attention to cases
        which I think bear on this question:
        "City .of Fort Worth v. Bobbitt,~41 S.W. 288:
           "Miller v, El Paso County, 150 S.W. 1000;
           "Tinner vs. Crow, 78 S.W. (2) 588.
           Qood V. Marfa Ind. Sch..Dist. 14i S.W. (2) 590;
           "Bexar County v. Tynan, 97 S.W. (2) 467.
  I believe that the last mentioned case contains more information
  and law in point than the other cases,cited.
        "Please furnish me this opinion as soon as possible, as the
        effective date is June lst, and we would like to know as to
        the constitutionality of this Bill before putting it in opera-
        tion in this county.
        " .......11

  Senate Bill No. 262; Acts of the 48th Legislature, Regular Session,
  1943, is an act
        "fixing the compensation of certain designated county officers
        in certain counties-
                           , providing for the creation and operation
Honorable Shelby K. Long, page 2    0-5326



     of certrin offices in certain:counties; providing.the methods
     ant?means by which certain officers in certain designated
     counties shall be selected and compensated; declaring certain
     acts, contained in Section 4, to be unlawful; prescribing
     a penalty for the violation of the provisions of Section 4 of
     this Act; providing a saving clause; repealing all laws or
     parts of laws in conflict, and declaring an emergency.rf
Sections 4 and 5 of Senate Bill No. 262, supra, read as follows:
     "Sec. 4. (a) In said counties in this state having a opula-
     tion of more than one hundred forty thousand (140,000P and
     less than two hundred twenty thousand (220,000) inhabitants
     according to the last preceding or any future Federal Census,
     where the Federal Government has authorized the construction
     of large synthetic rubber plants in addition to vast ship
     building enterprises, additional duties have been placed upon
     county officers of such counties due to such construction,
     necessitating and making it economically necessary that there
     be a central purchasing agency for such counties, and there-
     fore a majority of a board composed of the Judges of the
     District Courts and the County Judge shall appoint a County
     Purchasing Agent. The County Purchasing Agent shall hold
     office for a term of two (2) years unless removed for cause.
     He shall execute a bond in the sum of Ten Thousand ($lO,OOO.OO)
     Dollars, payable to said county, for the faithful performance
     of his duties. He shall receive an annual salary,of not less
     than Three Thousand ('3,OOO.OO) Dollars nor more than Forty-
     two hundred ($42OO.OO? D,ollars,payable in equal monthly in-
     stallments out of the County General Fund by warrant drawn on
     the County Treasurer by,the County Auditor, Said Purchasing
     Agent may have such help, equipment, supplies and traveling
     expenses, with the approval of a majority of said Board of
     Judges, as they may deem advisable, the amount of expenses to
     he approved by a majority of said Board and paid out of the
     County General Fund by warrant drawn on the County Treasurer
     by the County Auditor.
     "(b) All equipment, materials, and supplies, together ~withthe
     rep.irs of same, required, used or to be paid for out of any
     County Fund, shall be purchased by the County Purchasing
     Agent, upon written specifications and upon requisitions
     submitted by the county official or department requiring same.
     So far as practicable, such purchases for any office or depart-
     ment shall be in amounts calculated to be adequate for one
     year's needs. 'Where the total consideration on any contract
     is likely to be in excess of One Hundred Fifty ($.fjO.OO)
     Dollars, purchases shall be made on the basis of the lowest and
     best bid, iliththe right to reject any or all bids, and a
     sufficient bidder's bond may be requi,red. A complete record
Iionorable~ShelbyK. Long; page 3   O-5326


     of bids and purchase contracts awarded shall be kept on file
     for not less than ten (10) years. In making such purchases
     the County Purchasing Agent shall contract in the name of the
     county.
     "(c) When delivery is made on any purchase or repair dark, the
     County Purchasing Agent shall secure from the county officer
     or department head receiving the same a receiving memorandum
     in triplicate, certifying that the equipment, materials, sup-
     plies, or repairs have been receiged in good order and accord-
     ing to specifications. Such receiving memorandum shall be
     attached to the respective invoice, rendered in triplicate,
     when such invoice is approved by the County Purchasing Agent.
     A copy of each of the receiving memorandum and the approved
     invoice shall be forwarded to the County Auditor, and a copy
     each shall be kept on file in the office of the County Pur-
     chasing Agent for not less than ten (10) years.
     R(d) The County Purchasing Agent shall prepare and keep a
     perpetual inventory of all property of the county for each
     department and office. A copy of such inventory as of July
     1st of each year shall be furnished the Commissioners Court
     and the County Auditory not later than the following July 20th.
     It shall be the duty of the County Purchasing Agent to-trans-
     fer equipment, materials, and supplies from one department or
     office to another in the interest of efficiency and economy.
     "(e) All purchases made by such Agent shall be paid for by
     warrants drawn by the County Auditor on the County Treasurer
     as now provided by law.
     v(f) It shall bn unlawful for any.person to make any purchases
     of equipment, mgterials, suppliesA~~,'tre~~~r~of~~r~~~ts",~~il
     other than the County Purchasing
     be approved by the County Auditor ?n p;yment for any purchase
     not made by such Agent.
     "(g) Any person violating any of the provisions of Section 4
     of this Act shall be deemed uilty of a misdemeanor, and upon
     conviction thereof shall be s ined not less !than Two Hundred
     (4b200.00)Dollars nor more than One Thousand ($l;OOO.OO)
     Dollars, or imprisoned in the county jail of said c unty for
     not less than thirty (30) days nor more than one (1'3year,
     or by both such fine and imprisonment.

     "Sec. 5. If any part of this Act shall be held to be uncon-
     stitutional, then all the Act shall be unconstitutional, The
     Legislature hereby declares that it would not have passed the
     remaining parts of this Act if it had known that such part
     or parts would be declared unconstitutional."
Honorable Shelby K. Long, page 4       O-53.26


It is clear that the law under consideration regulates the affairs
of the counties to which it applies, creates offices, and prescribes
the powers and duties of officers. Is it a general law, or is it
a special and local law in violation of the provisions of Article
III, Section 56?
Article III, Section 56 of the State Constitution provides as
follows:
     "The L,egislatureshall not, except as otherwise provided in
     this Constitution, pass any local or special law, authorizing:
     ". . . . .

     "Regulating the affairs of counties, cities, towns, wards or
     school districts;
     ". . . . .

     "Creating offices, or prescribing the powers and duties of
     officers, in counties, cities, towns, election or school
     districts;
     " . . . . .1,

Generally speaking it is stated in our opinion No. O-2221:
     "A law which applies only to a part of a natural class of per-
     sons or things must predicate its inclusion of the part and
     exclusion of the balance upon characteristics peculiar to the
     part, which considering the objects and purposes of the law,
     afford reasonable ground for restricting the application of
     the law to the part. Classification must be reasonable and
     natural, not arhitrary and capricious. Arbitrary designation
     is not classification.~ The vice of local or special laws is
     that  they rest on arbitrary designation; that they do not
     embrace and affect all of the class to Irhichthey are naturally
     related. 25 R.C.L. pp. 8'15-816;12 Am. Jur. p. 146; Smith v.
     State (Ct. Cr. App.), 49 S.>d. (2d) 739; Randolph V. State,
      (Ct. Cr. A?p.), 36 S.;r. (2d) 484; Clark v. Finley, 93 Tex.
     171, 54 S&i. 343; City of Ft. Worth v. Bobbitt, 121 Tex. 14,
     36 S.W. (2d) 470, 41 S.W. (2d) 228; Bexar County v. Tynan,
     128 Tex. 223, 97 S.W. (2d) 467.
     "Because population as a basis for classification has been
     sustained by the courts in respect to legislation on certain
     subjects, it has been assumed, erroneously, that pupulation
     brackets will serve in all instances to avoid the condemnation
     of the Constitution. This mistaken assumption proceeds from
     a failure to note that ~populationhas been sustained as a
     basis for classification only in those instances where it bore
    .       ”




Honorable Shelby K. Longi Page 5        Q-53 26



    a reasonable relation to the objects and purposes of the law
    and was founded upon rational difference in the necessities or
    conditions of the roups subjected to different laws, Where
    it has been determEned that, considering the objects and pur-
    poses of the law, differences in population afford no .ration-
    al basis for discriminating between Proups of the same natural
    class, classification on the basis 02 population has been
    termed arbitrary selection, and the law has been held to be
    special and local. Randolph v. State, supra.
        Where population might have served as a rational basis for
        classification, if the object and purpose of the law had been
        to increase the compensation of county officers, since the
        purpose of the particular law was to lowersuch compensation
        the classification was held to be inverted and the law special
        and local. Bexar County vb Tynan, supra.


One of the objects and purpoaes of the law under consideration is
to permit counties to appoint a purchasing agent, A natural class,
of course, includes all counties in the state. This law extends
such power only to those counties having a population, according
to the last preceding Federal Census or any future Federal
                                                    .      Census,
of   not inore .thPn-ll+Q,CCQgr riiore -
     'W                                                       .9
than 220,000 inhabitants, $he only county meeting'these requirements,
at the time of the passage of the law, was Jefferson County.
As heretofore stated, Section 4 of the law under consideration ap-
plies only to counties having a population of 140,000 inhabitants
to 220,000 inhabitants according to the 1940 Federal Census. There-
fore! Jefferson County comes within the prov,$sionsof the above
mentloned,section, Oounties oftlesser or greater population
are not premitted to exercise the power of appointing a purchasing
agent by said Senate Bill No. 262‘ We have failed to find any
general statute authorizing oounties to employ or appoint purchas-
ing agents. It is our opinion that the classification is a mere
designation which is no classification at all, but, on the contrary,
is inverted and discriminatory as a law considered by the Supreme
Court in the Tynan :oase, supra (Also see the case of Miller et al.,
v. El.Paso County, 150 S.N. (2j 1000)‘
Section 4 of the act creates the office of purchasing agent and
prescribes the powers and duties of the officer holding such office,
If population affords a ground for creating the office of County
Purchasing Agent, it must be upon one of two theories:
(1) The smalle'rthe population of the County, the greater the need
of such an office,
Honorable Shelby E. Long, page 6            O-5326


(2) The greater~the population of the County,,the greater the need
of such an off,ice.
The bracket is from 140,000 to 220,000. Upon the first theory the
law is arbitrary and discriminatory because itexcludes counties
below 140,000, which would have a greater need than the counties
in the bracket. Upon the second theory the law is likewise arbi-
trary and discriminatory in that it does not embrace counties hav-
ing a population above 220,000~,~
                                which counties would have a greater
need for a purchasing agent than counties within the bracket.
In view of the foregoing authorities it ia our opinion that Section
4.60fthe act clearly violates the provisions of Article III, Section
    of the State Constitution and is therefore unconstitutional and
void. It is our further opinion that in view of Section 5 of said
Act, the entire Act is of no force and effect, aa'the Legislature
declares in effect that it would not have passed the remaining parts
of the Act had it known any part or parts thereof would be declared
unconstitutional.
We enclose herewith a copy of our opinion No. O-2221.
                                       Yours very truly
                                   ATTORNEY GENERAL ~OF TEXAS

                                   By (s) Ardell Williams
                                                Assistant
AW:mp;ml
APPROVED Jun. 9, 1943                  (This Opinion Considered and
(s) Grover Sellers                      approved in Limited Conference)
First Assistant Attorney General
                                       APPROVED
                                       Opinion Committee
                                       By B.W.B. Chairman
